United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION
FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA
HONORABLE NANCY G. EDMUNDS, UNITED STATES DISTRICT JUDGE.
Christopher Mazzio, (“Petitioner”), currently on
parole supervision with the Michigan Department of
Corrections, seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his pro se application,
petitioner challenges his conviction for assault with intent
to commit murder, M.C.L.A. § 750.83. Petitioner also
filed a motion for equitable tolling.
Court denies the motion for equitable tolling and summarily
dismisses the petition for a writ of habeas corpus, because
it was not timely filed in accordance with the statute of
limitations contained in 28 U.S.C. § 2244 (d)(1) and a
late petition cannot be saved by equitable or statutory
was found guilty following a jury trial in the Oakland County
Circuit Court. Petitioner was initially sentenced to eighty
eight months to thirty years in prison.
conviction and sentence was affirmed by the Michigan Court of
Appeals. People v. Mazzio, No. 314685, 2014 WL
2218974 (Mich. Ct. App. May 27, 2014). Petitioner filed an
application for leave to appeal with the Michigan Supreme
Court, which resulted in his case being remanded back to the
Oakland County Circuit Court for the trial court judge to
consider whether a different sentence would have been imposed
in light of the Michigan Supreme Court's decision in
People v Lockridge, 498 Mich. 358 (2015), which
invalidated the Michigan Sentencing Guidelines. People v.
Mazzio, 498 Mich. 902, 870 N.W.2d 711 (2015).
25, 2016, petitioner was re-sentenced to seventy two months
to thirty years in prison. The Michigan Court of Appeals
affirmed the new sentence. People v. Mazzio, No.
334213, 2017 WL 6346060 (Mich. Ct. App. Dec. 12, 2017). On
July 27, 2018, the Michigan Supreme Court denied petitioner
leave to appeal. People v. Mazzio, 502 Mich. 938,
915 N.W.2d 467 (2018).
who is now on parole, filed his habeas petition and his
motion for equitable tolling with this Court on November 25,
of the Rules Governing Section 2254 Cases in the United
States District Courts “provides that district courts
‘must promptly examine' state prisoner habeas
petitions and must dismiss the petition ‘[i]f it
plainly appears ... that the petitioner is not entitled to
relief.'” Day v. McDonough, 547 U.S. 198,
207 (2006). This Court must determine whether the one-year
statute of limitations in the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), see 28 U.S.C.
§ 2244(d)(1), bars substantive review of
petitioner's claims. This Court is “permitted ...
to consider, sua sponte, the timeliness of a state
prisoner's habeas petition.” Day v.
McDonough, 547 U.S. at 209. Before acting on its own
initiative to dismiss a state prisoner's habeas petition
as untimely, a federal district court must give the parties
fair notice and an opportunity to present their positions
regarding the timeliness issue. Id. at 210.
Petitioner in his motion for equitable tolling acknowledges
that his petition was filed beyond the one year period but
argues that any untimely filing should be equitably tolled
based on petitioner suffering from post-traumatic stress
disorder (PTSD). Petitioner has thus been given an
opportunity to address the limitations issue. See Plummer
v. Warren, 463 Fed.Appx. 501, 505 (6th Cir. 2012);
see also Stewart v. Harry, No. 17-1494, 2017 WL
9249946, at * 1 (6th Cir. Nov. 21, 2017).
statute of limitations context, “dismissal is
appropriate only if a complaint clearly shows the claim is
out of time.” Harris v. New York, 186 F.3d
243, 250 (2nd Cir.1999); see also Cooey v.
Strickland, 479 F.3d 412, 415-16 (6th Cir. 2007).
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214,
became effective on April 24, 1996, and it governs the filing
date for the habeas application in this case because
petitioner filed his petition after the AEDPA's effective
date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
The AEDPA amended 28 U.S.C. § 2244 to include a new,
one-year period of limitations for habeas petitions brought
by prisoners challenging state court judgments. See
Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir. 2003).
The one-year statute of limitations runs from the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was