United States District Court, E.D. Michigan, Southern Division
Elizabeth A. Stafford Mag. Judge.
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS , DENYING PETITIONER'S MOTION TO AMEND THE
PETITION AND FOR A STAY AS MOOT , DENYING CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
E. LEVY United States District Judge.
James Cohen, Jr., a state prisoner at the Cotton Correctional
Facility in Jackson, Michigan, has filed a pro se
habeas corpus petition challenging his convictions for
second-degree murder, Mich. Comp. Laws § 750.317, and
possession of a firearm during the commission of a felony
(“felony firearm”), Mich. Comp. Laws §
750.227b. Also before the Court are Respondent Shawn
Brewer's motion for dismissal of the petition and
Petitioner's motion to amend the petition and hold it in
abeyance. Because this petition is time-barred,
Respondent's motion is granted, the habeas petition is
dismissed, and the motion for a stay or to hold the petition
in abeyance is denied as moot.
was charged in Wayne County, Michigan with one count of
first-degree murder and one count of felony firearm.
Following a bench trial in Wayne County Circuit Court in
April 2013, the trial court found Petitioner guilty of
second-degree murder, as a lesser offense of first-degree
murder, and felony firearm. Petitioner moved for a new trial
on grounds that the trial court: (1) failed to consider the
lesser offense of voluntary manslaughter; (2) improperly
rejected the defense of self-defense; and (3) failed to
consider the defense of imperfect self- defense. On August
12, 2013, the trial court denied Petitioner's motion and
sentenced Petitioner to twenty-five to thirty-five years in
prison for the murder conviction and two years in prison for
the felony-firearm conviction.
did not file an appeal as of right, but at some point, he
requested appointment of appellate counsel, and on May 28,
2014, Wayne County Circuit Judge Michael M. Hathaway granted
Petitioner's request. Petitioner apparently lost contact
with the appointed attorney, and on September 15, 2014, Wayne
County Circuit Judge Robert J. Colombo, Jr., appointed
attorney Arthur James Rubiner to assist Petitioner with
September 11, 2015, Mr. Rubiner filed a motion for relief
from judgment on Petitioner's behalf. He argued that: (1)
the trial court deprived Petitioner of his constitutional
rights when it permitted the prosecution to admit his
out-of-court statements in evidence; (2) Petitioner was
deprived of due process when his handgun was linked to
bullets found at the crime scene; (3) the trial court
deprived Petitioner of due process when it rejected his claim
of self-defense; (4) Petitioner was deprived of effective
assistance of counsel when trial counsel failed to vigorously
pursue the issue of self-defense; (5) Petitioner's waiver
of a jury trial was involuntary; and (6) the trial court did
not sufficiently ascertain whether Petitioner's waiver of
a jury trial was knowing and voluntary.
trial court denied Petitioner's motion after concluding
that Petitioner had showed no bases for relief from judgment.
People v. Cohen, No. 13-000518-01-FC (Wayne Cty.
Cir. Ct. Dec. 9, 2014). Petitioner appealed the trial
court's decision, but the Michigan Court of Appeals
denied leave to appeal because Petitioner had failed to
establish that the trial court erred in denying his motion
for relief from judgment. See People v. Cohen, No.
330777 (Mich. Ct. App. Apr. 6, 2016). On November 30, 2016,
the Michigan Supreme Court denied leave to appeal because
Petitioner had failed to establish entitlement to relief
under Michigan Court Rule 6.508(D). See People v.
Cohen, 500 Mich. 897; 887 N.W.2d 400 (2016).
March 15, 2017, Petitioner signed and dated his habeas
petition, raising the first four claims that he presented to
the state court in his motion for relief from judgment. He
subsequently moved to amend his habeas petition and for a
stay of the federal proceeding while he exhausted state
remedies for the new claim that he was deprived of his appeal
of right and the assistance of counsel for that appeal.
then moved to dismiss the petition on the basis that
Petitioner's claims are barred from substantive review by
the applicable statute of limitations. Petitioner replied
that his petition is timely and, in the alternative, the
Court should equitably toll the limitations period because he
was deprived of a direct appeal and timely appointment of
counsel for a direct appeal.
Statute of Limitations
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
established a one-year period of limitations for state
prisoners to file their federal habeas corpus petitions.
Wall v. Kholi, 562 U.S. 545, 550 (2011) (citing 28
U.S.C. § 2244(d)(1)); Holbrook v. Curtin, 833
F.3d 612, 615 (6th Cir. 2016) (citing 28 U.S.C. §
2244(d)(1)), cert. denied sub nom. Woods v.
Holbrook, 137 S.Ct. 1436 (2017). The limitations period
runs from the latest of the following four dates:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time ...