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Brown v. Haas

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

November 28, 2017

KENNETH EUGENE BROWN, Petitioner,
v.
RANDALL HAAS, Respondent.

          WILLIAM M. SNEED, ESQ. THOMAS D. CUNNINGHAM, ESQ. JOHN B. WILLIAMS, ESQ. MARY A. LOPATTO, ESQ.

          Arthur J. Tarnow Senior United States District Judge.

         Kenneth 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 DISMISSED.

         I. Background

         Petitioner 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.[1] On February 6, 1979, petitioner was sentenced to a parolable life sentence.

         Petitioner's conviction was affirmed on appeal by the Michigan Court of Appeals on October 7, 1981.[2] There is no indication petitioner appealed to the Michigan Supreme Court.

         In 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 courts.[3]

         On September 16, 2005, [4] 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 courts.[5]

         The instant petition was filed with this Court on June 27, 2017.

         II. Discussion

         Respondent 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).

         Under 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 ...

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