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Brosch v. Warren

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

July 31, 2015

TRACEY BROSCH, Petitioner,
v.
MILLICENT WARREN, Respondent.

OPINION AND ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSAL OF THE HABEAS PETITION, DENYING AS MOOT PETITIONER'S MOTION FOR IMMEDIATE RELEASE, DISMISSING THE HABEAS CORPUS PETITION WITH PREJUDICE, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

DENISE PAGE HOOD, District Judge.

This matter has come before the Court on petitioner Tracey Brosch's pro se habeas corpus petition under 28 U.S.C. § 2254. Also pending before the Court are Petitioner's motion for immediate release from custody and respondent Millicent Warren's motion for summary judgment and dismissal of the petition. Petitioner is challenging her 2006 state conviction for one count of first-degree child abuse. Respondent argues in her pending motion for summary judgment and dismissal of the petition that Petitioner failed to comply with the one-year statute of limitations. For the reasons given below, the Court agrees that the habeas petition is time-barred. Consequently, Respondent's motion will be granted, and the habeas petition will be dismissed as time-barred. Petitioner's motion for immediate release will be denied as moot because it appears that she has already been released from state custody.

I. BACKGROUND

Following a jury trial in Oakland County Circuit Court, Petitioner was convicted of first-degree child abuse, Mich. Comp. Laws § 750.136b(2). The conviction arose from allegations that Petitioner abused her fourteen-month-old adopted daughter. On August 1, 2006, the trial court sentenced Petitioner to imprisonment for eight to fifteen years.

On appeal from her conviction and sentence, Petitioner alleged that (1) the prosecutor committed misconduct during closing arguments, (2) there was insufficient evidence to support her conviction, (3) the trial court abused its discretion when it departed from the state sentencing guidelines, (4) her trial attorney was ineffective, and (5) the trial court was biased. The Michigan Court of Appeals affirmed Petitioner's conviction after determining that none of her claims warranted relief. See People v. Brosch, No. 273060, 2008 WL 540301 (Mich. Ct. App. Feb. 28, 2008). Petitioner attempted to file an application for leave to appeal in the Michigan Supreme Court, but on April 25, 2008, the Michigan Supreme Court returned her application because it was late.

Several years later on March 7, 2012, Petitioner submitted a motion for relief from judgment to the state trial court, along with a motion for release on bond and a motion for permission to file a brief exceeding fifty pages. The state trial court denied Petitioner's motion to file a brief exceeding fifty pages and returned Petitioner's motion for relief from judgment without filing it. See People v. Brosch, No. 06-206798-FH (Oakland County Cir. Ct. Mar. 8, 2012). Petitioner appealed the trial court's order, but the Michigan Court of Appeals denied leave to appeal without explanation, see People v. Brosch, No. 311915 (Mich. Ct. App. June 14, 2013), and on September 30, 2013, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues, see People v. Brosch, 495 Mich. 868; 843 N.W.2d 143 (2013).

On August 25, 2014, Petitioner signed and dated her habeas corpus petition, and on September 2, 2014, the Clerk of this Court filed the habeas petition. Petitioner raises fourteen issues: her statement to a detective; the prosecution's use of allegedly false facts in a police report and pre-sentence investigation report; the right to confront witnesses; the right to counsel of choice; the seating of a biased juror; the trial court's evidentiary rulings; the sufficiency of the evidence; the jury instructions; the sentence; appellate counsel; trial counsel; the prosecutor; and the trial judge. In her motion for immediate release from custody, Petitioner alleges that she is entitled to release on her own recognizance because she is being held in violation of her constitutional rights.

As noted above, Respondent contends in her motion for summary judgment that Petitioner's claims are barred from substantive review by Petitioner's failure to file a timely habeas petition. Petitioner replies that she is innocent and that she is entitled to equitable tolling of the limitations period.

II. ANALYSIS

A. The Statute of Limitations

1. 28 U.S.C. § 2244(d)

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a one-year period of limitation for state prisoners to file a federal habeas corpus petition. Wall v. Kholi, 562 U.S. 545, ___, 131 S.Ct. 1278, 1283 (2011) (citing 28 U.S.C. § 2244(d)(1)). The one-year limitations period runs from the latest of the following four dates:

(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 ...

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