United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti, Mag. Judge.
OPINION AND ORDER (1) GRANTING RESPONDENT'S
MOTION FOR SUMMARY JUDGMENT , (2) DENYING CERTIFICATE OF
APPEALABILITY (3) AND DENYING PERMISSION TO APPEAL IN FORMA
E. LEVY, UNITED STATES DISTRICT JUDGE.
McCray (“Petitioner”), a Michigan Department of
Corrections prisoner, filed this petition for the writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The petition
challenges Petitioner's Saginaw Circuit Court guilty plea
convictions for second-degree murder, Mich. Comp. Laws §
750.317, assault with intent to commit murder, Mich. Comp.
Laws § 750.83, carrying a concealed weapon, Mich. Comp.
Laws § 750.227, and possession of a firearm during the
commission of a felony (felony-firearm). Mich. Comp. Laws
§ 750.227b. As a result of these convictions, Petitioner
is in Respondent's custody for a controlling term of 16
to 32 years for the murder conviction, lesser terms for the
other offenses, and a consecutive two years for the
petition raises three claims: (1) Petitioner was denied the
right to the effective assistance of appellate counsel when
the trial court allowed his appellate counsel to withdraw in
violation of Anders v. California, 385 U.S. 738
(1967), (2) Petitioner's appellate counsel was
ineffective for failing to raise a claim of ineffective
assistance of trial counsel, and (3) Petitioner was denied
his Sixth Amendment right to a jury trial when his sentencing
guidelines were scored based on facts not admitted by
Petitioner or found beyond a reasonable doubt by a jury.
before the Court is Respondent's motion to dismiss the
petition as being filed after expiration of the one-year
statute of limitations, which the Court will treat as a
motion for summary judgment. (Dkt. 5.) Petitioner has filed a
response to the motion, asserting that the delay in filing
the petition was the result of unconstitutional state action
and that he is entitled to equitable tolling. (Dkt. 6.) For
the reasons set forth below, the Court will grant
Respondent's motion and dismiss the case. The Court will
also deny Petitioner a certificate of appealability and deny
permission to proceed on appeal in forma pauperis.
October 30, 2008, Petitioner pleaded guilty to the above
offenses. Petitioner was sentenced on December 11, 2008. The
trial court docket sheet indicates that on January 8, 2009,
Petitioner requested the appointment of appellate counsel.
(Dkt. 5-3 at 5.) On January 29, 2009, attorney Ronald D.
Ambrose was appointed to represent Petitioner on appeal. The
transcripts of the trial court proceedings were prepared at
the request of appellate counsel in March of 2009.
September 14, 2009, appellate counsel filed a motion to
vacate his appointment. The docket sheet indicates that a
hearing was held on the motion on October 12, 2009, and
Petitioner was present. (Id. at 5-6.) The motion was
granted, and accordingly appellate counsel did not file any
appeal on Petitioner's behalf. (Id. at 6.)
one year later, on March 2, 2011, Petitioner filed
correspondence with the trial court concerning the scoring of
his sentencing guidelines. (Id.) The trial court
returned the letter on March 7, 2011, and provided Petitioner
with the form for filing a motion for relief from judgment.
September 2, 2011, Petitioner filed a pro se motion
for appointment of appellate counsel, and the trial court
denied it on September 13, 2011. (Id.)
January 21, 2012, Petitioner filed a pro se motion
to reissue the judgment, and the trial court denied it on
February 8, 2012. (Id.)
on November 21, 2012, Petitioner filed a motion for relief
from judgment which was denied on March 1, 2013.
(Id.) A motion for reconsideration was denied on
March 28, 2013. (Id. at 7.) Petitioner did not
two years later, on October 12, 2015, Petitioner filed a
second motion for relief from judgment. (Id.) The
trial court denied the motion on December 22, 2015.
filed a delayed application for leave to appeal in the
Michigan Court of Appeals. On May 24, 2016, the Michigan
Court of Appeals denied the application by standard order.
People v. McCray, No. 331385 (Mich. Ct. App. May 24,
2016). Petitioner then filed an application for leave to
appeal in the Michigan Supreme Court, but it was also ...