Thompson v. Horton

          Honorable Gordon J. Quist

          REPORT AND RECOMMENDATION

          MAARTEN VERMAAT, U.S. MAGISTRATE 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 Demon Turmel Thompson is incarcerated with the Michigan Department of Corrections at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. Following a jury trial in the Berrien County Circuit Court, Petitioner was convicted of the following offenses: assault with a dangerous weapon, in violation of Mich. Comp. Laws § 750.82 (felonious assault); assault with intent to do great bodily harm less than murder, in violation of Mich. Comp. Laws § 750.84 (AWIGBH); possession of firearms as a felon, in violation of Mich. Comp. Laws § 750.224f (felon-in-possession); and possession of a firearm while committing a felony, in violation of Mich. Comp. Laws § 750.227b (felony-firearm). On February 2, 2015, the circuit court sentenced Petitioner to respective prison terms of 2 years and 6 months to 4 years for the felonious-assault conviction, 25 to 40 years for the AWIGBH conviction, 6 to 10 years for the felon-in-possession conviction; and 2 years for the felony-firearm conviction.

         Petitioner appealed his judgment of conviction and sentence to the Michigan appellate courts. The Michigan Court of Appeals affirmed the judgment on May 19, 2016. The Michigan Supreme Court denied leave to appeal on October 26, 2016. Petitioner did not file a petition for writ of certiorari to the United States Supreme Court.

         Petitioner filed his first habeas petition challenging his judgment of conviction in 2014, a few months after the jury rendered its verdict. See Thompson v. Unknown Party, 1:14-cv-1170 (W.D. Mich.). The Court dismissed the petition in February 2015 after Petitioner failed to pay the filing fee or to apply for leave to proceed in forma pauperis.

         Petitioner filed his second habeas petition in September 2017. See Thompson v. Palmer, No. 1:17-cv-848 (W.D. Mich.). The Court dismissed that case less than two months later because Petitioner failed to pay the filing fee or to apply for leave to proceed in forma pauperis. He also failed to file an amended petition on the required form as directed by the Court.

         In March 2019, Petitioner asked the Court of Appeals for the Sixth Circuit for permission to file a second or successive habeas petition. On June 13, 2019, the Sixth Circuit held that Petitioner did not need such permission and transferred his application to this court for consideration as an initial § 2254 petition. In No. 1:17-cv-848, the Court ordered that Petitioner's application be docketed as an original habeas action with a filing date of March 15, 2019. That order initiated the case before the Court.

         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 ...