Hill v. Rewerts

          OPINION AND ORDER (1) SUMMARILY DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE PAUL D. BORMAN UNITED STATES DISTRICT COURT JUDGE

         Jermaine D. Hill, (“Petitioner”), confined at the Alger Correctional Facility in Munising, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for first-degree murder, Mich. Comp. Laws § 750.316, assault with intent to commit murder, Mich. Comp. Laws § 750.83, and possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b. Respondent filed a motion to dismiss the petition, on the ground that it was not timely filed in accordance with the statute of limitations contained in 28 U.S.C. § 2244 (d)(1). For the reasons stated below, the petition for a writ of habeas corpus is summarily denied with prejudice.

         I. BACKGROUND

         Petitioner was convicted following a jury trial in the Detroit Recorder's Court.

         Direct review of petitioner's conviction ended in the state courts on December 30, 1998, when the Michigan Supreme Court denied petitioner's application for leave to appeal following the affirmance of his conviction by the Michigan Court of Appeals. People v. Hill, 459 Mich. 933, 615 N.W.2d 735 (1998).

         Petitioner filed a post-conviction motion for relief from judgment with the state trial court on January 27, 2017. (See ECF No. 9-1, Page ID 73). After the trial court and the Michigan Court of Appeals denied petitioner post-conviction relief, collateral review of petitioner's conviction ended in the Michigan courts on October 30, 2018, when the Michigan Supreme Court denied petitioner leave to appeal the denial of his post-conviction motion. People v. Hill, 503 Mich. 887, 919 N.W.2d 261 (2018).

         On April 30, 2019, petitioner filed his habeas petition with this Court.^[1]

         II. DISCUSSION

         In the 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).

         28 U.S.C. § 2244(d) imposes a one-year statute of limitations upon petitions for habeas relief:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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 prevented from filing by such State action;

(C) the date on which the constitutional right asserted was originally recognized by the Supreme Court if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims ...