United States District Court, E.D. Michigan, Southern Division
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.
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.
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.
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.),
(last accessed May 2, 2019). On June 30, 2017, the motion was
denied. Id.; see also ECF 1, PgID 26-31.
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).
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.
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA")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).
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
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). 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.
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. 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).
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 ...