United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER 1) DENYING PETITIONER'S "MOTION TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR UNTIMELINESS, " [Dkt. 5], 2) SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS [Dkt. 1], 3) DENYING A CERTIFICATE OF APPEALABILITY, AND 4) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
DENISE PAGE HOOD, District Judge.
This is a habeas case brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner Kenneth Rideaux was convicted in the Oakland Circuit Court after a jury trial of two counts of third-degree criminal sexual conduct. MICH. COMP. LAWS § 750.520d(1)(b). He was sentenced as a fourth-time habitual offender to concurrent terms of 10-to-30 years in prison. The petition enumerates eighteen different grounds for relief.
Upon initial review of the petition, it appeared to the Court that review was barred by the statute of limitations under 28 U.S.C. §2244(d). The Court ordered Petitioner to show cause why the petition should not be dismissed as untimely, and Petitioner has filed a response. Petitioner acknowledges that his petition was filed after expiration of the one-year statute of limitations, but he asserts that he is entitled to equitable tolling because he is actually innocent. For the reasons stated below, the petition is dismissed for failure to comply with the statute of limitations. Petitioner's certificate of appealability and permission to appeal in forma pauperis are denied.
After Petitioner was convicted of the above offenses, he filed a direct appeal in the Michigan Court of Appeals. Petitioner's appeal raised four claims: 1) insufficient evidence was presented at trial to sustain Petitioner's convictions, 2) Petitioner's sentence violates the Eighth Amendment, 3) the trial court erred in sentencing Petitioner as a habitual offender, and 4) the trial court should have departed downwards from the sentencing guideline range. The Michigan Court of Appeals affirmed. ECF 1-2, pg ID 101; People v. Rideaux, No. 281533 (Mich. Ct. App. March 12, 2009). Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, but it was denied by standard order on September 11, 2009. ECF 1-2, pg ID 104; People v. Rideaux, No. 138764 (Mich. Sup.Ct. Sept. 11, 2009).
According to the petition, Petitioner filed a motion for relief from judgment in the trial court on July 21, 2010. The motion raised seventeen claims. The trial court denied the motion in an opinion and order dated July 20, 2012. ECF 1-2, pg ID 105-108. Petitioner appealed this decision through the state appellate courts. His application for leave to appeal was denied by the Michigan Court of Appeals on October 8, 2013. ECF 1-2, pg ID 109; People v. Rideaux, No. 314384 (Mich. Ct. App. Oct. 8, 2013). The Michigan Supreme Court then denied relief on May 27, 2014. ECF 1-2, pg ID 111; People v. Rideaux, No. 148137 (Mich. Sup.Ct. May 27, 2014).
Petitioner signed and dated his federal habeas petition on February 24, 2015.
II. Standard of Review
Upon the filing of a habeas corpus petition, the Court must promptly examine the petition to determine "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief...." Rule 4, Rules Governing Section 2254 Cases. If the Court determines that the petitioner is not entitled to relief, the Court shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) ("Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face"). A preliminary question in a habeas case brought by a state prisoneris whether Petitioner complied with the one-year statute of limitations. "[D]istrict courts are permitted... to consider sua sponte, the timeliness of a state prisoner's habeas petition. Day v. McDonough, 547 U.S. 198, 209 (2006).
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a one-year 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 ...