United States District Court, E.D. Michigan, Southern Division
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
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
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.
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).
24, 2019, Petitioner filed a response to Respondent's
motion. See Pet'r Resp. (Dkt. 9).
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.
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.
did not file a direct appeal from his conviction and
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).
habeas application was filed with this Court on July 20,
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).
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 ...