Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nealy v. Balcarcel

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

February 27, 2018

DAVID NEALY, Petitioner,
v.
ERICK BALCARCEL, Respondent.

          Honorable Janet T. Neff, Judge

          REPORT AND RECOMMENDATION

          Ellen S. Carmody United States Magistrate Judge

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). The Court may sua sponte dismiss a habeas action as time-barred under 28 U.S.C. § 2244(d). Day v. McDonough, 547 U.S. 198, 209 (2006). After undertaking the review required by Rule 4, I conclude that the petition is barred by the one-year statute of limitations.

         Discussion

          I. Factual Allegations

          Petitioner David Nealy is incarcerated with the Michigan Department of Corrections at the St. Louis Correctional Facility (SLF) in St. Louis, Gratiot County, Michigan. In 2000, a jury of the Eaton County Circuit Court found Petitioner guilty of a variety of offenses- including first-degree criminal sexual conduct, kidnapping, armed robbery, home invasion, taking and driving away another's motor vehicle, and felony firearm-stemming from a crime spree occurring on November 14, 1999. On June 30, 2000, the court imposed sentences of 150 to 240 months for the home invasion conviction, 320 to 480 months each for the kidnapping and armed robbery convictions, 30 to 60 months for the conviction of taking and driving away another's vehicle, 324 to 600 months for each criminal sexual conduct conviction, 120 to 240 months for the conspiracy to commit first-degree home invasion conviction; 210 to 480 months each for the conspiracy to commit armed robbery and kidnapping convictions; and 260 to 480 months for the conspiracy to commit first-degree criminal sexual conduct conviction. He also received a consecutive two years' imprisonment for the felony-firearm conviction.

         On March 8, 2016, Petitioner filed his habeas corpus petition. Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner signed his application on March 8, 2016. (Pet., ECF No. 1, PageID.14.) The petition was received by the district court for the Eastern District of Michigan on March 17, 2016. For purposes of this Report and Recommendation, I have given Petitioner the benefit of the earliest possible filing date. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner signs the document is deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins v. Saunders, 206 F. App'x 497, 498 n.1 (6th Cir. 2006)).

         Petitioner asserts a single claim in this action. He asserts that the state court arraigned him without due process and in violation of his right to counsel under the Sixth Amendment. He contends that this error deprived the state court of jurisdiction over him.

         II. Statute of Limitations

          Petitioner's application is barred by the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1), which became effective on April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). Section 2244(d)(1) provides:

(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 initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.