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Porter v. Stewart

United States District Court, E.D. Michigan, Southern Division

July 31, 2015

INDIA PORTER, Petitioner,
v.
ANTHONY STEWART, Respondent.

OPINION AND ORDER 1) GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT [DKT. 12], 2) DISMISSING AMENDED PETITION FOR WRIT OF HABEAS CORPUS [DKT. 7], AND 3) DENYING A CERTIFICATE OF APPEALABILITY AND PERMISSION TO APPEAL IN FORMA PAUPERIS

TERRENCE G. BERG, District Judge.

India Porter, ("Petitioner"), a Michigan Department of Corrections prisoner, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges her Wayne Circuit Court convictions for two counts of assault with intent to commit murder, MICH. COMP. LAWS § 750.83, possession of a firearm by a felon, MICH. COMP. LAWS § 750.224f, and possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b. Petitioner was sentenced to 23-to-40 years for the assault conviction, 3-to-7 years for the felon in possession conviction, and a consecutive 2-year term for the felony-firearm conviction. The amended petition claims that Petitioner was denied the effective assistance of counsel when her trial attorney misadvised her concerning the benefits of a plea offer, resulting in her receiving longer sentence because she was convicted at trial.

This matter is before the Court on Respondent's motion for summary judgment, in which he asks the Court to dismiss the petition as untimely. Petitioner filed a response to the motion asserting that because her claim is based on the recent decision in Lafler v. Cooper, 566 U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), it was timely filed. For the reasons set forth below, the Court concludes that the petition was not timely filed. Consequently, the Court will grant the motion for summary judgment. The Court will also deny a certificate of appealability and leave to appeal in forma pauperis.

I. Background

On December 12, 2002, Petitioner was convicted after a jury trial of the offenses indicated above. Petitioner filed an appeal of right, but on June 29, 2004, the Michigan Court of Appeals issued an unpublished opinion affirming Petitioner's convictions. People v. Porter, No. 247486, 2004 WL 1460675, at *1 (Mich. Ct. App. June 29, 2004). Petitioner filed an application for leave to appeal in the Michigan Supreme Court, but it was denied on May 31, 2005. People v. Porter, 696 N.W.2d 719 (Mich. 2005) (table).

On May 17, 2006, Petitioner filed a motion for relief from judgment in the trial court. The trial court denied the motion in an opinion dated August 2, 2006. Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals. On October 23, 2007, the Michigan Court of Appeals denied the application. People v. Porter, No. 279449 (Mich. Ct. App. Oct. 23, 2007). Petitioner filed an application for leave to appeal in the Michigan Supreme Court, but it was denied on April 28, 2008. People v. Porter, 747 N.W.2d 274 (Mich. 2008) (table).

Over four years later, on May 23, 2012, Petitioner filed a second motion for relief from judgment in the trial court asserting her claim under Lafler v. Cooper . On October 5, 2012, the trial court rejected the motion, as prohibited by Michigan Court Rule 6.502(G)(2). Petitioner attempted to file a delayed application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals dismissed the application as being untimely filed. People v. Porter, No. 315789 (Mich. Ct. App. July 23, 2013). Petitioner filed an application for leave to appeal in the Michigan Supreme Court that was denied on November 25, 2013. People v. Porter, 839 N.W.2d 217 (Mich. 2013) (table).

While she was still pursuing her second round of state post-conviction remedies, Petitioner filed the instant action on March 21, 2013. Petitioner also filed a motion to stay the case so that she could complete exhaustion of her new claim. The Court granted the stay (Dkt. 6). Petitioner filed her amended petition on January 15, 2014, and the case was reopened on March 24, 2015.

II. Discussion

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In considering a motion for summary judgment, the Court will construe all facts in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). There are no genuine issues of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Id. If the movant carries its burden of showing an absence of evidence to support a claim, then the nonmovant must demonstrate by affidavits, depositions, answers to interrogatories and admissions that a genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 324-325 (1986). This standard of review may be applied to habeas proceedings. See Redmond v. Jackson, 295 F.Supp.2d 767, 770 (E.D. Mich. 2003).

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a oneyear statute of limitations applies to an application for writ of habeas corpus by a person in custody pursuant to a judgment of a state court. The one-year limitations period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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