Carter v. Horton

          OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS [6] AND DENYING A CERTIFICATE OF APPEALABILITY

          STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.

         Devante Deshane Carter ("Petitioner"), a Michigan Department of Corrections prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF 1. Petitioner challenges his guilty plea to one count of second-degree murder, in violation of Mich. Comp. Laws § 750.317, and one count of commission of a felony with a firearm, in violation of Mich. Comp. Laws § 750.227b. In 2007, Petitioner was sentenced in Wayne Circuit Court to 20 to 30 years' imprisonment for the murder conviction and a consecutive two years' imprisonment for the firearm offense, pursuant to the terms of his plea agreement.

         The petition, filed though counsel, raises a single claim:

A child's waiver of his fundamental right to jury trial and acceptance of a plea offer to second degree murder to avoid a seemingly constitutional but actually unlawful (cruel and unusual) sentence of mandatory life imprisonment is invalid, illusory, unknowing and/or unintelligently made.

ECF 1, PgID 3.

         On January 18, 2019, Respondent filed a motion to dismiss. ECF 4. And, on February 5, 2019, Respondent filed an amended motion to dismiss. ECF 6. Respondent asserts that the petition was filed after the expiration of the one-year statute of limitations period. Id. at 450. Petitioner filed a response to the motion, arguing that his petition was timely filed because he filed for state post-conviction review within one year of the Supreme Court's decision in Montgomery v. Louisiana, 136 S.Ct. 718 (2016)-a decision which made Miller v. Alabama, 567 U.S. 460 (2012) (holding juveniles cannot be subject to mandatory life imprisonment) retroactively applicable to cases on collateral review. ECF 11, PgID 478. Petitioner also asserts that he is entitled to equitable tolling because of his young age and because his appellate counsel abandoned him during direct review. Id. at 478-79.

         The Court will grant Respondent's motion and dismiss the case because Petitioner filed his petition outside the one-year statute of limitations period under 28 U.S.C. § 2244(d), and he fails to demonstrate entitlement to equitable tolling. The Court also finds that Petitioner's sole claim is without merit. Finally, the Court will deny a certificate of appealability.

         BACKGROUND

         Petitioner was originally charged with first-degree murder, an offense that carries a mandatory sentence of life imprisonment without the possibility of parole under Michigan law. During Petitioner's December 12, 2007, plea proceeding, in which he pled guilty to the lessor offense of second-degree murder, Petitioner testified that on July 20, 2007, he was at a residential address in Detroit and shot and killed David Durrett with a shotgun. ECF 5-3, PgID 73. Petitioner was fifteen years old at the time of the offense and sixteen years old at the time of the plea hearing. Id. at 74. The trial court sentenced Petitioner under the terms of his plea agreement to what amounts to a term of 22 to 32 years in prison. ECF 5-4, PgID 80.

         Petitioner filed a notice of appeal, but stipulated to dismiss the appeal on August 29, 2008. ECF 11, PgID 480; ECF 11-3, PgID 492. On March 11, 2012, the trial court entered an order allowing Petitioner's appellate counsel to withdraw. ECF 5-1, PgID 34.

         Nothing further occurred in Petitioner's case until October 28, 2013, when Petitioner filed his first motion for relief from judgment, raising claims not presented in his habeas petition. ECF 5-5. He filed a supplemental brief in support of his motion on December 12, 2013. ECF 5-6. The trial court denied the motion on March 11, 2014. ECF 5-7.

         On June 12, 2014, Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals. ECF 5-12. On August 22, 2014, the Michigan Court of Appeals denied the application in a standard order. Id. Petitioner applied for leave to appeal to the Michigan Supreme Court, but his application was denied on April 28, 2015. ECF 5-13.

         Almost two years later, on January 20, 2017, Petitioner filed his second motion for relief from judgment through present counsel, asserting the same claim presented here. ECF 5-10. On March 7, 2017, the trial court denied the motion, finding that Miller did not apply to Petitioner's non-life sentence. ECF 5-11, PgID 252.

         On June 22, 2017, Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals. ECF 5-14. On October 26, 2017, the Michigan Court of Appeals dismissed Petitioner's application pursuant to Michigan Court Rule 6.502(G), which generally prohibits successive post-conviction motions. Id. at 367.

         Petitioner filed an application for leave to appeal in the Michigan Supreme Court, but on December 20, 2018, the application ...