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Hawkins v. Winn

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

August 12, 2019

KERRY HAWKINS, Petitioner,
v.
THOMAS WINN, Respondent.

          OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [# 8]; DENYING PETITIONER'S MOTION TO STAY PROCEEDINGS [# 7]; DENYING CERTIFICATE OF APPEALABILITY; AND DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS

          Hon. Gershwin A. Drain United States District Court Judge.

         Kerry Hawkins, (“Petitioner”), a Michigan Department of Corrections prisoner, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2012 Wayne County Circuit Court guilty plea conviction to second-degree murder. The petition asserts that Hawkins should have been convicted of the lesser offense of involuntary manslaughter. Dkt. 1, ¶12.

         This matter is before the Court on Respondent's Motion to Dismiss the petition as untimely filed. Dkt. 8. Petitioner also filed a motion to stay the petition to exhaust additional claims regarding his sentence. Dkt. 7.

         The Court will grant Respondent's Motion and dismiss the case because Petitioner failed to comply with the one-year limitations period under 28 U.S.C. §2244(d). The Court will also deny Petitioner's Motion to Stay, deny a certificate of appealability, and deny permission to proceed on appeal in forma pauperis.

         I. Background

         At Petitioner's September 14, 2012 guilty plea hearing, he testified that the victim, 21-month-old X'zavier Beck, lived at his home in Detroit. On the date of the incident, X'zavier was jumping off of furniture and making noise. Petitioner threw the victim against a wall. Petitioner knew that he could cause serious injury, and he knew that with enough force to the head, it could cause death. Hospital records indicated that X'Zavier died from a subdural hematoma. Dkt. 9-4, at 9-11.

         Following sentencing, Petitioner filed an application for leave to appeal with the Michigan Court of Appeals, challenging the voluntariness of his guilty plea. On May 16, 2013, the Michigan Court of Appeals denied the application “for lack of merit in the grounds presented.” People v. Hawkins, No. 315365 (Mich. Ct. App. May 16, 2013). Petitioner filed an application for leave to appeal in the Michigan Supreme Court, but it was denied on January 29, 2014. People v. Hawkins, 843 N.W.2d 169 (Mich. 2014) (Table).

         On June 17, 2014, Petitioner filed a motion for relief from judgment in the trial court. The trial court denied the motion by order dated April 22, 2015. Dkt. 9-6. Petitioner did not appeal this decision to the Michigan Court of Appeals.

         On July 22, 2016, Petitioner filed a second motion for relief from judgment. The trial court denied this motion on November 10, 2016. Dkt. 9-1, at 2.

         Petitioner filed an untimely application for leave to appeal in the Michigan Court of Appeals. On May 2, 2018, the Michigan Court of Appeals dismissed the appeal because it was not filed within the time period required by Michigan Court Rule 7.205(G)(3). People v. Hawkins, No. 343326 (Mich. Ct. App. May 2, 2018). Hawkins applied for leave to appeal to the Michigan Supreme Court, but it was denied on December 4, 2018. People v. Hawkins, 920 N.W.2d 115 (Mich. 2018) (Table).

         The habeas petition was signed and dated by Petitioner on January 14, 2019.

         II. Standard of Review

         Though Respondent styles his Motion as a motion to dismiss, it is properly construed as one of summary judgment because the motion and the record before the Court includes documents outside of the pleadings. See e.g., Anderson v. Shane Place, 2017 U.S. Dist. LEXIS 65670, *6, 2017 WL 1549763 (E.D. Mich. May 1, 2017).

         Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. In considering a motion for summary judgment, the Court will construe all facts in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith RadioCorp., 475 U.S. 574 (1986). There are no genuine issues of material fact when “the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Id. If the movant carries its burden of showing an absence of evidence to support a claim, then the non-movant must demonstrate by affidavits, depositions, answers to interrogatories and admissions that a genuine issue of ...


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