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Garvin v. MacLaren

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

September 26, 2017

STANFORD GARVIN, Petitioner,
v.
DUNCAN MACLAREN, Respondent.

          MEMORANDUM AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (DOC. 5) 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. Stanford Garvin (Petitioner) is a state prisoner serving a sentence of 60 to 90 years. The petition challenges Petitioner's 1989 guilty plea convictions of assault with intent to commit murder, M.C.L. § 750.83, unlawful driving away of an automobile, M.C.L. § 750.413, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b. The petition raises two claims: (1) Petitioner's direct appeal should be reinstated where the lack of a direct appeal violated his constitutional rights, and (2) Petitioner should be allowed to withdraw his plea.

         Before the Court is Respondent's motion to dismiss on the grounds the petition is untimely. For the reasons that follow, the motion will be granted.

         II. Background

         Petitioner pled guilty to the above offenses on September 14, 1988. The trial court sentenced him on February 16, 1989.

         According to Petitioner, “on or about 4/25/89, [he] sent a copy of his request for appointment of counsel” to the trial court. See Docs. 1, 7. He says that he “continued to send letters concerning the status of his request for appointment of counsel, right to appeal, but received no response. After years of letters, the Wayne County Clerks Office finally answered Petitioner's letter, dated April 21, 2009.” Id. The trial court's docket sheet, however, does not include any entries between the date of sentencing and an order for the production of transcripts dated July 30, 2009. Doc. 5, App'x B.

         Eventually, on July 30, 2009, the trial court granted Petitioner's request for appointment of counsel and appointed the State Appellate Defender to represent Petitioner.

         For reasons not known, appellate counsel did not file any post-conviction proceeding until years later. In September of 2014, a motion for relief from judgment was filed in the trial court. The trial court denied the motion on January 26, 2015. Doc. 5, App'x B.

         Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals. The Michigan Court of Appeals and Michigan Supreme Court denied Petitioner's application for leave in standard orders. People v. Garvin, No. 328480 (Mich. Ct. App. Sept.11, 2015); People v. Garvin, 499 Mich. 967 (June 26, 2016) (table).

         Petitioner signed and dated the instant petition on January 13, 2017.

         III. Discussion

         In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA). The 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).

         Here, Petitioner's conviction and sentence became final in 1990 when the time for him to file a direct appeal of his conviction expired. See Mich. Ct. R. 7.205(F) (1989). This occurred well before AEDPA's effective date of April 24, 1996. A prisoner, such as Petitioner, whose convictions became final before AEDPA's effective date, was given a one-year grace period to file their federal habeas petitions. Jurado v. Burt, 337 F.3d ...


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