United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS AND DENYING CERTIFICATE OF APPEALABILITY
HONORABLE SEAN F. COX UNITED STATES DISTRICT JUDGE
Douglas Allen Plant, a state prisoner currently incarcerated
at the G. Robert Cotton Correctional Facility in Jackson,
Michigan, filed a pro se petition for a writ of
habeas corpus under 28 U.S.C. § 2254. He challenges his
convictions for two counts of armed robbery, and one count of
possession of a firearm during the commission of a felony.
Respondent has filed a motion to dismiss, arguing that the
petition should be dismissed because it is untimely. The
Court finds the petition for a writ of habeas corpus is
untimely and grants Respondent's motion. The Court also
declines to issue Petitioner a certificate of appealability.
a jury trial in St. Clair County Circuit Court, Petitioner
was convicted of two counts of armed robbery, Mich. Comp.
Laws § 750.529, and one count of felony firearm, Mich.
Comp. Laws § 750.227b. On April 27, 2009, he was
sentenced as a second habitual offender to 25 to 60
years' imprisonment for each of the armed robbery
convictions, to be served concurrently with one another and
consecutively to two years' imprisonment for the
filed an appeal of right in the Michigan Court of Appeals
arguing that insufficient evidence supported the
felony-firearm conviction, the felony-firearm conviction was
against the great weight of the evidence, and offense
variables 1 and 2 were improperly scored. The Michigan Court
of Appeals affirmed Petitioner's convictions and
sentences. People v. Plant, No. 292368, 2010 WL
4908277 (Mich. Ct. App. Dec. 2, 2010). Petitioner did not
file an application for leave to appeal in the Michigan
February 3, 2015, Petitioner filed a motion for relief from
judgment in the trial court. The trial court denied the
motion on June 4, 2015. 6/4/15 Order, ECF No. 6-12.
Petitioner filed a delayed application for leave to appeal in
the Michigan Court of Appeals. The Michigan Court of Appeals
denied leave to appeal. People v. Plant, No. 328040
(Mich. Ct. App. Aug. 19, 2015). The Michigan Supreme Court
also denied Petitioner's application for leave to appeal.
People v. Plant, 499 Mich. 983 (Mich. July 26,
filed the pending habeas petition on August 1, 2016.
argues that the petition is barred by the one-year statute of
limitations. Title 28 U.S.C. § 2254(d), as amended by
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
applies to all habeas petitions filed after its effective
date, April 24, 1996, and imposes a one-year limitations
period for habeas petitions. See 28 U.S.C. §
2244(d)(1). 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.” 28
U.S.C. § 2244(d)(1)(A) & (D). 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 reset the limitation period at zero.
Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir.
Michigan Court of Appeals denied Petitioner's direct
appeal on December 2, 2010. Michigan court rules allowed
Petitioner 56 days to apply for leave to appeal to the
Michigan Supreme Court. See Mich. Ct. R.
7.305(C)(2). Petitioner had until January 27, 2011, to file
an application to appeal in the Michigan Supreme Court.
Because Petitioner failed to file an application for leave to
appeal in the Michigan Supreme Court, the one year
limitations began to run on January 28, 2011. The limitations
period continued to run, uninterrupted, until it expired on
January 28, 2012.
motion for relief from judgment did not toll the limitations
period. The motion was filed on February 17, 2015, over three
years after the limitations period already expired.
Vroman, 346 F.3d at 602 (6th Cir. 2003) (holding
that the filing of a motion for collateral review in state
court serves to “pause” the clock, not restart
argues that his petition is not subject to the one-year
limitations period because his double jeopardy and
sufficiency of the evidence claims are jurisdictional in
nature. He claims that challenges to a court's
jurisdiction can be raised at any time. Federal courts on
habeas review have consistently held that AEDPA does not
provide an exception to the one-year statute of limitations
for claims that a state court lacked jurisdiction. See
Frazier v. Moore, 252 F. App'x 1, 4-5 (6th Cir.
2007). See also Jones-Bey v. Alabama, No.
2:14-cv-00376, 2014 WL 1233826, at *2 (N.D. Ala. March 25,
2014) (unpublished) (“There is no exception under
AEDPA's statute of limitation for a § 2254 claim
that the state court lacked jurisdiction.”);
Umbarger v. Burt, No. 1:08-cv-637, 2008 WL 3911988
(W.D. Mich. Aug. 19, 2008) (same); Griffin v.
Padula, 518 F.Supp.2d 671, 677 (D. S.C. 2007) (same).
AEDPA's one-year limitations period is not a
jurisdictional bar and is therefore subject to equitable
tolling where a habeas petitioner “shows (1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S.
631, 649 (2010) (internal quotation marks omitted).
Petitioner does not argue that ...