United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO APPEAL IN FORMA PAUPERIS
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
prisoner Benjamin Trice (“Petitioner”) has filed
a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner pled guilty to assault with
intent to commit murder and was convicted of possession of a
weapon during the commission of a felony (“felony
firearm”) following a jury trial in the Wayne County
Circuit Court. He was sentenced to consecutive terms of five
to fifteen years imprisonment and two years imprisonment in
2007. In his petition he raises claims concerning the
controlling sentencing guidelines, the voluntariness of his
plea, and improper advice by trial counsel.
convictions arise from the shooting of Paul Green following a
confrontation over Petitioner's alleged harassment of
Green's young niece. People v. Trice, No.
277293, 2008 WL 3979289, *1 (Mich. Ct. App. Aug. 26, 2008)
(unpublished decision on appeal of felony firearm
conviction). Petitioner was charged with two counts of
assault with intent to commit murder and felony firearm. At
trial, the trial court granted a directed verdict in
Petitioner's favor on one of the assault charges. The
jury was unable to reach a verdict on the other assault
charge, and the jury convicted Petitioner of felony firearm.
Petitioner subsequently pled guilty on the remaining assault
charge. Id. at *1, n. 1. On March 28, 2007, the
trial court sentenced Petitioner to five to fifteen years
imprisonment on the assault conviction and a consecutive term
of two years imprisonment on the felony firearm conviction.
sentencing, Petitioner filed an appeal of right from his
felony firearm jury conviction with the Michigan Court of
Appeals raising claims concerning the effectiveness of trial
counsel and the length of his sentence. The court denied
relief on the ineffective assistance of counsel claim, but
remanded for correction of the judgment of sentence to
reflect the proper jail credit. Id. at *1-2.
Petitioner did not further appeal to the Michigan Supreme
Court. Petitioner also filed a separate delayed application
for leave to appeal his assault with intent to murder guilty
plea conviction with the Michigan Court of Appeals raising
claims concerning the voluntariness of his plea, the
effectiveness of trial counsel, and the sentencing guidelines
range. Pet., p. 2. The court denied the application for lack
of merit in the grounds presented. People v. Trice,
No. 284530 (Mich. Ct. App. May 14, 2008). Petitioner then
filed an application for leave to appeal with the Michigan
Supreme Court, which was denied in a standard order.
People v. Trice, 484 Mich. 863, 769 N.W.2d 685 (Aug.
6, 2009). On March 22, 2010, Petitioner filed a motion for
relief from judgment with the trial court, which was denied
on September 30, 2010. See Register of Actions,
People v. Trice, No. 06-011918-01-FC (Wayne Co. Cir.
Ct.). Petitioner did not appeal to the Michigan appellate
signed and dated the instant federal habeas petition on April
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241
et seq., became effective on April 24, 1996. The
AEDPA includes a one-year period of limitations for habeas
petitions brought by prisoners challenging state court
judgments. The statute provides:
(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
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.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending shall not be
counted toward ...