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