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Smith v. Warren

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

July 29, 2019

JHAL DEVONN SMITH, #391981, Petitioner,



         I. Introduction

         Michigan prisoner Jhal Devonn Smith (“Petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is being held in violation of his constitutional rights. Petitioner was convicted of first-degree criminal sexual conduct (“CSC”), Mich. Comp. Laws § 750.520b(1)(c) (sexual penetration under circumstances involving another felony), third-degree CSC, Mich. Comp. Laws § 750.520d(1)(b) (sexual penetration with force or coercion), unlawful imprisonment, Mich. Comp. Laws § 750.349b; assault by strangulation, Mich. Comp. Laws § 750.84(1)(b); and domestic assault, Mich. Comp. Laws § 750.81(2), following a jury trial in the Calhoun County Circuit Court. He was sentenced, as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent terms of 50 to 75 years on the first-degree CSC conviction, 26 years 8 months to 50 years imprisonment on the third-degree CSC conviction, 19 to 50 years imprisonment on the unlawful imprisonment conviction, 12 years 8 months to 50 years imprisonment on the assault conviction, and 6 years 4 months to 50 years imprisonment on the domestic violence conviction in 2015. In his habeas petition, he raises claims concerning the sufficiency of the evidence, the jury instructions, and the validity of his sentence.

         The matter is currently before the Court on Respondent's motion to dismiss the petition as untimely under the one-year statute of limitations applicable to federal habeas actions. For the reasons that follow, the Court concludes that the habeas petition is untimely, Petitioner's claims are without merit, and the petition must be dismissed. The Court also concludes that a certificate of appealability and leave to proceed in forma pauperis on appeal must be denied.

         II. Procedural History

         Petitioner's convictions arise from the physical and sexual assault of his former girlfriend at her home on November 9, 2014. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

In her testimony, recounted as follows, the complainant described the events of the incident and those leading to it. She met defendant in June 2014; they began dating and then moved in together shortly thereafter. Defendant became increasingly violent as the relationship progressed, and so she broke up with him in September 2014 and made him move out of her house. On November 9, 2014, she arrived home from work at approximately 10:30 p.m. and found defendant inside the house, even though he was not supposed to be there. Defendant began to look through her cellular telephone, and he became angry when he found that it contained contact information for other men. Complainant became afraid and tried to leave the house but defendant pulled her from the door. She tried to escape on three different occasions that night but defendant forcibly prevented her from doing so by grabbing her legs and one time by choking her. Defendant struck her in the face multiple times with a vodka bottle and told her that he would kill her. He also forced her to perform fellatio on him against her will and then forced her to the floor and had sex with her despite her telling him to stop both before and during the sexual conduct. Around 7:00 a.m. defendant began to apologize, but at around 8:00 a.m. or 8:30 a.m., he again forced her to have sex despite the fact that she told defendant that she did not want to and that she was in pain. In sum, according to complainant's testimony, over the course of approximately seven hours, defendant repeatedly threatened her life and physically and sexually assaulted her.

People v. Smith, No. 328642, 2016 WL 6992690, *1 (Mich. Ct. App. Nov. 29, 2016) (unpublished).

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising the same claims presented on habeas review. The court denied relief on those claims and affirmed his convictions and sentences. Id. at *2-4. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Smith, 500 Mich. 1002, 895 N.W.2d 514 (May 31, 2017).

         Petitioner dated his federal habeas petition on August 31, 2018. Respondent filed the instant motion to dismiss on March 18, 2019. Petitioner filed a letter response to that motion on April 15, 2019, essentially asserting that the Court should consider his petition because his habeas claims have merit. He then filed an additional response, dated April 29, 2019, asserting that he is entitled to equitable tolling of the one-year period because he has mental health issues, takes medication, and must rely upon legal writers to assist him.

         III. Discussion

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., became effective on April 24, 1996. The AEDPA includes a one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. The statute 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 ...

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