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Nelson v. Campbell

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

March 26, 2018

RICKY NELSON, Petitioner,
v.
SHERMAN CAMPBELL, Respondent.

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. The Respondent has filed an answer (ECF No. 8) along with the state-court record (ECF Nos. 9-1 to 9-21), pursuant to Rule 5, Rules Governing § 2254 Cases. At initial screening of the Petitioner's habeas application under Rule 4, Rules Governing § 2254 Cases, the magistrate judge recommended that the petition be dismissed as time-barred under 28 U.S.C. § 2244(d). (See Report & Recommendation (R&R), ECF No. 3.) However, after reviewing Petitioner's objections and allegations concerning newly discovered evidence and equitable tolling, the undersigned affirmed in part and rejected in part the recommendation (ECF No. 5), concluding that the statute of limitations did not bar the petition on the then-existing record, and ordered Respondent to answer the petition. Having now reviewed the entire record, the Court concludes that the petition must be denied, because it is barred by the statute of limitations.

         Discussion

         I. Factual allegations

         Petitioner Ricky Nelson is incarcerated with the Michigan Department of Corrections at the Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. On January 19, 1999, a Kent County Circuit Court jury found Petitioner guilty of premeditated first-degree murder, Mich. Comp. Laws § 750.316a. On March 4, 1999, the court imposed a sentence of mandatory life imprisonment.

         Petitioner appealed his conviction to the Michigan Court of Appeals, raising an issue not presented in this habeas petition. (Pet'r's Br. on Appeal, ECF No. 9-11, PageID.315.) In an unpublished opinion issued on May 26, 2000, the court of appeals rejected all appellate grounds and affirmed the conviction. (Mich. Ct. Appeals Op., ECF No.9-11, PageID.305-311.) Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same ground. (Pet'r's' Appl. for Leave to Appeal, ECF No. 9-12, PageID.370.) The supreme court denied leave to appeal on October 30, 2000. (Mich. Ord. ECF No. 9-12, PageID.368.)

         On September 23, 2003, Petitioner filed a motion for relief from judgment in the Kent County Circuit Court, raising a number of claims of ineffective assistance of trial and appellate counsel not raised in Petitioner's habeas application. (Pet'r's First Mot. for Relief from J., ECF No. 9-13, PageID.463-465.) Petitioner filed a supplemental brief on October 8, 2003, raising additional arguments. (Pet'r's Suppl. Br. in Supp. of Mot. for Relief, ECF No. 9-14, PageID.684.) The trial court denied the motion on December 31, 2003. (Cir. Ct. Op. & Order, ECF No. 9-15, PageID.694-699.) Petitioner sought leave to appeal to both the Michigan Court of Appeals and the Michigan Supreme Court, which denied leave to appeal on June 24, 2005, and December 27, 2005, respectively. (See Mich. Ct. App. Order, ECF No. 9-16, PageID.700; Mich. Ord., ECF No. 9-17, PageID.793.)

         In June 2015, Petitioner filed a second motion for relief from judgment based on newly discovered evidence that his trial attorney had received a plea offer but failed to convey that offer to Petitioner. (Pet'r's Second Mot. for Relief from J., ECF No. 9-18, PageID.845-858.) Petitioner argued that the factual basis for his motion was discovered only when he received a response to a letter he sent to the trial court in 2014. The judge's response indicated that a pretrial plea offer had been made to Petitioner. Petitioner claimed ineffective assistance of trial counsel in not conveying the offer and ineffective assistance of appellate counsel in failing to discover and raise the error. The trial court denied the motion on June 26, 2015. (June 26, 2015, Cir. Ct. Ord., ECF No. 9-19, PageID.869.)

         Petitioner sought leave to appeal to the Michigan Court of Appeals. The court of appeals dismissed the appeal on October 21, 2015, for lack of jurisdiction, in accordance with Mich. Ct. R. 6.502(G)(1) (barring an appeal from the denial of a second motion for relief from judgment). (Mich. Ct. Appeals Ord., ECF No. 9-20, PageID.871.) Petitioner sought leave to appeal to the Michigan Supreme Court. The supreme court denied leave to appeal on September 29, 2015, because an appeal was prohibited by Mich. Ct. R. 6.502(G). (Mich. Ord, ECF No. 9-21, PageID.907.)

         On March 12, 2018, Petitioner filed his habeas corpus application in this Court. 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 December 16, 2016. (Pet., ECF No. 1, PageID.11.) The petition was received by the Court on December 22, 2016. For purposes of this Report and Recommendation, the Court has 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)). In his habeas application, Petitioner raises two grounds for relief: (1) ineffective assistance of trial counsel in failing to convey the plea offer; and (2) ineffective assistance of appellate counsel in failing to discover trial counsel's failure to convey the plea offer. (Pet., ECF No. 1, PageID.6-7.)

         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 ...

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