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Austin v. Warren

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

April 11, 2019

DOUGLAS DUANE AUSTIN, Petitioner,
v.
PAT WARREN, Respondent.

          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 PAUPERIS

          HONORABLE GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         Douglas 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 § 750.529.

         Respondent 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.

         I. Background

         Petitioner 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).

         On 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.

         Petitioner signed and dated his habeas petition on July 5, 2018.[1]

         Respondent filed a motion to dismiss the petition on statute of limitations grounds on January 24, 2019.

         II. Discussion

         Respondent 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).

         The 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 ...

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