United States District Court, W.D. Michigan, Northern Division
HONORABLE GORDON J. QUIST JUDGE
REPORT AND RECOMMENDATION
MAARTEN VERMAAT UNITED STATES MAGISTRATE JUDGE
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
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.
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.
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)).
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).
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.)
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 ...