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Brogan v. Horton

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

March 25, 2019

LARRY JOEL BROGAN, Petitioner,
v.
CONNIE HORTON, Respondent.

          REPORT AND RECOMMENDATION

          MAARTEN VERMAAT UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. The Respondent has filed an answer (ECF No. 10) along with the state-court record (ECF Nos. 11-1 through 11-8), pursuant to Rule 5, Rules Governing § 2254 Cases. After reviewing the state court record, I conclude that the petition is barred by the one-year statute of limitations.

         I. Background

         Petitioner Larry Joel Brogan is incarcerated with the Michigan Department of Corrections at the Chippewa Correctional Facility (URF) in Kincheloe, Michigan. Petitioner pleaded nolo contendere in the Kalamazoo County Circuit Court to first-degree criminal sexual conduct (CSC-I), in violation of Mich. Comp. Laws § 750.520b(1)(a), and using a computer to commit a crime, in violation of Mich. Comp. Laws § 752.797(3)(f). On May 13, 2013, the court sentenced Petitioner to concurrent prison terms of 12 years, 6 months to 25 years for the CSC-I offense and 7 to 20 years for the computer crime offense.

         On April 10, 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). If that date is unknown, the Court may use the date Petitioner signed the petition. 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)). Petitioner failed to identify the date he mailed the petition or the date that he signed it. (Pet., ECF No. 1, PageID.12.)

         The petition was received by the United States District Court for the Eastern District of Michigan on April 10, 2018. For purposes of this Report and Recommendation, I have used that date. Even if the Court were to work backwards from the date the petition arrived in the Eastern District by a week or two, as an estimate of the time it took the petition to make its way from the Chippewa Correctional Facility, it would not change the Court's analysis.

         II. Statute of Limitations

         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 ...

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