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Greene v. MacLaren

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

November 21, 2017

LOREN DEPREE GREENE, Petitioner,
v.
DUNCAN MACLAREN, Respondent,

          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

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE.

         Loren 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, [2] and being a fourth felony habitual offender.[3] 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. § 2244(d)(1).

         I. Background

         Petitioner 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 Court.[4]

         On June 27, 2005, Petitioner filed a post-conviction motion for relief from judgment pursuant to Mich. Ct. R. 6.500, et. Seq.[5] 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).

         On August 9, 2007, Petitioner filed a second motion for relief from judgment, which was denied on the same date.[6] 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 courts.[7]

         On July 25, 2015, Petitioner filed what he labeled a motion for independent action under Mich. Ct. R. 2.612(c)(1)(d).[8] 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).

         Petitioner's habeas petition was signed and dated March 17, 2017, and filed with the court on April 5, 2017.[9]

         II. Discussion

         A. Statute of Limitations

         28 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.

         Although 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).

         If a 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 ...


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