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Ford v. Campbell

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

November 2, 2016

JONATHAN FORD, Petitioner,
v.
SHERMAN CAMPBELL, Respondent.

          OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (DKT. 6), DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (DKT. 1), DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS

          MARK A. GOLDSMITH, United States District Judge.

         Petitioner Jonathan Ford filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), challenging his Wayne County Circuit Court conviction for second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520c(1)(a). Petitioner was sentenced to 19 to 30 years' imprisonment. The petition raises three claims: (i) Petitioner should be allowed to withdraw his plea because he was not advised that he would be subject to life-time electronic monitoring, (ii) Petitioner should be allowed to withdraw his plea because he was not advised that his sentence would exceed the recommended sentencing guideline range, and (iii) Petitioner is entitled to resentencing because the sentencing guidelines were improperly scored.

         This matter is before the Court on Respondent's motion to dismiss the petition as untimely filed (Dkt. 6). Petitioner has not responded to the motion. For the reasons provided below, the Court grants Respondent's motion and dismisses the petition. The Court also denies Petitioner a certificate of appealability and permission to proceed on appeal in forma pauperis.

         I. BACKGROUND

         The charges against Petitioner involved an incident where he abducted an 11-year-old girl who was walking to school. Petitioner brought the girl into his house and forced her to engage in sexual intercourse. 6/1/2009 Plea Tr. at 6-9 (Dkt. 7-3). Petitioner was charged with first-degree criminal sexual conduct, kidnaping, and second-degree criminal sexual conduct.

         On June 1, 2009, a plea bargain was reached in which Petitioner pleaded guilty to second-degree criminal sexual conduct, and the other charges were dismissed. Id. at 3. The trial court sentenced Petitioner on June 17, 2009, in accordance with a sentencing agreement to 19 to 30 years in prison. Id. at 3-4; 6/17/2009 Sentencing Tr. at 6-7 (Dkt. 7-4).

         Petitioner did not file a direct appeal. Rather, on December 27, 2012, Petitioner filed a motion for relief from judgment in the trial court (Dkt. 7-5), raising what now form his three habeas claims. The trial court denied the motion on March 18, 2013. 6/20/2013 Op. & Order, No. 08-008020-01 (Wayne Cnty. Cir. Ct.) (Dkt. 7-10).

         Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals. On June 3, 2014, the Michigan Court of Appeals denied Petitioner's application in a standard order. People v. Ford, No. 319705 (Mich. Ct. App. June 3, 2014) (Dkt. 7-11). Petitioner then filed an application for leave to appeal in the Michigan Supreme Court. On February 4, 2015, the Michigan Supreme Court denied Petitioner's application. People v. Ford, 858 N.W.2d 464 (Mich. 2015) (table).

         Petitioner signed and dated the present federal habeas petition on February 2, 2016.

         II. ANALYSIS

         A. Statute of Limitations

         Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, applies to all habeas petitions filed after the Act's effective date, April 24, 1996, and imposes a one-year limitations period for habeas petitions. See 28 U.S.C. § 2244(d)(1). Petitioner's habeas petition was filed after April 24, 1996, and thus, the provisions of the AEDPA, including the limitations period for filing a habeas petition, apply. See Lindh v. Murphy, 521 U.S. 320, 337 (1997). 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 ...

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