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Jackson v. Burton

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

March 30, 2018

JERMAINE JACKSON, #616447, Petitioner,
v.
DEWAYNE BURTON, Respondent.

         OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING THE MOTION TO STAY THE PROCEEDINGS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Michigan prisoner Jermaine Jackson (“Petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as well as a motion to stay the proceedings. Petitioner was convicted of second-degree murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony following a jury trial in the Wayne County Circuit Court. He was sentenced as a fourth habitual offender to 60 to 90 years imprisonment, a concurrent term of two to five years imprisonment, and a consecutive term of two years imprisonment in 2012. In his petition, he asserts that the prosecutor violated his right to remain silent, that trial counsel was ineffective for failing to investigate and present witnesses, and that his sentence constitutes cruel and unusual punishment.

         Upon conducting an initial review of this case, the Court ordered Petitioner to show cause why his habeas petition should not be dismissed as untimely under the one-year statute of limitations applicable to federal habeas actions. Petitioner did not file a timely response to the Court's show cause order. Having further reviewed the matter, the Court concludes that the habeas petition is untimely and must be dismissed and that Petitioner's motion to stay the proceedings must be denied. The Court also concludes that a certificate of appealability and leave to proceed in forma pauperis on appeal must be denied.

         II. PROCEDURAL HISTORY

         As noted, Petitioner was convicted and sentenced in 2012. Following sentencing, he filed an appeal of right with the Michigan Court of Appeals raising his right to remain silent claim, as well as a claim challenging a crime victim assessment. The court remanded for the ministerial task of correcting the judgment of sentence as to the assessment claim, and denied relief on the right to remain silent claim. People v. Jackson, No. 312755, 2014 WL 198807 (Mich. Ct. App. Jan. 16, 2014) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Jackson, 497 Mich. 987, 861 N.W.2d 43 (April 1, 2015).

         On February 28, 2016, Petitioner filed a motion for relief from judgment with the state trial court raising his ineffective assistance of trial counsel and sentencing claims. See Pet., pp. 7-9. The trial court denied the motion on June 20, 2016. See Register of Actions, People v. Jackson, No. 12-005935-01-FC (Wayne Co. Cir. Ct.). Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, which was denied. People v. Jackson, No. 333934 (Mich. Ct. App. Sept. 30, 2016) (unpublished). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was also denied. People v. Jackson, 500 Mich. 981, 894 N.W.2d 49 (May 2, 2017).

         Petitioner dated his federal habeas petition on December 15, 2017.

         III. DISCUSSION

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., became effective on April 24, 1996. The AEDPA includes a one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. The statute 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 ...

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