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Tolbert v. Woods

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

February 16, 2017

KUNTA TOLBERT, #563579, Petitioner,
v.
JEFFREY WOODS, Respondent.

          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

         I. INTRODUCTION

         Michigan 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.

         The 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.

         II. FACTS AND PROCEDURAL HISTORY

         Petitioner's 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.

         Following 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).

         On July 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).

         On 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.

         Petitioner signed his federal habeas pleadings on May 4, 2016, and Respondent filed this motion on November 15, 2016. Petitioner has not replied.

         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. 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 ...

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