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.

Smith v. Deangelo-Kipp

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

June 15, 2018

HENRY OSWALD SMITH, Petitioner,
v.
JODI DEANGELO-KIPP,[1] Respondent.

          OPINION AND ORDER (1) SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          PAUL D. BORMAN UNITED STATES DISTRICT COURT JUDGE.

         Henry Oswald Smith, (“Petitioner”), confined at the Woodland Center Correctional Facility in Whitmore Lake, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction for second-degree murder, Mich. Comp. Laws § 750.317. 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). For the reasons stated below, the petition for a writ of habeas corpus is summarily denied with prejudice.

         I. BACKGROUND

         Petitioner was convicted following a bench trial in the Detroit Recorder's Court.[2]

         Direct review of petitioner's conviction ended in the state courts on April 27, 1984, when the Michigan Supreme Court denied petitioner's application for leave to appeal following the affirmance of his conviction by the Michigan Court of Appeals. People v. Smith, No. 72589 (Mich.Sup.Ct. Apr. 27, 1984).

         Petitioner suggests in his supplement to the petition for writ of habeas corpus that he may have filed a post-conviction motion for relief from judgment with the state trial court on or about September 8, 2017. (See Dkt. 2, Pg ID 4-5). This Court has reviewed the websites for the Wayne County Circuit Court and the Michigan Court of Appeals. There is no indication that petitioner ever filed a post-conviction motion with the circuit court or appealed the denial of a post-conviction motion with the Michigan appellate courts.[3]

         Petitioner filed his habeas petition with the United States District Court for the Western District of Michigan on September 14, 2017. The case was transferred to this district. A second petition was filed in the Western District Court of Michigan on October 2, 2017. This petition was also transferred to this district and filed under Case # 17-13700. Both cases were consolidated into one case.

         II. DISCUSSION

         Respondent filed a motion to dismiss the petition for writ of habeas corpus on the ground that the petition was not filed in compliance with the statute of limitations. In the 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).

         The 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 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 prevented from filing by such State action;
(C) the date on which the constitutional right asserted was originally recognized by the Supreme Court if the right has been newly recognized by the Supreme Court and made ...

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.