United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING RESPONDENT'S MOTION TO
DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING
RESPONDENT TO FILE ADDITIONAL RULE 5 MATERIALS AND AN ANSWER
TO THE PETITION
V. PARKER U.S. DISTRICT JUDGE.
Steven Lee Moss (“Petitioner”), confined at the
Saginaw Correctional Facility in Freeland, Michigan, has
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his application, filed by attorney
David L. Moffitt, Petitioner challenges his convictions for
possession with intent to deliver 1, 000 or more grams of
cocaine in violation of Michigan Compiled Laws §
333.7401(2)(a)(i) and possession of a firearm in the
commission of a felony in violation of Michigan Compiled Laws
§ 750.227b. Respondent filed a motion to dismiss the
petition arguing that it is barred by the applicable statute
of limitations, 28 U.S.C. § 2244(d)(1). Petitioner filed
a response to the motion to dismiss. For the reasons that
follow, the Court is denying Respondent's motion.
was convicted following a bench trial in the Oakland County
Circuit Court. The Michigan Court of Appeals affirmed the
convictions on Petitioner's appeal of right. People
v. Moss, No. 319954, 2015 WL 3604582 (Mich. Ct. App.
June 9, 2015). On December 22, 2015, the Michigan Supreme
Court denied Petitioner leave to appeal. People v.
Moss, 872 N.W.2d 474 (2015).
March 22, 2017, Petitioner filed a post-conviction motion for
relief from judgment in the trial court, which the court
denied. People v. Moss, No. 2013-2444744-FC (Oakland
Cty. Cir. Ct. Apr. 21, 2017). Petitioner filed an application
for leave to appeal, which the Michigan Court of Appeals
denied. People v. Moss, No. 340609 (Mich. Ct. App.
Mar. 15, 2018). Petitioner filed an application for leave to
appeal with the Michigan Supreme Court. On May 30, 2018,
while his application was pending, Petitioner filed his
pending federal habeas petition. The Michigan Supreme Court
subsequently denied Petitioner leave to appeal. People v.
Moss, 918 N.W.2d 817 (2018).
Applicable Law & Discussion
the Antiterrorism and Effective Death Penalty Act (AEDPA), a
one-year statute of limitations applies to a petition for the
writ of habeas corpus by a person in custody pursuant to a
state court judgment. 28 U.S.C. § 2244(d)(1). The
one-year limitations period runs 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
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
Id. “AEDPA also contains a tolling provision,
which specifies that ‘[t]he time during which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of
limitation under this subsection.'”
Holbrook v. Curtin, 833 F.3d 612, 615 (6th
Cir. 2016) (quoting 28 U.S.C. § 2244(d)(2)).
is not relying on a newly recognized constitutional right or
on newly discovered facts, and he has not alleged that a
state-created impediment prevented him from filing a timely
petition. Consequently, the relevant subsection here is
§ 2244(d)(1)(A), which states that a conviction becomes
final at “the conclusion of direct review or the
expiration of the time for seeking such review.”
For petitioners who pursue direct review all the way to [the
Supreme] Court, the judgment becomes final at the
“conclusion of direct review”-when [the Supreme]
Court affirms a conviction on the merits or denies a petition
for certiorari. For all other petitioners, the judgment
becomes final at the “expiration of the time for
seeking such ...