United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
H. CLELAND UNITED STATES DISTRICT JUDGE.
Depree Greene, (“Petitioner”), incarcerated at
the Kinross Correctional Facility in Kincheloe, Michigan,
seeks the issuance of a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his pro se application,
Petitioner challenges his conviction for third-degree fleeing
and eluding, [1" name="FN1" id=
"FN1">1] driving on a suspended license,
being a fourth felony habitual offender. Respondent filed
a motion to dismiss, contending that the petition was not
timely filed in accordance with the statute of limitations
contained in 28 U.S.C. § 2244 (d)(1). Petitioner filed a
response to the motion. For the reasons stated herein, the
court will summarily dismiss with prejudice the petition for
writ of habeas corpus pursuant to 28 U.S.C. §
was convicted following a jury trial in the Jackson County
Circuit Court. On December 19, 2002, Petitioner was sentenced
to three to fifteen years in prison. The Michigan Court of
Appeals affirmed Petitioner's conviction on April 27,
2014. People v. Greene, No. 245899, 2004 WL 895956
(Mich. Ct. App. Apr. 27, 2004). Petitioner did not file an
application for leave to appeal to the Michigan Supreme
27, 2005, Petitioner filed a post-conviction motion for
relief from judgment pursuant to Mich. Ct. R. 6.500, et.
Seq. After the trial judge denied the motion
and the Michigan Court of Appeals denied Petitioner's
application for leave to appeal, collateral review of
Petitioner's conviction ended in the state courts on
November 29, 2006, when the Michigan Supreme Court denied
Petitioner's post-conviction appeal. People v.
Greene, 723 N.W.2d 855 (Mich. 2006).
August 9, 2007, Petitioner filed a second motion for relief
from judgment, which was denied on the same
date. There is no indication from the Jackson
County Circuit Court docket sheet, the Michigan Court of
Appeals website, or Westlaw that Petitioner ever appealed the
denial of this motion to the Michigan appellate
25, 2015, Petitioner filed what he labeled a motion for
independent action under Mich. Ct. R.
2.612(c)(1)(d). The court denied the motion. People v.
Greene, No. 02-003923-FH (Jackson Cty.Cir.Ct. Apr. 21,
2016). The Michigan Court of Appeals dismissed
Petitioner's appeal. The Michigan Court of Appeals ruled
that Petitioner could not use Mich. Ct. R. 2.612(c)(1)(D) and
(3) to bring a post-appeal challenge to his conviction. The
Michigan Court of Appeals further held that Petitioner was
barred under Mich. Ct. R. 6.502(G) from appealing the denial
of a successive post-conviction motion for relief from
judgment. People v. Greene, No. 333218 (Mich.Ct.App.
July 15, 2016). On January 31, 2017, the Michigan Supreme
Court denied Petitioner's application for leave to appeal
because Petitioner's motion for relief from judgment was
prohibited by Mich. Ct. R. 6.502(G). People v.
Greene, 889 N.W.2d 273 (Mich. 2017).
habeas petition was signed and dated March 17, 2017, and
filed with the court on April 5, 2017.
Statute of Limitations
U.S.C. § 2244(d) imposes a one-year statute of
limitations upon petitions for habeas relief:
(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
originally 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.
not jurisdictional, the one year limitations period under 28
U.S.C. § 2244(d) “effectively bars relief absent a
showing that the petition's untimeliness should be
excused based on equitable tolling and actual
innocence.” Akrawi v. Booker, 572 F.3d 252,
260 (6th Cir. 2009). A petition for writ of habeas
corpus must be dismissed where it has not been filed within
the one year statute of limitations. See Holloway v.
Jones, 166 F.Supp.2d 1185');">166 F.Supp.2d 1185, 1187 (E.D. Mich. 2001).
habeas petitioner appeals to the Michigan Supreme Court, but
does not petition the United States Supreme Court for a writ
of certiorari, his judgment of conviction is finalized when
the time for taking an appeal to the United States Supreme
Court expires. An individual has 90 days from the entry of
his judgment to seek an appeal to the Supreme Court by filing
a petition for a write of certiorari. See Sup.Ct. R. 13
(stating that a petition for a writ of certiorari “is
timely when it is filed with the Clerk of [the Supreme] Court
within 90 days after entry of judgment”). The one-year
statute of limitations governing a petition for habeas corpus
does not begin to run until the day after the petition for a
writ of certiorari is due in the United States Supreme ...