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Jewell #153955 v. Harry - Document No. 7

Jewell #153955 v. Harry - Document No. 7

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Published by Justia.com
REPORT AND RECOMMENDATION that the habeas corpus petition be denied as time-barred; objections to R&R due within 10 days ; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh) 1:2006cv00223 Michigan Western District Court
REPORT AND RECOMMENDATION that the habeas corpus petition be denied as time-barred; objections to R&R due within 10 days ; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh) 1:2006cv00223 Michigan Western District Court

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Published by: Justia.com on Apr 29, 2008
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UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BOBBY JEWELL,
))
Petitioner,
)
Case No. 1:06-cv-223
)
v.
)
Honorable Robert Holmes Bell
)
SHIRLEE HARRY,
))
REPORT AND RECOMMENDATION
Respondent.
)
____________________________________)

This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. \u00a7 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether \u201cit 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.\u201d Rule 4, RULES GOVERNING \u00a7 2254 CASES;see 28 U.S.C. \u00a7 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 \u201cscreen out\u201d 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. \u00a7 2244(d) prior to ordering the respondent to answer.Scott v. Collins, 286 F.3d 923, 929-30 (6th Cir. 2002). After undertaking the review required by Rule 4, I conclude that the petition is barred by the one-year statute of limitations.

Case 1:06-cv-00223-RHB-JGS Document 7
Filed 04/06/2006 Page 1 of 7
Jewell #153955 v. Harry
Doc. 7
Dockets.Justia.com
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Discussion
I.
Factual Allegations

Petitioner is incarcerated in the Muskegon Correctional Facility. Petitioner was convicted in the Muskegon County Circuit Court of armed robbery, MICH. COMP. LAWS \u00a7 750.529; and possession of a firearm during the commission of a felony, MICH. COMP. LAWS \u00a7 750.227b. Petitioner subsequently pleaded guilty to being a fourth habitual offender, MICH. COMP. LAWS \u00a7 769.12. On February 25, 1992, the trial court imposed an enhanced prison sentence of twenty to forty-five years for the armed robbery conviction and consecutive two year term for the felony- firearm conviction. The Michigan Court of Appeals affirmed Petitioner\u2019s conviction on February 25, 1994. Petitioner did not apply for leave to appeal in the Michigan Supreme Court.

On April 10, 2003, Petitioner filed a motion for relief from judgment in the Muskegon County Circuit Court raising the same claim now presented in his habeas petition. He asserted that his sentence was defective because the trial court erroneously sentenced him as a third habitual offender when Petitioner never pleaded guilty to being a third habitual offender. The circuit court denied Petitioner\u2019s motion on August 6, 2003, and his motion for reconsideration on August 28, 2003. The Michigan Court of Appeals and the Michigan Supreme Court denied Petitioner\u2019s applications for leave to appeal on August 20, 2004 and May 31, 2005, respectively.

II.
Statute of Limitations

Petitioner\u2019s application is barred by the one-year statute of limitations provided in 28 U.S.C. \u00a7 2244(d)(1), which became effective on April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act, PUB. L. NO. 104-132, 110 STAT. 1214 (AEDPA). Prior to enactment

Case 1:06-cv-00223-RHB-JGS Document 7
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1Previously, the only time limit was provided in Rule 9 of the Rules Governing \u00a7 2254 Cases, which allows
dismissal of a petition only under circumstances where the state has been prejudiced by the delay in filing.
- 3 -
of the AEDPA, there was no defined period of limitation for habeas actions.1Section 2244(d)(1)
provides:

(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 initially 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 presented
could have been discovered through the exercise of due diligence.

28 U.S.C. \u00a7 2244(d)(1). The running of the statute of limitations is tolled when \u201ca properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.\u201d 28 U.S.C. \u00a7 2244(d)(2); see also Duncan v. Walker, 533 U.S. 167 (2001) (limiting the tolling provision to only state, and not federal, processes); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (defining \u201cproperly filed\u201d).

In this case, \u00a7 2244(d)(1)(A) provides the period of limitation. The other subsections do not apply to the grounds that Petitioner has raised. Under \u00a7 2244(d)(1)(A), the one-year limitation period runs from \u201cthe date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.\u201d According to Petitioner, the Michigan

Case 1:06-cv-00223-RHB-JGS Document 7
Filed 04/06/2006 Page 3 of 7

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