United States District Court, E.D. Michigan
OPINION AND SUMMARILY DENYING THE PETITION FOR WRIT
OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
Donnell Sain, (“petitioner”), confined at the Gus
Harrison Correctional Facility in Adrian, Michigan, seeks the
issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, petitioner
challenges his conviction for armed robbery, Mich. Comp. Laws
§ 750.529; felony-firearm, Mich. Comp. Laws §
750.227b; and being a second felony habitual offender, Mich.
Comp. Laws § 769.10. Respondent filed a motion to
dismiss the petition, on the ground that it was not timely
filed in accordance with the statute of limitations contained
in 28 U.S.C. § 2244 (d)(1). Petitioner filed a traverse
or reply to the motion. For the reasons stated below, the
petition for a writ of habeas corpus is SUMMARILY
DENIED WITH PREJUDICE.
was convicted by a Muskegon County Circuit Court jury on June
21, 1990. Petitioner was sentenced on July 3, 1990 to thirty
to sixty five years in prison on the armed robbery conviction
and received a consecutive two year prison sentence on the
review of the petitioner's conviction ended in the
Michigan courts on January 31, 1995, when the Michigan
Supreme Court denied the application for leave to appeal
following the affirmance of the petitioner's conviction
on his appeal of right by the Michigan Court of Appeals.
People v. Sain, 448 Mich. 863, 528 N.W.2d 739 (1995)
26, 2004, petitioner filed a “Motion For Disclosure of
Agreement With or Concessions With Witnesses” with the
Muskegon County Circuit Court. (See Dkt. # 7-2, Pg ID
835-839). The motion was denied by the trial court on October
12, 2004. People v. Sain, No. 90-31833-FC (Muskegon
Cty. Cir. Ct., Oct. 12, 2004) (Dkt. # 7-2, Pg ID 862).
12, 2006, petitioner filed a “Motion to Obtain Records
and Documents” with the trial court. Petitioner sought
the production of the guilty plea transcripts from his
accomplice Brian K. Brooks in this case and in an unrelated
case, as well as the guilty plea transcript from prosecution
witness Shenita L. Sain. Petitioner claimed he needed these
transcripts to show that the prosecution had withheld
evidence that these witnesses had been offered immunity in
exchange for their testimony and that the witnesses had
perjured themselves when they denied the existence of any
such agreements at petitioner's trial. (Dkt. # 7-2, Pg ID
864-66). The judge granted this motion and ordered the
production of the transcripts. People v. Sain, No.
90-31833-FC (Muskegon Cty.Cir.Ct., June 23, 2006). (Dkt. #
7-2, Pg ID 869). On September 8, 2006, the transcripts were
sent to petitioner. See Letter from Muskegon County Circuit
Court Clerk's Office. (Dkt. # 7-2, Pg ID 871).
September 20, 2007, petitioner filed a post-conviction motion
for relief from judgment with the trial court. The motion was
denied. People v. Sain, No. 90-31833-FC (Muskegon
Cty.Cir.Ct., June 2, 2008). The Michigan appellate courts
denied petitioner leave to appeal. People v.
Sain, No. 292349 (Mich.Ct.App. July 21, 2009); lv.
den. 485 Mich. 1126, 780 N.W. 2D 257 (2010).
February 13, 2015, petitioner filed a second post-conviction
motion for relief from judgment with the trial court. The
judge rejected the motion pursuant to Mich.Ct.R. 6.502(G),
because petitioner's motion was not based on a
retroactive change in the law or newly discovered evidence.
People v. Sain, No. 90-31833-FC (Muskegon
Cty.Cir.Ct., Feb. 24, 2015).
March 2, 2017, petitioner filed a motion for the court to
take judicial notice of its own records or adjudicative
facts, and to take judicial notice of facts and judicial
notice of a retroactive change in law. The motion was
rejected as an improperly filed successive motion for relief
from judgment on May 5, 2017. People v. Sain, No.
90-31833-FC (Muskegon Cty.Cir.Ct., May 5, 2017)(See Muskgeon
County Circuit Court Docket Entries, 92, 93, 94)(Dkt. # 7-3,
Pg ID 1003).
habeas application is signed and dated July 11,
statute of limitations context, “dismissal is
appropriate only if a complaint clearly shows the claim is
out of time.” Harris v. New York, 186 F.3d
243, 250 (2nd Cir. 1999); See also Cooey v.
Strickland, 479 F.3d 412, 415-16 (6th Cir. 2007).
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), which was signed into law on April 24,
1996, amended the habeas corpus statute in several respects,
one of which was to mandate a statute of limitations for
habeas actions. 28 U.S.C. § 2244(d) imposes a one-year
statute of limitations upon petitions for habeas relief:
(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