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Cheaves v. Horton

United States District Court, W.D. Michigan, Northern Division

September 13, 2019

KEVIN ANTHONY CHEAVES, Petitioner,
v.
CONNIE HORTON, Respondent.

          HONORABLE GORDON J. QUIST JUDGE

          REPORT AND RECOMMENDATION

          MAARTEN VERMAAT UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). The Court may sua sponte dismiss a habeas action as time-barred under 28 U.S.C. § 2244(d). Day v. McDonough, 547 U.S. 198, 209 (2006). After undertaking the review required by Rule 4, I conclude that the petition is barred by the one-year statute of limitations.

         Discussion

         I. Procedural history

         Petitioner Kevin Anthony Cheaves is incarcerated with the Michigan Department of Corrections at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. Petitioner pleaded nolo contendere in the Wexford County Circuit Court to assault with intent to commit murder (AWIM), MCL 750.83, and assault with intent to do great bodily harm less than murder (AGBH), MCL 750.83. On December 28, 2006, the court sentenced Petitioner to respective prison terms of 33 to 50 years for the AWIM, and 6 years 4 months to 10 years for the AGBH conviction.

         Petitioner filed a delayed application for leave to appeal to the Michigan Court of Appeals on March 16, 2007, which was denied on April 23, 2007. See People v. Cheaves, Michigan Court of Appeals No. 276808. Petitioner then took no further action until September 14, 2015, when he filed a motion for relief from judgment in the Wexford County Circuit Court. (ECF No. 12-1, PageID.55.) This motion was denied on November 13, 2015, and Petitioner's subsequent appeal was denied on July 1, 2016. See People v. Cheaves, Michigan Court of Appeals No. 331974. The Michigan Supreme Court denied leave to appeal on January 31, 2017. See People v. Cheaves, Michigan Supreme Court No. 154309.

         On June 21, 2017, Petitioner filed his habeas corpus petition. Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner signed his application on June 12, 2017. (Pet., ECF No. 1, PageID.10.) The petition was received by the Court on June 21, 2017. For purposes of this Opinion, I have given Petitioner the benefit of the earliest possible filing date. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner signs the document is deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins v. Saunders, 206 Fed.Appx. 497, 498 n.1 (6th Cir. 2006)).

         Following the filing of Petitioner's habeas corpus petition, he filed a motion for stay and abeyance (ECF No. 3), which would allow him to exhaust his unexhausted claims in state court. The Court granted Petitioner's motion on December 29, 2017 (ECF No. 5).

         Petitioner filed a second motion for relief from judgment in the Wexford County Circuit Court on January 18, 2018, which was denied on February 8, 2018. (ECF No. 12-1, PageID.55.) In the order denying Petitioner's second motion for relief from judgment, the Wexford County Circuit Court stated:

In denying the prior motion for relief from judgment, this Court found that People v. Lockridge, 498 Mich. 358; 879 N.W.2d 502 (2015) did not provide a basis for relief for two reasons: First, the Lockridge holding was not to be retroactively applied to this Defendant. Secondly, the factual bases underlining Defendant's sentence enhancement were a matter of stipulation, therefore, not judicially determined. Without additional factual allegations, Defendant's instant motion simply characterizes the trial court's sentencing as lacking subject matter jurisdiction. This argument is unpersuasive.
The circuit court derives its authority to conduct felony trials, accept no contest pleas, and to impose sentence on constitutional and statutory provisions unaffected by the restrictions of Lockridge. Const. 1963 art 6 sec 13; MCL 769.9. Defendant's sentence did not contravene express legal authority existing at that time. A trial or sentencing error, even one later determined to have constitutional implication, does not by itself impute a lack of jurisdiction. See People v. Price, 23 Mich.App. 663; 179 N.W.2d 177 (1970). It plainly appears Defendant is not entitled to relief on this basis.

(ECF No. 12-1, PageID.56.)

         Petitioner filed a delayed application for leave to appeal the denial of his second motion for relief from judgment in the Michigan Court of Appeals on June 4, 2018, which was denied on October 10, 2018. See People v. Cheaves, Michigan Court of Appeals No. 344118. Petitioner's subsequent application for leave to appeal to the Michigan ...


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