United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS  AND DENYING A CERTIFICATE OF
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
filed an application for leave to appeal in the Michigan
Supreme Court, but on December 20, 2018, the application ...