Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cohen v. Brewer

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

May 14, 2018

James Cohen, Jr., Petitioner,
v.
Shawn Brewer, Respondent.

          Elizabeth A. Stafford Mag. Judge.

          OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [12], DENYING PETITIONER'S MOTION TO AMEND THE PETITION AND FOR A STAY AS MOOT [11], DENYING CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS.

          JUDITH E. LEVY United States District Judge.

         Petitioner 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.

         I. Background

         Petitioner 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.

         Petitioner 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 post-conviction proceedings.

         On 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.

         The 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).

         On 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.

         Respondent 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.

         II. Analysis

         a. Statute of Limitations

         The 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.