United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION
FOR DISMISSAL AND DENYING CERTIFICATE OF
CARAM STEEH UNITED STATES DISTRICT JUDGE
Trina Peake, a Michigan state prisoner currently incarcerated
at the Huron Valley Correctional Facility in Ypsilanti,
Michigan, filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254. She challenges her
manslaughter conviction. Respondent has filed a motion for
dismissal, arguing that the petition should be denied because
it is untimely. For the reasons stated herein, the Court
finds the petition for a writ of habeas corpus is untimely
and grants the Respondent's motion. The Court also
declines to issue Petitioner a certificate of appealability,
and grants her leave to proceed on appeal in forma
pleaded guilty in Kalamazoo County Circuit Court to
manslaughter. On October 22, 2012, she was sentenced to 7 to
15 years' imprisonment.
did not file a direct appeal in state court. On March 5,
2014, Petitioner filed a motion for relief from judgment in
the trial court. The trial court denied the motion on. April
23, 2014. See 4/23/142 Op. & Ord. (ECF No. 6-9).
Petitioner filed a delayed application for leave to appeal in
the Michigan Court of Appeals. The Michigan Court of Appeals
denied leave to appeal. See 3/30/15 Order,
People v. Peake, No. 324222 (ECF No. 6-10).
Petitioner then filed an application for leave to appeal in
the Michigan Supreme Court. The Michigan Supreme Court denied
leave to appeal. People v. Peake, 499 Mich. 855
(Feb. 2, 2016).
filed the pending habeas petition on March 23, 2016.
Respondent has filed a motion for dismissal on the ground the
petition was not timely filed.
argues that the petition is barred by the one-year statute of
limitations. A prisoner must file a federal habeas corpus
petition within one year of the “date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review . . . or
the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.” 28 U.S.C. §
2244(d)(1)(A) & (D). The one-year limitation period
begins at the expiration of the deadline for filing a
petition for a writ of certiorari to the United States
Supreme Court. Lawrence v. Florida, 549 U.S. 327,
333 (2007). In addition, the time during which a prisoner
seeks state-court collateral review of a conviction does not
count toward the limitation period. 28 U.S.C. §
2244(d)(2); Ege v. Yukins, 485 F.3d 364, 371-72 (6th
Cir. 2007). A properly filed application for state
post-conviction relief, while tolling the limitation period,
does not re-fresh the limitation period. Vroman v.
Brigano, 346 F.3d 598, 602 (6th Cir. 2003).
was sentenced on October 22, 2012. Because Petitioner did not
pursue a direct appeal in the state courts, the conviction
became final six months later on April 22, 2013, when the
time for filing a delayed application for leave to appeal
with the Michigan Court of Appeals expired. See Mich. Ct. R.
7.205(F)(3) (amended 2011). The one-year limitations period
applicable to habeas corpus petitions thus commenced on April
23, 2013 and continued to run until Petitioner filed a motion
for relief from judgment in the trial court on March 10,
2014. That motion, a properly filed motion for state-court
collateral review, tolled the limitations period with 43 days
remaining. See 28 U.S.C. § 2244(d)(2). The
limitations period resumed running on February 3, 2016, the
day after the Michigan Supreme Court denied Petitioner's
application for leave to appeal. The limitations period
continued running until it expired on March 17, 2016. The
petition was filed on March 23, 2016, six days after the
limitations period expired. Petitioner does not assert an
argument for equitable tolling in her petition and has not
responded to the motion. The Court finds no basis for
equitable tolling and will grant the motion for dismissal.
Certificate of Appealability
Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability (COA) is
issued under 28 U.S.C. § 2253. A district court must
“issue or deny a certificate of appealability when it
enters a final order adverse to the applicant. . . . If the
court issues a certificate, the court must state the specific
issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2).” Rule 11, Rules Governing
Section 2255 Proceedings.
certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
Courts must either issue a certificate of appealability
indicating which issues satisfy the required showing or
provide reasons why such a certificate should not issue. 28
U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re
Certificates of Appealability, 106 F.3d 1306, 1307 (6th
Cir. 1997). To receive a certificate of appealability,
“a petitioner must show that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (internal quotes and citations omitted).
case, the Court concludes that reasonable jurists would not
debate the Court's conclusion that the petition is
untimely. Therefore, the Court denies a certificate of