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McCray v. Burt

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

January 31, 2018

James McCray, Petitioner,
v.
S.L. Burt, Respondent.

          Anthony P. Patti, Mag. Judge.

          OPINION AND ORDER (1) GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT [5], (2) DENYING CERTIFICATE OF APPEALABILITY (3) AND DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS

          JUDITH E. LEVY, UNITED STATES DISTRICT JUDGE.

         James 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 felony-firearm charge.

         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.

         Presently 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.

         I. Background

         On 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. (Id.)

         On 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.)

         Over 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. (Id.)

         On 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.)

         On January 21, 2012, Petitioner filed a pro se motion to reissue the judgment, and the trial court denied it on February 8, 2012. (Id.)

         Finally, 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 appeal.

         Over 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. (Id.)

         Petitioner 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 ...


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