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Turner v. Skipper

United States District Court, E.D. Michigan, Southern Division

July 26, 2019

DAIQUAN LAVONTE TURNER, Petitioner,
v.
GREG SKIPPER, Respondent.

          OPINION & ORDER (1) GRANTING RESPONDENT'S MOTION TO DISMISS (Dkt. 4), (2) SUMMARILY DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS, (3) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (4) DENYING PERMISSION FOR LEAVE TO APPEAL IN FORMA PAUPERIS

          MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE

         Daiquan Lavonte Turner, (“Petitioner”), confined at the Handlon Correctional Facility in Ionia, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed by counsel David L. Moffitt, Petitioner challenges his conviction for second-degree murder, Mich. Comp. Laws § 750.317, and armed robbery, Mich. Comp. Laws § 750.529.

         Petitioner filed this petition for a writ of habeas corpus on July 20, 2018. In lieu of filing an answer to the petition, on January 25, 2019, Respondent filed a motion to dismiss on the ground that the petition was not timely filed. See Resp't Mot. (Dkt. 4).

         On June 24, 2019, Petitioner filed a response to Respondent's motion. See Pet'r Resp. (Dkt. 9).

         For the reasons stated below, the Court will grant Respondent's motion to dismiss the petition as time-barred and also as meritless. The Court also will decline to issue Petitioner a certificate of appealability and deny Petitioner leave to appeal in forma pauperis.

         I. BACKGROUND

         Petitioner was charged with first-degree felony murder in 2011. At the time of the offense, Petitioner was seventeen years old. On September 26, 2011, Petitioner pleaded guilty to reduced charges of second-degree murder and armed robbery, in exchange for dismissal of the first-degree felony murder charge. The parties also agreed that Petitioner would be sentenced to 20-40 years in prison. Petitioner was sentenced on October 17, 2011, in accordance with the agreement.

         Petitioner did not file a direct appeal from his conviction and sentence.

         On January 23, 2017, Petitioner, through his current counsel, filed a motion for relief from judgment pursuant to M.C.R. 6.500, et. seq. with the trial court. The trial judge denied the motion. People v. Turner, No. 11-4108-03 (3d Cir. Ct. May 26, 2017). The Michigan appellate courts denied Petitioner leave to appeal. People v. Turner, No. 341157 (Mich. Ct. App. Jan. 25, 2018); lv. den. 918 N.W.2d 811 (Mich. 2018).

         Petitioner's habeas application was filed with this Court on July 20, 2018.

         II. ANALYSIS

         A. Legal Standards

         Respondent's counsel argues in his motion to dismiss that Petitioner's habeas petition should be barred from federal habeas review by the one-year 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 (2d Cir.1999); see also Cooey v. Strickland, 479 F.3d 412, 415-416 (6th Cir. 2007).

         The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (“AEDPA”) applies to all habeas petitions filed after the Act's effective date, April 24, 1996, and imposes a one-year ...


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