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King v. Deangelo-Kipp

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

May 14, 2018

KORTEZ KING, Petitioner,


          DAVID M. LAWSON United States District Judge.

         Kortez King pleaded guilty in August 2010 to assaulting a prison employee and was sentenced to a prison term in November of that year. He did not file a timely direct appeal. He attempted to invoke his appellate remedies five years later, but the state appellate court rejected his filing as coming too late. Because his recent habeas corpus petition challenging his assault conviction likewise was filed out of time, the Court will dismiss it upon summary review. See Rule 4 of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring the Court to review promptly a habeas corpus petition when it is filed, and dismiss it if it plainly appears from the face of the petition that the petitioner is not entitled to habeas corpus relief).


         King is serving his sentence at the Woodland Center Correctional Facility in Whitmore Lake, Michigan. In his petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254, he alleges that he was convicted after pleading guilty in the Ionia County, Michigan circuit court of assault of a prison employee. He tendered his plea on August 31, 2010 and was sentenced on November 5, 2010 to one to five years in prison.

         King did not attempt to appeal his conviction until sometime in 2015. The Michigan Court of Appeals dismissed the appeal on July 5, 2016, because King's application for leave to submit a delayed appeal was not filed within the time period specified by Michigan Court Rule 7.205(G)(3) (2011), which sets a six-month time limit for filing delayed appeals. People v. King, No. 333438 (Mich. Ct. App. July 5, 2016). When Kings was sentenced, the time limit was one year. See Mich. Ct. Rule 7.205(F)(3) (2008). The version of the rule in effect does not matter, since King's filing was late even under the longer deadline. There is no indication that King attempted to file an application for leave to appeal to the Michigan Supreme Court.

         On September 1, 2016, King filed a post-conviction motion for relief from judgment in the trial court, which was denied. People v. King, No. 10-14872 (Ionia Cty. Cir. Ct. Nov. 20, 2017). He has not yet filed an appeal from the denial of that motion, although he says that he plans to do so.

         The petition for a writ of habeas corpus was filed in this Court on March 1, 2018. The petition is difficult to understand, but King appears to argue that he is mentally ill, he is the victim of retaliation at the prison where he is incarcerated, he was not provided witnesses at the sentencing hearing, and his trial counsel was ineffective. King also included statements that might suggest an argument that his guilty plea was coerced and that he was not mentally competent to plead.


         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became effective on April 24, 1996 and governs the filing date for this action because the petitioner filed his petition after the AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA amended 28 U.S.C. § 2244 to include a one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir. 2003). The one-year statute of limitations runs 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 prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). A habeas petition filed outside the prescribed time period must be dismissed. See Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000) (case filed 13 days after limitations period expired dismissed for failure to comply); W ...

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