Liptrot v. Horton

          OPINION AND ORDER (1) SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS. (2) DENYING A CERTIFICATE OF APPEALABILITY. AND (3) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE PAUL D. BORMAN JUDGE.

         Calvin L. Liptrot, ("Petitioner"), confined at the Chippewa Correctional Facility in Kincheloe, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction for operating a vehicle while intoxicated causing death, Mich. Comp. Laws § 257.625(4)(a), failure to stop at the scene of an accident resulting in serious impairment or death, Mich. Comp. Laws § 257.617(3), and being a fourth felony habitual offender, Mich. Comp. Laws § 769.12. 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 denied with prejudice.

         I. BACKGROUND

         Petitioner pleaded nolo contendere in the Kent County Circuit Court and was sentenced to ten to forty years in prison.

         Direct review of petitioner's conviction ended in the state courts on October 22, 2014, when the Michigan Supreme Court denied petitioner's application for leave to appeal following the affirmance of his conviction by the Michigan Court of Appeals. People v. Liptrot, 497 Mich. 882, 854 N.W.2d 712 (2014).

         On December 7, 2015, petitioner filed a motion for modification of restitution with the trial court, which was denied on December 15, 2015. (ECF 7-l, PgID46).

         On August 3, 2016, petitioner filed a motion to correct an invalid sentence in the trial court, which was denied on August 4, 2016. (ECF 7-1, Pg ID 46).

         There is no indication that petitioner ever appealed the denial of this motion.^[2]

         Petitioner's habeas petition is signed and dated October 4, 2018.^[3]

         II. DISCUSSION

         Respondent filed a motion to dismiss the petition for 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 ...