United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS PETITION AND DENYING A CERTIFICATE OF
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner Broderick
Hodge's petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner is a state inmate at the
Central Michigan Correctional Facility in St. Louis,
Michigan. He challenges his convictions for second-degree
murder, Mich. Comp. Laws § 750.317, being a felon in
possession of a firearm, Mich. Comp. Laws § 750.224f,
and possession of a firearm while committing a felony, Mich.
Comp. Laws § 750.227b(1).
through the Attorney General's Office, filed a motion to
dismiss arguing that the petition was not timely filed. The
Court finds that the petition is untimely and that equitable
tolling of the limitations period is unwarranted. The Court
grants the motion to dismiss.
convicted Petitioner in Wayne County Circuit Court. The Court
sentenced him to 15 to 25 years for second-degree murder, 1
to 5 years for being a felon in possession, and 2 years for
filed an appeal of right in the Michigan Court of Appeals.
The Michigan Court of Appeals affirmed his convictions and
sentences. People v. Hodge, No. 292722, 2010 WL
3984811 (Mich. Ct. App. Oct. 12, 2010). On March 8, 2011, the
Michigan Supreme Court denied leave to appeal. People v.
Hodge, 488 Mich. 1050 (2011).
filed a motion for relief from judgment in the trial court.
The trial court denied the motion. See 5/10/13 Order
(Dkt. 14-13). The Michigan Court of Appeals denied
Petitioner's application for leave to appeal, People
v. Hodge, No. 320841 (Mich. Ct. App. May 2, 2014) (Dkt.
14-22), as did the Michigan Supreme Court, People v.
Hodge, 497 Mich. 946 (Mich. Dec. 30, 2014). On January
16, 2015, Petitioner filed a successive motion for relief
from judgment in the trial court. The trial court denied the
motion and Petitioner did not seek leave to appeal.
See 4/6/15 Order (Dkt. 14-16).
then filed a habeas corpus petition. The Court stayed the
petition on November 13, 2015, to allow Petitioner to raise
previously unexhausted claims in state court. (Dkt. 8)
filed a third motion for relief from judgment on January 11,
2016. The trial court denied the motion, and both state
appellate courts denied leave to appeal. See 2/9/16
Order (Dkt. 14-18); People v. Hodge, No. 333739
(Mich. Ct. App. Oct. 5, 2016); People v. Hodge, 500
Mich. 1058 (Mich. July 25, 2017).
Court granted Petitioner's motion to lift the stay and
allowed him to file an amended petition. (Dkt. 11) Respondent
filed a motion to dismiss the petition on the ground that it
is not timely filed. (Dkt. 13) Petitioner filed a response to
the motion. (Dkt. 15)
argues that the petition is barred by the one-year statute of
limitations. Title 28 U.S.C. § 2254(d), as amended by
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
applies to all habeas petitions filed after its effective
date, April 24, 1996, and imposes a one-year limitations
period for habeas petitions. See 28 U.S.C. §
2244(d)(1). A prisoner must file a federal habeas corpus
petition within one year of the “date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review . . . or
the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.” 28 U.S.C. §
2244(d)(1)(A) & (D).
concedes that unless the Court equitably tolls the
limitations period, his petition is untimely. The Michigan
Supreme Court denied Petitioner's application for leave
to appeal on March 8, 2011. People v. Hodge, 488
Mich. 1050 (Mich. 2011). Petitioner did not petition for a
writ of certiorari with the United States Supreme Court.
Thus, his conviction became final on June 6, 2011, when the
time period for seeking certiorari expired. Bronaugh v.
Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (one-year
statute of limitations does not begin to run until the time
for filing a petition for a writ of certiorari for direct
review in the United States Supreme Court has expired). The
last day on which a petitioner can file a petition for a writ
of certiorari in the United States Supreme Court is not
counted toward the one-year limitations period applicable to
habeas corpus petitions. Id. at 285. Accordingly,
the limitations period began on June 7, 2011, and expired one
year later, on June 6, 2012.
argues that the Court should equitably toll the limitations
period because he suffers from a learning disability. The
one-year limitations period is not a jurisdictional bar and
may be equitably tolled where a habeas petitioner
“shows (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance
stood in his way and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010)
(internal quotation marks omitted). A petitioner bears the
burden to ...