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Thomas v. Hoffner

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

April 12, 2017

JAMES R. THOMAS, Petitioner,
v.
BONITA HOFFNER, Respondent.

          MEMORANDUM AND ORDER DENYING PETITIONER'S MOTION FOR EQUITABLE TOLLING (Doc. 2) AND DISMISSING THE PETITION AS UNTIMELY

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I.

         This is a habeas case under 28 U.S.C. § 2254. Petitioner James R. Thomas, a Michigan prisoner proceeding pro se, challenges his 1978 state court convictions, following a guilty plea, for second-degree murder and assault with intent to commit murder. Petitioner says that he is entitled to habeas relief because his trial attorney misadvised him and failed to object to an illusory plea bargain. Petitioner has also filed a motion for equitable tolling, in which he seeks a delayed start to the statute of limitations. For the reasons that follow, the motion for equitable tolling will be denied and the habeas petition will be dismissed as barred by the statute of limitations.

         II.

         Petitioner was charged with first-degree murder and assault with intent to commit murder. In 1978, Petitioner plead guilty to second-degree murder, M.C.L. § 750.317, and assault with intent to commit murder, M.C.L. § 750.83. He was sentenced to two concurrent terms of life imprisonment with the possibility of parole. The Michigan Court of Appeals affirmed Petitioner's convictions and Petitioner says that he did not seek further review in the Michigan Supreme Court.

         Several years later, on or about September 9, 2013, Petitioner filed a motion for relief from judgment in state court raising his claim about trial counsel. On April 1, 2014, the trial court denied Petitioner's motion. The Michigan Court of Appeals denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D), People v. Thomas, No. 323572 (Mich. Ct. App. Nov. 25, 2014). On November 24, 2015, the Michigan Supreme Court denied leave to appeal for the same reason. See People v. Thomas, 871 N.W.2d 166 (2015). On February 6, 2017, Petitioner filed his habeas petition, Doc. 1, and his motion for equitable tolling, Doc. 2.

         III.

         Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts “provides that district courts ‘must promptly examine' state prisoner habeas petitions and must dismiss the petition ‘[i]f it plainly appears . . . that the petitioner is not entitled to relief.' ” Day v. McDonough, 547 U.S. 198, 207 (2006). A preliminary question here is whether the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see 28 U.S.C. § 2244(d)(1), bars substantive review of Petitioner's claim about trial counsel. AEDPA governs this case because Petitioner filed his habeas petition after AEDPA was enacted. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Moreover, the Court is “permitted . . . to consider, sua sponte, the timeliness of a state prisoner's habeas petition.” Day v. McDonough, 547 U.S. at 209.

         As noted, AEDPA established a one-year period of imitations for state prisoners to file their federal habeas corpus petition. Wall v. Kholi, 562 U.S. 545, 440 (2011) (citing 28 U.S.C. § 2244(d)(1)). The limitations period runs from the latest of the following four dates:

(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 exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). The limitation period is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim ...


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