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Stewart v. Harry

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

March 30, 2017

NAYMON STEWART, Petitioner,
v.
SHIRLEE HARRY, Respondent.

          MEMORANDUM AND ORDER DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          AVERN COHN UNITED STATES DISTRICT JUDGE.

         I. Introduction

         This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Naymon Stewart (“Petitioner”) is proceeding pro se. Petitioner plead guilty to second-degree murder and possession of a firearm during the commission of a felony in state court and was sentenced to consecutive terms of 25 to 40 years imprisonment and two years imprisonment in 2012. In his petition, he challenges the validity of his plea and sentence raising claims concerning the factual basis for his plea, the effectiveness of trial and appellate counsel, the accuracy of his plea, the voluntariness of his plea, the scoring of the sentencing guidelines, and the trial court's refusal to reissue the judgment of sentence.

         Petitioner acknowledges that his habeas petition is untimely under the one-year statute of limitations applicable to habeas actions but says that he is entitled to equitable tolling of the one-year period based upon actual innocence because he acted in self-defense. For the reasons that follow, the petition will be dismissed as untimely.

         II. Procedural History

         Following sentencing, Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied on April 16, 2014. People v. Stewart, No. 320814 (Mich. Ct. App. April 16, 2014). Petitioner attempted to file an application for leave to appeal with the Michigan Supreme Court. However, the application was rejected as untimely under the 56-day time limit for filing such applications.

         On July 21, 2015, Petitioner filed a motion for relief from judgment in the trial court. The trial court denied the motion on August 21, 2105. People v. Stewart, No. 11-011355-01-FC (Wayne Co. Cir. Ct. Dkt.). He then filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied for failure to establish that the trial court erred in denying his motion for relief from judgment. People v. Stewart, No. 330906 (Mich. Ct. App. March 24, 2016). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied for failure to meet the burden of establishing entitlement to relief under Michigan Court Rule 6.508(D). People v. Stewart, 500 Mich. 896 (Nov. 30, 2016).

         On March 14, 2017, Petitioner dated and filed the petition.

         III. Discussion

         As noted above, there is a question as to whether Petitioner has complied with the one-year statute of limitations, as Petitioner himself appears to concede it is not timely. 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 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 ...

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