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Hussain v. Barrett

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

November 30, 2016

REDWAN HUSSAIN, #737228, Petitioner,
v.
JOSEPH BARRETT, Respondent.

          OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [8], 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

         I. Introduction

         This is 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.

         II. 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 Supreme Court.

         On June 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).

         Petitioner 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.

         III. Discussion

         The 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 ...

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