United States District Court, W.D. Michigan, Southern Division
HONORABLE PAUL L. MALONEY JUDGE.
REPORT AND RECOMMENDATION
PHILLIP J. GREEN UNITED STATES MAGISTRATE JUDGE.
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).
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). This petition was
filed more than eleven years after Petitioner was convicted
and sentenced. Acknowledging that significant delay,
Petitioner has moved the Court to equitably toll the statute
of limitations. (ECF No. 6.) After undertaking the review
required by Rule 4, I conclude that Petitioner is not
entitled to equitable tolling and, further, that the petition
is barred by the one-year statute of limitations.
Steven Lee Moy is incarcerated with the Michigan Department
of Corrections at the Muskegon Correctional Facility (MCF) in
Muskegon, Michigan. Following a jury trial in the Ingham
County Circuit Court, Petitioner was convicted of
first-degree felony murder, Mich. Comp. Laws §
750.316(1)(b). On March 7, 2007, the court sentenced
Petitioner to life imprisonment.
December 20, 2018, Petitioner filed his habeas corpus
petition. Under Sixth Circuit precedent, the application is
deemed filed when handed to prison authorities for mailing to
the federal court. Cook v. Stegall, 295 F.3d 517,
521 (6th Cir. 2002). Petitioner signed his application on
December 20, 2018. (Pet., ECF No. 1, PageID.4.) The petition
was received by the Court on December 26, 2018. For purposes
of this Report and Recommendation, I have given Petitioner
the benefit of the earliest possible filing date. See
Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008)
(holding that the date the prisoner signs the document is
deemed under Sixth Circuit law to be the date of handing to
officials) (citing Goins v. Saunders, 206 Fed.Appx.
497, 498 n.1 (6th Cir. 2006)).
Statute of Limitations
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