United States District Court, W.D. Michigan, Southern Division
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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an unpublished opinion issued on May 26, 2000, the court of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.)
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,
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.)
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.
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.)
Statute of Limitations
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 ...