United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) GRANTING RESPONDENT'S
MOTION TO DISMISS [Dkt. 6], (2) DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS, AND (3) DENYING CERTIFICATE OF
APPEALABILITY AND PERMISSION TO APPEAL IN FORMA
Nancy G. Edmunds United States District Judge.
Bell, (“Petitioner”), a Michigan Department of
Corrections prisoner serving a life sentence, filed this
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The petition challenges Petitioner's Wayne
Circuit Court jury trial conviction of two counts of
first-degree murder, Mich. Comp. Laws § 750.316, two
counts of armed robbery, Mich. Comp. Laws § 750.529, one
count of conspiracy to commit armed robbery, Mich. Comp. Laws
§ 750.157a, and possession of a firearm during the
commission of a felony. Mich. Comp. Laws § 750.227b.
Court interprets the petition to be raising the following
claims: (1) Petitioner was denied the effective assistance of
counsel when his trial attorney failed to call two alibi
witnesses at trial, (2) trial counsel was ineffective for
failing to request a cautionary instruction, (3) and (7) the
state court unconstitutionally failed to review claims
presented in Petitioner's third petition for
post-conviction review, (4) and (5) trial counsel failed to
conduct an adequate pretrial investigation, (6) Petitioner
was denied the effective assistance of appellate counsel for
failing to present ineffective assistance of trial counsel
claims on direct appeal, and (8) the court rule relied upon
by the state court to deny Petitioner's third
post-conviction review proceeding was inadequate.
matter is before the Court on Respondent's motion to
dismiss the petition as untimely filed. Petitioner has not
filed a response to the motion, but his petition asserts that
review of his claims is permitted based on his showing of
actual innocence. The Court will grant Respondent's
motion and dismiss the case because Petitioner failed to
comply with the one-year limitations period under 28 U.S.C.
§2244(d), and Petitioner has failed to demonstrate that
he is actually innocent. The Court will also deny Petitioner
a certificate of appealability and deny permission to proceed
on appeal in forma pauperis.
convictions arise from an incident occurring on July 29,
1999, in which Petitioner and his co-defendant, Troy King,
conspired to rob two women who were working as prostitutes.
Petitioner stood trial twice. His first trial ended with a
hung jury. The evidence presented at Petitioner's second
trial indicated that King brought the two women to a house
where Petitioner was waiting. When the victims arrived at the
house, evidence was presented indicating that Petitioner shot
both women during the course of the robbery. The bodies were
wrapped in blankets and dumped at another location in
his conviction and sentence, Petitioner filed an appeal of
right in the Michigan Court of Appeals. On May 15, 2003, the
Michigan Court of Appeals issued an unpublished opinion
affirming the convictions, but vacating one armed robbery
conviction on double jeopardy grounds. People v.
Bell, No. 239518, 2003 WL 21130164 (Mich. Ct. App. May
15, 2003). Petitioner then filed an application for leave to
appeal in the Michigan Supreme Court. On November 24, 2003,
the Michigan Supreme Court denied Petitioner's
application by standard order. People v. Bell, 671
N.W.2d 878 (Mich. 2003) (table).
three years later, on March 29, 2007, Petitioner filed his
first motion for relief from judgment in the state trial
court. The court denied the motion on October 1, 2007. See
Dkt. 7-21. Petitioner filed a delayed application for leave
to appeal in the Michigan Court of Appeals. On August 22,
2008, the Michigan Court of Appeals denied the application in
a standard order. People v. Bell , No. 283337 (Mich.
Ct. App. Aug. 22, 2008). Petitioner applied for leave to
appeal to the Michigan Supreme Court, but his application was
denied on January 9, 2009. People v. Bell, 759
N.W.2d 24 (Mich. 2009) (table).
five years later, on January 28, 2014, Petitioner filed a
second motion for relief from judgment in the trial court.
The trial court denied the motion on February 5, 2014.
August 15, 2014, Petitioner filed a third motion for relief
from judgment in the trial court. On August 25, 2014, the
trial court summarily denied the motion. See Dkt. 7-23.
Petitioner then filed a delayed application for leave to
appeal in the Michigan Court of Appeals. On October 24, 2014,
the Michigan Court of Appeals dismissed the application
pursuant to Michigan Court Rule 6.502(G), which prohibits the
filing of successive post-conviction proceedings. People
v. Bell, No. 323675 (Mich. Ct. App. Oct. 24, 2014).
Petitioner filed an application for leave to appeal in the
Michigan Supreme Court. On September 29, 2015, the Michigan
Supreme Court denied the application under Rule 6.502(G).
People v. Bell, 869 N.W.2d 604 (Mich. 2015) (table).
dated his federal habeas petition on April 7, 2016. Because
Petitioner is proceeding pro se, the petition is considered
filed as of the date he signed it under penalty of perjury.
See Towns v. United States, 190 F.3d 468, 469 (6th
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides a one-year period of limitation for a habeas
petition filed by a state prisoner seeking habeas relief from
a state court judgment. 28 U.S.C. § 2244(d)(1). The
limitation runs from one of four specified dates, usually
either the day when the judgment becomes final by the
conclusion of direct review or the day when the time for
seeking such review expires. § 2244(d)(1)(A). The
limitation period is tolled while “a properly filed
application for State post-conviction or other collateral
review . . . is pending.” § 2244(d)(2).
2244(d)(1)(A) provides the operative date from which the
one-year limitations period is measured in this case. No
other starting point appears in the record. Under section
2244(d)(1)(A), the one-year limitations period runs from
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” Here, that date is February 22,
2004, the last day Petitioner could have filed a petition for
a writ of certiorari in the United States Supreme Court - 90
days after the Michigan Supreme Court denied Petitioner's
application for leave to appeal on November 24, 2003. See
Jimenez v. Quarterman, 555 U.S. 113, 120 (2009) (a