United States District Court, E.D. Michigan, Southern Division
WILLIAM M. SNEED, ESQ. THOMAS D. CUNNINGHAM, ESQ.
JOHN B. WILLIAMS, ESQ. MARY A. LOPATTO, ESQ.
J. Tarnow Senior United States District Judge.
Eugene Brown, (“petitioner”), confined at the
Macomb Correctional Facility in New Haven, Michigan, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, challenging his conviction for second-degree
murder, M.C.L.A. 750.317. Respondent filed a motion to
dismiss the petition on the ground that petitioner failed to
comply with the statute of limitations contained in 28 U.S.C.
§ 2244(d)(1). For the reasons stated below, the petition
for a writ of habeas corpus is SUMMARILY
was charged with first-degree felony murder and crime with a
weapon but pleaded guilty to the lesser offense of
second-degree murder in the Detroit Recorder's
Court. On February 6, 1979, petitioner was
sentenced to a parolable life sentence.
conviction was affirmed on appeal by the Michigan Court of
Appeals on October 7, 1981. There is no indication petitioner
appealed to the Michigan Supreme Court.
1993, petitioner filed with the trial court a post-conviction
motion for relief from judgment pursuant to M.C.R. 6.500,
et seq., which was denied. People v. Brown,
No. 78-3468 (Detroit Recorder's Court, Oct. 11, 1993).
There is no indication petitioner appealed the denial of the
post-conviction motion to the state appeals
September 16, 2005,  petitioner filed with the trial court a
second post-conviction motion for relief from judgment
pursuant to M.C.R. 6.500, et seq., which was denied.
People v. Brown, No. 78-003468 (Wayne County Cir.Ct.
Oct. 25, 2005). There is no indication petitioner appealed
the denial of the post-conviction motion to the state appeals
instant petition was filed with this Court on June 27, 2017.
has filed a motion to dismiss the petition for writ of habeas
corpus on the ground that the petition was not filed in
compliance with the statute of limitations. In the statute of
limitations context, “dismissal is appropriate only if
a complaint clearly shows the claim is out of time.”
Harris v. New York, 186 F.3d 243, 250 (2d Cir.1999);
See also Cooey v. Strickland, 479 F.3d 412, 415-16
(6th Cir. 2007).
the Antiterrorism and Effective Death Penalty Act (AEDPA), a
one year statute of limitations shall apply to an application
for writ of habeas corpus by a person in custody pursuant to
a judgment of a state court. The one year statute of
limitation 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
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made