United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS , DISMISSING THE PETITION FOR A WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
GERSHWIN A. DRAIN, UNITED STATES DISTRICT JUDGE
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Redwan Hussain (“Petitioner” or
“Hussain”) pleaded no contest to armed robbery
and conspiracy to commit armed robbery in the Oakland County
Circuit Court in 2012 and was ultimately sentenced to
concurrent terms of 9 to 60 years imprisonment in 2013. In
his pleadings, he raises claims concerning the voluntariness
of his plea, the effectiveness of defense counsel, and the
validity of his sentence. The matter is now before the Court
on Respondent's motion to dismiss the petition pursuant
to Rule 4 of the Rules Governing Section 2254 Cases for
failure to comply with the one-year statute of limitations
applicable to federal habeas actions. Petitioner has filed a
reply to that motion contending that his petition is timely
and/or that he is entitled to equitable tolling. For the
reasons that follow, the Court concludes that the habeas
petition is untimely and must be dismissed. The Court also
concludes that a certificate of appealability and leave to
proceed in forma pauperis on appeal must be denied.
Facts and Procedural History
Petitioner's convictions arise from the armed robbery of
a pharmacy in Lathrup Village, Oakland County, Michigan. Dkt.
No. 1 at 11 (Pg. ID 11). He tendered his no contest plea on
February 16, 2012 and the trial court sentenced him to
concurrent terms of 135 months to 60 years imprisonment on
May 17, 2012. Id. Petitioner subsequently moved to
file a delayed application for leave to appeal with the
Michigan Court of Appeals. Id. at 31 (Pg. ID 31).
While that matter was pending, Petitioner filed a motion for
re-sentencing with the trial court. Id. The trial
court granted that motion, conducted a re-sentencing hearing
on September 17, 2012, and re-sentenced him to concurrent
terms of 9 to 60 years imprisonment. Id. at 32 (Pg.
ID 32). The Michigan Court of Appeals granted
Petitioner's motion to file a delayed application for
leave to appeal and then dismissed the application as moot
due to the re-sentencing decision. People v.
Hussain, No. 311089 (Mich. Ct. App. April 22, 2013).
Petitioner did not seek leave to appeal with the Michigan
19, 2014, Petitioner filed a motion to correct his sentence
with the trial court, which was construed as a motion for
relief from judgment and denied. People v. Hussain,
No. 11-238929-FC (Oakland Co. Cir. Ct. July 1, 2014).
Petitioner filed a delayed application for leave to appeal
with the Michigan Court of Appeals, which was denied because
he “failed to meet the burden of establishing
entitlement to relief under MCR 6.508(D).” Dkt. No. 1
at 34 (Pg. ID 34). The court further explained that
Petitioner “raised grounds that could have been raised
previously and he has failed to establish both good cause for
failing to previously raise the issues and actual prejudice
from the irregularities alleged” as required under MCR
6.508(D)(3). People v. Hussain, No. 323758 (Mich.
Ct. App. Nov. 21, 2014). Petitioner then filed an application
for leave to appeal with the Michigan Supreme Court, which
was similarly denied. People v. Hussain, 498 Mich.
918, 871 N.W.2d 165 (Nov. 24, 2015). The Michigan Supreme
Court also denied reconsideration. People v.
Hussain, 499 Mich. 872, 874 N.W.2d 692 (March 8, 2016).
dated his federal habeas petition on April 5, 2016.
Respondent filed the instant motion to dismiss on October 17,
2016. Petitioner filed his reply on October 24, 2016.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241
et seq., became effective on April 24, 1996. AEDPA
includes a one-year period of limitations for habeas
petitions brought by prisoners challenging state court
judgments. The statute provides:
(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run 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
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the