Bailey v. Chapman

          OPINION AND ORDER DENYING PETITONER'S APPLICATION TO PROCEED IN FORMA PAUPERIS, DENYING PETITIONER'S PETITION FOR RELIEF FROM JUDGMENT (14-12440), DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING IFP ON APPEAL

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         Petitioner Terrance Bailey, a state prisoner at the Macomb Correctional Facility in Lenox Township, Michigan, recently filed a “certificate of prisoner account activity” (ECF No. 2)^[1] and a “petition for relief from [void] judgment pursuant to Fed.R.Civ.P. 60(b)(1) & (4).” ECF No. 1. The Rule 60(b) petition seeks relief from this Court's opinion and judgment dismissing Bailey's 2014 habeas corpus petition as time-barred. See Bailey v. MacLaren, No. 14-cv-12440 (E.D. Mich. Feb. 20, 2015). Bailey claims that the Court mistakenly failed to consider the state trial court's lack of subject matter jurisdiction when the Court dismissed his habeas petition. This claim is untimely and meritless. Accordingly, the Rule 60(b) petition will be denied. Additionally, the application to proceed in forma pauperis (ECF No. 2) will be denied.

         I.

         Bailey is serving lengthy prison terms for two Wayne County Circuit Court cases. In case number 2006-006406-01, he was convicted of four counts of first-degree criminal sexual conduct (CSC), Mich. Comp. Laws § 750.520b(1)(c), one count of second-degree CSC, Mich. Comp. Laws § 750.520c(1)(c), and one count of kidnapping, Mich. Comp. Laws § 750.349. The trial court sentenced Bailey to concurrent prison terms of 30 to 50 years for the kidnapping and first-degree CSC convictions and 10 to 15 years for the second-degree CSC conviction.

         In case number 2006-008894-01, Bailey was convicted of two counts of first-degree CSC and one count of kidnapping. The trial court sentenced Bailey as a fourth habitual offender to three concurrent terms of 40 to 60 years in prison.

         The Michigan Court of Appeals consolidated Bailey's cases on appeal and affirmed his convictions in both cases, but remanded for re-sentencing in one case and for correction of the judgment of sentence in the other case. See People v. Bailey, Nos. 276424 and 276593, 2009 WL 1439112 (Mich. Ct. App. May 21, 2009). On July 2, 2009, the trial court re-sentenced Bailey, and on October 26, 2009, the Michigan Supreme Court denied Bailey's applications for leave to appeal. See People v. Bailey, 773 N.W.2d 674 (Mich. 2009); People v. Bailey, 773 N.W.2d 694 (Mich. 2009).

         Bailey sought further post-conviction relief without success in state court, and in 2014, he filed a petition for the writ of habeas corpus under 28 U.S.C. § 2254. He claimed that:

I. The Michigan Supreme Court denied [him] his Fourteenth Amendment rights to be heard where [he] demonstrated the circuit judge was without subject matter jurisdiction, and the prosecutor was without authorization to proceed in filing the Information where no return to circuit court was certified and transmitted to the court which [he] was to appear before after his preliminary examination;

II. The Michigan Supreme Court denied [him] the right to be heard where [he] demonstrated a very strong possibility of his innocence, violating his Eight (sic) Amendment rights forbidding cruel and usual punishment; and

III. [He] was denied effective assistance of trial and appellate counsel violating his Sixth Amendment right to counsel.

Bailey v. Maclaren, No. 14-cv-12440 (E.D. Mich. June 23, 2014) (ECF No. 1, PageID. 12).

         On February 20, 2015, this Court granted the State's motion for summary judgment and dismissed the habeas petition due to Bailey's failure to comply with the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). See Bailey v. MacLaren, No. 14-cv-12440 (E.D. Mich. Feb. 20, 2015) (ECF No. 10). Bailey applied for a certificate of appealability in the United States Court of Appeals for the Sixth Circuit, but the Sixth Circuit denied his application and his petition for rehearing. See Bailey v. MacLaren, No. 15-1363 (6th Cir. Aug. 17, 2015, and Jan. 11, 2016).

         Bailey then pursued additional state remedies without success, and on November 22, 2019, he filed his petition seeking relief from judgment pursuant to Rule 60(b)(1) and (4). He claims that he is being detained pursuant to a void judgment because (1) the state circuit court lacked subject matter jurisdiction in his criminal case and (2) the proper procedures were not followed before his criminal case was transferred from state district court to ...