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Torres v. Rewerts

United States District Court, E.D. Michigan, Southern Division

December 20, 2019

JOSE TORRES, Petitioner,
v.
RANDEE REWERTS, Respondent.

          HON. AVERN COHN JUDGE.

          MEMORANDUM AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (ECF NO. 7) AND DENYING CERTIFICATE OF APPEALABILITY

          Paul D. Borman Presiding U.S. District Judge.

         I. Introduction

         This is a habeas case under 28 U.S.C. § 2254. Petitioner Jose Torres (Petitioner) filed a petition for a writ of habeas corpus challenging his convictions for three counts of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(a). Respondent, through the Attorney General's office, filed a motion to dismiss on the grounds that the petition is untimely. For the reasons that follow, the motion will be granted.

         II. Background

         Petitioner's convictions arise from the sexual assault of then eight-year-old T.M. in December 1998 at the home Petitioner shared with his mother, Luz Rodriguez, in Pontiac.

         Petitioner was convicted by a jury and sentenced to concurrent terms of twenty to fifty years in prison. His convictions were affirmed on direct appeal. People v. Torres, No. 240738, 2003 WL 22138279 (Sept. 16, 2003), lv. den. 494 Mich. 1003 (Mich. Jan. 27, 2004).

         In 2004, Petitioner filed a motion for relief from judgment in the trial court. The trial court denied the motion. See People v. Torres, No. 01-181975 (Oakland Cty. Cir. Ct. Apr. 25, 2005) (ECF No. 8-10). On July 20, 2005, the Michigan Court of Appeals dismissed Petitioner's delayed application for leave to appeal for “failure to pursue the case in conformity with the rules.” People v. Torres, No. 263263 (Mich. Ct. App. July 20, 2005) (ECF No. 8-20, PageID. 923).

         On October 12, 2005, Petitioner filed a habeas petition under 28 U.S.C. § 2241. The Court denied the petition. Torres v. Davis, No. 2:05-cv-73917 (E.D. Mich. Oct. 12, 2005). The Court also denied a certificate of appealability. Torres v. Davis, No. 2:05-cv-73917, 2006 WL 1943877 (E.D. Mich. July 11, 2006). The Sixth Circuit Court of Appeals declined to issue a certificate of appealability. Torres v. Davis, No. 06-1952 (6th Cir. Feb. 9, 2007).

         On June 16, 2008, Petitioner filed a second motion for relief from judgment in the trial court. The trial court denied the motion because it was a second motion and failed to satisfy either of the two circumstances enumerated in Mich. Ct. R. 6.502(G), under which a successive motion may be filed. People v. Torres, No. 01-181975 (Oakland Cty. Cir. Ct. Sept. 23, 2008) (ECF No. 8-12). The Michigan Court of Appeals dismissed Petitioner's delayed application for leave to appeal because an “appeal from [an] order denying a successive motion for relief from judgment is prohibited by M.C.R. 6.502(G).” People v. Torres, No. 293902 (Mich. Ct. App. Oct. 20, 2009) (ECF No. 8-22, PageID.1237). Petitioner did not seek leave to appeal to the Michigan Supreme Court.

         On August 20, 2015, Petitioner filed another motion for relief from judgment in the trial court claiming that his successive motion should be permitted under the newly- discovered evidence and retroactive change in the law exceptions to the ban on successive petitions found in Mich. Ct. R. 6.502(G)(2). The trial court denied the motion. People v. Torres, No. 01-181975 (Oct. 12, 2015) (ECF No. 8-15). The Michigan Court of Appeals denied leave to appeal. People v. Torres, No. 332527 (Mich. Ct. App. May 31, 2017) (ECF No. 8-24). On May 31, 2017, the Michigan Supreme Court also denied leave to appeal. People v. Torres, 901 N.W.2d 842 (Mich. 2017).

         On September 1, 2017, Petitioner filed a motion in the Sixth Circuit Court of Appeals for an order authorizing the filing of a successive habeas petition. The court of appeals denied the motion as unnecessary. In re: Jose Torres, No. 17-2087 (6th Cir. Feb. 5, 2018) (ECF No. 1-1, PageID.117).

         Petitioner filed the instant petition under § 2254 on February 14, 2018. Respondent filed the motion to dismiss to which Petitioner responded. See ECF Nos 7, 9. The Court denied the motion to dismiss without prejudice and, believing the petition was successive, transferred it to the Sixth Circuit. (ECF No. 12). Petitioner then filed a motion for reconsideration, explaining that the petition was not successive. (ECF No. 13). The Court granted the motion and reopened the case. (ECF No. 14). Thus, Respondent's motion to dismiss is not properly before the Court.

         III. ...


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