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Trice v. Trierweiler

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

July 13, 2018

BENJAMIN TRICE, #364067, Petitioner,
v.
TONY TRIERWEILER, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         Michigan 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.

         I.

         Petitioner's 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 Aug. 26, 2008) (unpublished decision on appeal of felony firearm conviction).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. Id.

         Following 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 courts.

         Petitioner signed and dated the instant federal habeas petition on April 19, 2018.[1]

         II.

         The 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 ...

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