United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION
FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA
HONORABLE GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
Duane Austin, ("Petitioner"), confined at the Lenox
Correctional Facility in Macomb, Michigan, filed a pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his plea based convictions
for two counts of armed robbery, Mich. Comp. Laws §
filed a motion to dismiss the petition, on the ground that it
was not timely filed in accordance with the statute of
limitations contained in 28 U.S.C. § 2244 (d)(1). For
the reasons stated below, the petition for a writ of habeas
corpus is summarily dismissed.
was convicted following the entry of a guilty plea in the
Oakland County Circuit Court. The Michigan Court of Appeals
denied petitioner's delayed application for leave to
appeal for "lack of merit in the grounds
presented." People v. Austin, No. 326815 (Mich.
Ct. App. May 21, 2015). Petitioner filed an application for
leave to appeal with the Michigan Supreme Court, which
resulted in his case being remanded back to the Oakland
County Circuit Court on December 22, 2015, for the judge to
consider whether a different sentence would have been
imposed, in light of the Michigan Supreme Court's
decision in People v Lockridge, 498 Mich. 358
(2015), which rendered the Michigan Sentencing Guidelines
advisory rather than mandatory. People v. Austin,
498 Mich. 946 (2015).
March 4, 2016, the Oakland County Circuit Court judge
indicated that he would have imposed the same sentence.
Petitioner did not appeal from this decision.
signed and dated his habeas petition on July 5,
filed a motion to dismiss the petition on statute of
limitations grounds on January 24, 2019.
has filed a motion to dismiss the petition for a writ of
habeas corpus on the ground that the petition was not filed
in compliance with the statute of limitations. In the statute
of limitations context, "dismissal is appropriate only
if a complaint clearly shows the claim is out of time."
Harris v. New York, 186 F.3d 243, 250 (2nd
Cir.1999); see also Cooey v. Strickland, 479 F.3d
412, 415-16 (6th Cir. 2007).
Antiterrorism and Effective Death Penalty Act
("AEDPA"), which was signed into law on April 24,
1996, amended the habeas corpus statute in several respects,
one of which was to mandate a statute of limitations for
habeas actions. 28 U.S.C. § 2244(d) imposes a one-year
statute of limitations upon petitions for habeas relief:
(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