United States District Court, W.D. Michigan, Northern Division
REPORT AND RECOMMENDATION
Honorable Robert J. Jonker, Judge
This is
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Promptly after the filing of a petition
for habeas corpus, the Court must undertake a preliminary
review of the petition to determine whether “it plainly
appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief
in the district court.” Rule 4, Rules Governing §
2254 Cases; see 28 U.S.C. § 2243. If so, the
petition must be summarily dismissed. Rule 4; see Allen
v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district
court has the duty to “screen out” petitions that
lack merit on their face). A dismissal under Rule 4 includes
those petitions which raise legally frivolous claims, as well
as those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434,
436-37 (6th Cir. 1999). The Court may sua sponte
dismiss a habeas action as time-barred under 28 U.S.C. §
2244(d). Day v. McDonough, 547 U.S. 198, 209 (2006).
After undertaking the review required by Rule 4, I conclude
that the petition is barred by the one-year statute of
limitations.
Discussion
I.
Factual Allegations
Petitioner
Stephen John Kares is incarcerated with the Michigan
Department of Corrections at the Chippewa Correctional
Facility (URF) in Chippewa County, Michigan. Following a jury
trial in the Shiawassee County Circuit Court, Petitioner was
convicted of third-degree criminal sexual conduct, in
violation of Mich. Comp. Laws § 750.520d(1)(b). On
September 28, 2012, the court sentenced Petitioner as a
fourth-offense habitual offender, Mich. Comp. Laws §
769.12, to a prison term of 25 years to 58 years and 4
months.
Petitioner
appealed his conviction and sentence to both the Michigan
Court of Appeals and the Michigan Supreme Court. Those courts
denied leave to appeal on March 21, 2014, and September 5,
2014, respectively.
Petitioner
filed a motion for relief from judgment in the Shiawassee
Circuit Court on September 26, 2015.[1] The court denied
Petitioner's motion on November 2, 2015. Petitioner
appealed that decision to the Michigan Court of Appeals and
the Michigan Supreme Court, which denied leave to appeal on
September 27, 2016, and December 27, 2017, respectively.
Petitioner
filed his habeas corpus petition in this Court on or around
December 21, 2018. Under Sixth Circuit precedent, the
application is deemed filed when handed to prison authorities
for mailing to the federal court. Cook v. Stegall,
295 F.3d 517, 521 (6th Cir. 2002). Petitioner signed his
application on December 21, 2018. (Pet., ECF No. 1,
PageID.9.) The petition was received by the Court on January
9, 2019. For purposes of this Report and Recommendation, I
have given Petitioner the benefit of the earliest possible
filing date. See Brand v. Motley, 526 F.3d 921, 925
(6th Cir. 2008) (holding that the date the prisoner signs the
document is deemed under Sixth Circuit law to be the date of
handing to officials) (citing Goins v. Saunders, 206
Fed.Appx. 497, 498 n.1 (6th Cir. 2006)).
II.
Statute of Limitations
Petitioner's
application is barred by the one-year statute of limitations
provided in 28 U.S.C. § 2244(d)(1), which became
effective on April 24, 1996, as part of the Antiterrorism and
Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat.
1214 (AEDPA). Section 2244(d)(1) provides:
(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
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
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