United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE MOTION TO DISMISS AND
COMPELLING ANSWER ADDRESSING PETITION'S MERITS AND THE
RULE 5 MATERIALS
HONORABLE SEAN F. COX UNITED STATES DISTRICT JUDGE
Roby, (“Petitioner”), presently confined at the
Muskegon Correctional Facility in Muskegon, Michigan, has
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, in which he challenges his conviction for
assault with intent to commit murder, carrying a weapon with
unlawful intent, felon in possession of a firearm, and
felony-firearm. Respondent filed a motion to dismiss,
contending that petitioner failed to comply with the statute
of limitations contained in 28 U.S.C. § 2244(d)(1).
Petitioner filed a reply to the motion. For the reasons
stated below, the motion to dismiss is denied and respondent
is ordered to file an answer addressing the merits of the
petition within sixty days of the Court's order.
was convicted following a jury trial in the Saginaw County
Circuit Court. Petitioner's direct appeals with the
Michigan courts ended on April 23, 2012, when the Michigan
Supreme Court denied petitioner leave to appeal after the
Michigan Court of Appeals affirmed his conviction. People
v. Roby, 491 Mich. 909; 810 N.W.2d 907 (2012).
filed a post-conviction motion for relief from judgment with
the trial court on May 20, 2013, which the trial court
denied. After the Michigan Court of Appeals denied petitioner
leave to appeal, collateral review of petitioner's
conviction ended in the state courts on May 2, 2016 when the
Michigan Supreme Court denied petitioner's
post-conviction appeal. People v. Roby, 499 Mich.
913, 878 N.W.2d 287 (2016).
habeas petition was signed and dated July 15, 2016.
has filed a motion to dismiss, contending that the current
application for writ of habeas corpus is time barred by the
one year statute of limitations contained in the
Antiterrorism and Effective Death Penalty Act. (AEDPA). Both
parties, however, have referred to matters outside of their
pleadings to support or oppose the motion to dismiss. On a
motion to dismiss, a federal district court may consider
“matters outside the pleading.” However,
“the motion shall [then] be treated as one for summary
judgment and disposed of as provided in Rule 56, and all
parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.”
Briggs v. Ohio Election Commission, 61 F.3d 487, 493
(6th Cir. 1995)(quoting Fed.R.Civ.P. 12(b)(6)). Because the
parties in this case have asked this Court to consider
matters outside the pleadings, the Court will view
Respondent's motion as one for summary judgment.
Pottinger v. Warden, Northpoint Training Center, 716
F.Supp. 1005, 1007 (W.D. Ky. 1989)(citing to Fed.R.Civ.P.
12(b)); See also Mayne v. Hall, 122 F.Supp.2d 86,
88, fn. 2 (D. Mass. 2000)(construing motion to dismiss habeas
petition as being time barred under the AEDPA's statute
of limitations as being a motion for summary judgment).
judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Sanders
v. Freeman, 221 F.3d 846, 851 (6th Cir. 2000). To defeat
a motion for summary judgment, the non-moving party must set
forth specific facts sufficient to show that a reasonable
factfinder could return a verdict in his favor.
Sanders, 221 F.3d at 851. The summary judgment rule
applies to habeas proceedings. See Redmond v.
Jackson, 295 F.Supp.2d 767, 770 (E.D. Mich. 2003).
the Antiterrorism and Effective Death Penalty Act (AEDPA), a
one year statute of limitations shall apply to an application
for writ of habeas corpus by a person in custody pursuant to
a judgment of a state court. See Corbin v. Straub,
156 F.Supp.2d 833, 835 (E.D. Mich. 2001). The one year
statute of limitation 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