United States District Court, E.D. Michigan, Southern Division
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
Gershwin A. Drain United States District Court Judge.
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.
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.
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.
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.
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)
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.
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.
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)
habeas petition was signed and dated by Petitioner on January
Standard of Review
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).
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