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Gomez v. Kowalski

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

February 25, 2019

LUZ J. GOMEZ, Petitioner,
v.
JACK KOWALSKI, Respondent.

          Honorable Paul L. Maloney, Judge.

          REPORT AND RECOMMENDATION

          Timothy P. Greeley, United States Magistrate Judge.

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). The Court may sua sponte dismiss a habeas action as time-barred under 28 U.S.C. § 2244(d). Day v. McDonough, 547 U.S. 198, 209 (2006). After undertaking the review required by Rule 4, I conclude that the petition is barred by the one-year statute of limitations.

         Petitioner Luz J. Gomez is incarcerated with the Michigan Department of Corrections at the Kinross Correctional Facility (KCF) in Kincheloe, Michigan. Petitioner pleaded nolo contendere in the Muskegon County Circuit Court to one count of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b. On May 9, 2011, pursuant to a Cobbs agreement[1]capping the minimum sentence at 16 years, the court sentenced Petitioner to a prison term of 16 to 40 years.

         Petitioner placed his petition in the prison mailing system on February 4, 2019. (Pet., ECF No. 1, PageID.14.) The petition raises one multi-faceted issue: Petitioner Gomez was denied effective assistance of appellate counsel where on appeal that counsel failed to raise that trial counsel failed to object to the silent record as to the offense variable scoring, instead essentially stipulating to the correctness of the offense variable scoring. (Id., PageID.6; Pet'r's Br., ECF No. 1-1, PageID.21.)

         Petitioner's application is barred by the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1), which became effective on April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). Section 2244(d)(1) 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.

28 U.S.C. § 2244(d)(1).

         In most cases, § 2244(d)(1)(A) provides the operative date from which the one-year limitations period is measured. Under that provision, the one-year limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). According to his habeas application, Petitioner filed an application for leave to appeal his conviction to the Michigan Court of Appeals, which was denied on December 21, 2011. (Mich. Ct. App. Order, ECF No. 1-3, PageID.43.) Petitioner did not seek leave to appeal to the Michigan Supreme Court.

         Where a petitioner has failed to pursue an avenue of appellate review available to him, the time for seeking review at that level is counted under § 2244(d)(1)(A). See 28 U.S.C. § 2244(d)(1)(A) (time for filing a petition pursuant to § 2254 runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review”) (emphasis added). However, such a petitioner is not entitled to also count the 90-day period during which he could have filed a petition for certiorari to the United States Supreme Court. See Gonzalez v. Thaler, 132 S.Ct. 641, 655 (2012) (holding that, because the Supreme Court can review only judgments of a state's highest court, where a petitioner fails to seek review in the state's highest court, the judgment becomes final when the petitioner's time for seeking that review expires). Under Michigan law, a party has 56 days in which to apply for leave to appeal to the Michigan Supreme Court. See Mich. Ct. R. 7.302(C)(2). Accordingly, Petitioner's conviction became final on Wednesday, February 15, ...


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