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Clemons v. Nagy

United States District Court, W.D. Michigan, Northern Division

June 29, 2019

Thomas Clemons, Petitioner,
v.
Noah Nagy, Respondent.

          REPORT AND RECOMMENDATION

          Honorable Paul L. Maloney, 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 that 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 Thomas Clemons is incarcerated with the Michigan Department of Corrections at Lakeland Correctional Facility in Coldwater, Branch County, Michigan. Petitioner pleaded guilty in the Berrien County Circuit Court to multiple counts of armed robbery, Mich. Comp. Laws § 750.729, and being a felon in possession of a firearm, Mich. Comp. Laws § 750.224f. On August 14, 2015, the court sentenced Petitioner to concurrent prison terms of fifteen to sixty years on each of the armed-robbery convictions and thirty-eight to sixty months on each of the felon-in-possession convictions.

         Petitioner did not file an application for leave to appeal from his judgment of conviction to either the Michigan Court of Appeals or the Michigan Supreme Court.

         On March 19, 2018, Petitioner filed a motion for relief from judgment in the Berrien County Circuit Court. In an opinion and order issued on April 17, 2018, the court denied his motion. Petitioner filed applications for leave to appeal the denial to both the Michigan Court of Appeals and the Michigan Supreme Court. Those courts denied leave to appeal on August 9, 2018, and April 30, 2019, respectively. (Mich. Ct. App. Order, ECF No. 1-1, PageID.20; Mich. Order, ECF No. 1-1, PageID.22.)

         On June 5, 2019, Petitioner filed his habeas corpus petition. 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 June 5, 2019. (Pet., ECF No. 1, PageID.11). The petition was received by the Court on June 10, 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)).

         In his habeas application, Petitioner raises a single ground for relief, which is the same issue presented in his motion for relief from judgment and his applications for leave to appeal from the denial of that motion.

I. PETITIONER IS ENTITLED TO RESENTENCING BECAUSE THE TRIAL COURT DEPARTED FROM THE APPLICABLE GUIDELINES RANGE, THE SENTENCE IS UNREASONABLE, AND THE SENTENCING TRANSCRIPTS DO NOT REFLECT ANY REASON FOR SENTENCING GUIDELINE DEPARTURE REQUIRING REMAND TO THE TRIAL COURT. PETITIONER CHALLENGES THE SCORING OF OFFENSE VARIABLES 1 AND 4 BECAUSE THE SCORES ASSESSED DO NOT SUPPORT THE FACTS, APPLICABLE LAW, WHICH VIOLATES PETITIONER'S DUE PROCESS RIGHT GUARANTEE.
(Pet., ECF No. 1, PageID.2)

         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 ...

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