Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hemphill v. Rewerts

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

May 6, 2019

BRANDON MAURICE HEMPHILL, Petitioner,
v.
RANDY REWERTS, Respondent.

          OPINION AND ORDER DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.

         Michigan prisoner Brandon Maurice Hemphill ("Hemphill") filed a pro se petition for a writ of habeas corpus. ECF 1. He challenges his state convictions for first-degree murder, two counts of assault with intent to commit murder, and possession of a firearm during the commission of a felony, which were imposed following a jury trial in the Wayne County Circuit Court. In 2014, Hemphill was sentenced to life imprisonment without the possibility of parole on the murder conviction, a concurrent term of 23 years nine months to 50 years' imprisonment on the assault convictions, and a consecutive term of two years' imprisonment on the felony firearm conviction. In his pleadings, he raises claims about the non-disclosure of evidence, the effectiveness of trial and appellate counsel, and the conduct of the prosecutor.

         On April 10, 2019, the Court ordered Hemphill to show cause why his habeas petition should not be dismissed for failure to comply with the one-year statute of limitations applicable to federal habeas actions. See ECF 3; see also 28 U.S.C. § 2244(d). Hemphill filed a timely reply to the show cause order. Having further reviewed the matter, the Court concludes that the habeas petition is untimely and will dismiss the petition. The Court will also deny Hemphill a certificate of appealability and leave to proceed in forma pauperis on appeal.

         BACKGROUND

         Hemphill's convictions arise from a shooting that occurred in Inkster, Michigan on May 5, 2013. Following his convictions and sentencing, Hemphill filed an appeal of right with the Michigan Court of Appeals, which affirmed his convictions. People v. Hemphill, No. 321485, 2015 WL 5707130 (Mich. Ct. App. Sept. 29, 2015). Hemphill then filed an application for leave to appeal with the Michigan Supreme Court, which was denied. People v. Hemphill, 499 Mich. 871 (2016). On March 9, 2017, Hemphill filed a motion for relief from judgment with the state trial court. See Register of Actions, People v. Hemphill, No. 13-008288-01-FC (Wayne Cty. Cir. Ct.), https://cmspublic.3rdcc.org/CaseDetail.aspx?CaseID=2329922 (last accessed May 2, 2019). On June 30, 2017, the motion was denied. Id.; see also ECF 1, PgID 26-31.

         Hemphill then filed an application for leave to appeal the state circuit court's decision on the motion for relief from judgment with the Michigan Court of Appeals, which was denied on June 4, 2018. ECF 1, PgID 34. Hemphill also filed an application for leave to appeal with the Michigan Supreme Court, which was denied on October 30, 2018. People v. Hemphill, 503 Mich. 889 (2018).

         Hemphill dated his proof of service for his federal habeas petition March 27, 2019. ECF 1, PgID 43. As noted, the Court issued the show cause order on April 10, 2019. ECF 3. Hemphill filed his response on April 30, 2019. ECF 4. He asserts that, after consulting with a prison law librarian, he believed he had until May 26, 2019 to file his habeas petition. Id.

         DISCUSSION

         I. Timeliness

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")[1]provides that "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" and shall begin "from the latest" of (1) the entry of or expiration of time to seek direct review; (2) the removal date of an unconstitutional state impediment to filing for federal habeas relief; (3) the date the Supreme Court recognizes a new constitutional right made retroactive and applicable to collateral review; or (4) the date the prisoner discovered new facts that could not have been discovered previously. 28 U.S.C. § 2241(d)(1). A properly-filed application for State post-conviction or collateral review tolls the statute of limitations. 28 U.S.C. § 2241(d)(2). But AEDPA's limitations period does not restart after the completion of state post-conviction proceedings. Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001).

         A habeas petition filed outside the prescribed limitations period must be dismissed. See Isham v. Randle, 226 F.3d 691, 693 (6th Cir. 2000) (dismissing case 13 days late); Wilson v. Birkett, 192 F.Supp.2d 763, 765 (E.D. Mich. 2002). District courts may sua sponte consider "the timeliness of a state prisoner's federal habeas petition." Day v. McDonough, 547 U.S. 198, 209 (2006).

         Here, the Michigan Supreme Court denied Hemphill leave to file a direct appeal on March 8, 2016. Hemphill's convictions became final 90 days later-on or about June 27, 2016. See Jimenez v. Quarterman, 555 U.S. 113, 120 (2009) (a conviction becomes final when "the time for filing a certiorari petition expires"); Lawrence v. Florida, 549 U.S. 327, 333 (2007).[2] Accordingly, Hemphill was required to file his federal habeas petition by June 27, 2017, excluding any time during which a properly filed application for state post-conviction or collateral review was pending.

         Hemphill filed his motion for relief from judgment with the state trial court on March 9, 2017. When he filed his motion, 255 days of the one-year period had expired. His motion and related appeals remained pending in the state courts, thereby tolling the one-year period until October 30, 2018, when the Michigan Supreme Court denied him leave to appeal on collateral review. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-21 (2002). Hemphill then had 110 days, until February 19, 2019, to file his federal habeas petition.[3] Hemphill dated his proof of service for his federal habeas petition on March 27, 2019-36 days after the one-year period expired. See ECF 1, PgID 42 (listing proof of service date).

         Hemphill neither alleges nor establishes that the State created an impediment to the filing of his federal habeas petition or that his claims are based on newly-discovered evidence or newly-created, retroactively-applicable rights which would warrant habeas relief. See 28 U.S.C. § 2244(d)(1)(B)-(D) (listing dates from which the statute of limitations ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.