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Bell v. Brewer

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

May 18, 2017

MATTHEW BELL, Petitioner,
v.
SHAWN BREWER, Respondent.

          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 PAUPERIS

          Hon. Nancy G. Edmunds United States District Judge.

         Matthew 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.

         The 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.

         This 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.

         I. Background

         Petitioner's 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 Detroit.

         Following 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).

         Over 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).

         Over 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.

         On 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).

         Petitioner 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 Cir. 1999).

         II. Discussion

         The 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).

         Section 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 ...


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