United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION
FOR DISMISSAL, DISMISSING THE PETITION FOR A WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE
prisoner Kunta Tolbert (“Petitioner”) has filed a
pro se Petition for a Writ of Habeas Corpus
(“Petition”) pursuant to 28 U.S.C. § 2254
alleging that he is being held in custody in violation of his
constitutional rights. Petitioner was convicted of two counts
of assault with intent to commit murder, felon in possession
of a firearm, and possession of a firearm during the
commission of a felony following a jury trial in the Wayne
County Circuit Court. He was sentenced, as a fourth habitual
offender, to concurrent terms of 25 to 40 years imprisonment
on the assault convictions, a concurrent term of two to five
years imprisonment on the felon in possession conviction, and
a consecutive term of two years imprisonment on the felony
firearm conviction in 2010. In his pleadings, he raises
claims concerning perjury by the police, invalid
warrant/illegal arrest and actual innocence, the jury
instructions, the conduct of the prosecutor, the conduct of
the police, fraud upon the court, and the effectiveness of
trial and appellate counsel.
matter is before the Court on Respondent's Motion for
Dismissal asserting that the Petition is untimely under the
one-year statute of limitations applicable to federal habeas
actions. Having reviewed the matter, the Court concludes that
the Petition is untimely and must be dismissed for failure to
comply with the one-year statute of limitations set forth at
28 U.S.C. § 2244(d). The Court also concludes that a
Certificate of Appealability and leave to proceed in forma
pauperis on appeal should be denied.
FACTS AND PROCEDURAL HISTORY
convictions arise from a shooting incident involving two
police officers responding to a carjacking near the Platinum
Plus Lounge in Detroit, Michigan during early morning hours,
October 2, 2008. The police officers testified at trial and
identified Petitioner as the man who shot at them.
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals raising claims
concerning perjury by the police and the jury instructions.
The court denied relief on those claims and affirmed his
convictions. People v. Tolbert, No. 298159, 2011 WL
6186840 (Mich. Ct. App. Dec. 13, 2011) (unpublished).
Petitioner filed an application for leave to appeal with the
Michigan Supreme Court, which was denied. People v.
Tolbert, 491 Mich. 938, 815 N.W.2d 128 (June 20, 2012).
19, 2013, Petitioner filed a motion for relief from judgment
with the state trial court raising claims concerning the need
for an evidentiary hearing, the jury instructions, perjury,
the effectiveness of trial and appellate counsel, the conduct
of the prosecutor, the verdict being against the great weight
of the evidence, and cumulative error. The court denied the
motion; it found the claims previously raised on appeal were
barred, that the remaining claims lacked merit, and that
Petitioner failed to establish good cause and actual
prejudice under Michigan Court Rule 6.508(D)(3) for not
raising those claims on direct appeal. People v.
Tolbert, No. 08-014671-01 (Wayne Co. Cir. Ct. Dec. 4,
2013). Petitioner filed a delayed application for leave to
appeal with the Michigan Court of Appeals, which dismissed it
as untimely under Michigan Court Rule 7.205(G)(3). People
v. Tolbert, No. 3224236 (Mich. Ct. App. Dec. 4, 2014).
Petitioner also filed an application for leave to appeal with
the Michigan Supreme Court; it was denied. People v.
Tolbert, 498 Mich. 905, 870 N.W.2d 895 (Oct. 28, 2015).
November 12, 2014, Petitioner submitted a second motion for
relief from judgment with the state trial court raising
claims concerning perjury by the police, fraud upon the
court, and invalid warrant/illegal arrest. In support of this
claim, he presented “newly-discovered” evidence
of an affidavit from carjacking victim, Constance Hill, who
stated that she did not see anyone shoot at the police, did
not know who shot, did not tell the police that she had, and
did not know how her name got on Petitioner's warrant.
Citing Michigan Court Rule 6.502, the trial court found that
Hill's affidavit was not “newly-discovered”
since her name was on the witness list. The Court summarily
denied the successive motion pursuant to Michigan Court Rule
6.504(B)(2). People v. Tolbert, No. 08-014671-01-FC
(Wayne Co. Cir. Ct. Jan. 30, 2015). Petitioner filed a
delayed application for leave to appeal with the Michigan
Court of Appeals, which was dismissed because no appeal can
be taken from the denial or rejection of a successive motion
for relief from judgment under Michigan Court Rule
6.502(G)(1). People v. Tolbert, No. 328014 (Mich.
Ct. App. Sept. 8, 2015). Petitioner attempted to file an
application for leave to appeal with the Michigan Supreme
Court; it was rejected as untimely on December 4, 2015.
See Affidavit by Court Clerk Larry Royster.
signed his federal habeas pleadings on May 4, 2016, and
Respondent filed this motion on November 15, 2016. Petitioner
has not replied.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241
et seq., became effective on April 24, 1996. The
AEDPA governs the filing date for this action because
Petitioner filed his Petition after the AEDPA's effective
date. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The
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 ...