Arnett v. Winn
Filing
9
OPINION AND ORDER granting 7 respondent's Motion to Dismiss Petition and Denying a Certificate of Appealability. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK ARNETT,
Petitioner,
Case Number: 2:18-CV-11486
HON. GEORGE CARAM STEEH
v.
THOMAS WINN,
Respondent.
/
OPINION AND ORDER GRANTING
RESPONDENT’S MOTION TO DISMISS PETITION
AND DENYING A CERTIFICATE OF APPEALABILITY
This matter is before the Court on Petitioner Mark Arnett’s petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is a state
inmate at the Lakeland Correctional Facility in Coldwater, Michigan. He
challenges his convictions for two counts of armed robbery, Mich. Comp.
Laws § 750.529, and one count of falsely reporting a felony, Mich. Comp.
Laws § 750.411a. Respondent, through the Attorney General’s Office,
has filed a motion to dismiss arguing that the petition was not timely filed.
The Court finds that the petition is untimely and that equitable tolling of the
limitations period is unwarranted. The Court will grant the motion to
dismiss.
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I.
Background
Petitioner was convicted by a jury in Oakland County Circuit Court
and sentenced as a fourth habitual offender to 25 to 60 years’
imprisonment for the two armed robbery convictions, and 4 to 15 years for
the false report conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals.
The Michigan Court of Appeals affirmed his convictions. People v. Arnett,
No. 305553, 2012 WL 3966381 (Mich. Ct. App. Sept. 11, 2012). On March
4, 2013, the Michigan Supreme Court denied leave to appeal. People v.
Arnett, 493 Mich. 940 (Mich. March 4, 2013).
On May 4, 2016, Petitioner filed a motion for relief from judgment in
the trial court. The trial court denied the motion. People v. Arnett, No. 11235798 (Oakland County Cir. Ct. June 22, 2016). Petitioner sought leave
to appeal in the Michigan Court of Appeals and Michigan Supreme Court.
Both state appellate courts denied leave to appeal. People v. Arnett, No.
336177 (Mich. Ct. App. May 12, 2017); People v. Arnett, 501 Mich. 1035
(Mich. Apr. 3, 2018).
Petitioner filed a habeas corpus petition on April 11, 2018.
Respondent filed a motion to dismiss on the ground that the petition was
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not timely filed. Petitioner has not filed a response to the motion.
II.
Discussion
Respondent argues that the petition is barred by the one-year statute
of limitations. Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214, applies to all habeas petitions filed after its effective date,
April 24, 1996, and imposes a one-year limitations period for habeas
petitions. See 28 U.S.C. § 2244(d)(1). A prisoner must file a federal
habeas corpus petition within one year of the “date on which the judgment
became final by the conclusion of direct review or the expiration of the time
for seeking such review . . . or 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. § 2244(d)(1)(A) & (D). The time
during which a prisoner seeks state-court collateral review of a conviction
does not count toward the limitation period. 28 U.S.C. § 2244(d)(2); Ege v.
Yukins, 485 F.3d 364, 371-72 (6th Cir. 2007). A properly filed application
for state post-conviction relief, while tolling the limitation period, does not
reset the limitation period at zero. Vroman v. Brigano, 346 F.3d 598, 602
(6th Cir. 2003).
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Petitioner appealed his conviction first to the Michigan Court of
Appeals, and then to the Michigan Supreme Court. The Michigan
Supreme Court denied his application for leave to appeal on March 4,
2013. People v. Arnett, 493 Mich. 940 (Mich. March 4, 2013). Petitioner
had ninety days from that date to file a petition for writ of certiorari with the
United States Supreme Court, which he did not do. Thus, his conviction
became final on June 2, 2013, when the time period for seeking certiorari
expired. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (one-year
statute of limitations does not begin to run until the time for filing a petition
for a writ of certiorari for direct review in the United States Supreme Court
has expired). The last day on which a petitioner can file a petition for a writ
of certiorari in the United States Supreme Court is not counted toward the
one-year limitations period applicable to habeas corpus petitions. Id. at
285. Accordingly, the limitations period commenced on June 3, 2013, and
continued to run until it expired one year later, on June 3, 2014.
Petitioner’s motion for relief from judgment did not toll the limitations
period. The motion was filed on May 4, 2016, almost two years after the
limitations period already expired. Vroman, 346 F.3d at 602 (6th Cir. 2003)
(holding that the filing of a motion for collateral review in state court serves
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to “pause” the clock, not restart it).
Petitioner does not assert an argument for equitable tolling in his
petition and has not responded to the motion. The Court finds no basis for
equitable tolling and will grant the motion for dismissal.
III. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability (COA) is issued under 28
U.S.C. § 2253. A district court must “issue or deny a certificate of
appealability when it enters a final order adverse to the applicant. . . . If the
court issues a certificate, the court must state the specific issue or issues
that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Rule 11,
Rules Governing Section 2255 Proceedings.
A certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Courts must either issue a certificate of appealability
indicating which issues satisfy the required showing or provide reasons
why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R.
App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th
Cir. 1997). To receive a certificate of appealability, “a petitioner must show
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that reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal
quotes and citations omitted).
In this case, the Court concludes that reasonable jurists would not
debate the Court’s conclusion that the petition is untimely. Therefore, the
Court denies a certificate of appealability.
IV. Conclusion
The Court finds that Petitioner failed to file his habeas petition within
the applicable one-year limitations period. Accordingly, the Court GRANTS
Respondent’s Motion to Dismiss (ECF No. 7) and the petition for a writ of
habeas corpus is DISMISSED. The Court DENIES a certificate of
appealability. If Petitioner chooses to appeal the Court’s decision, he may
proceed in forma pauperis on appeal because an appeal could be taken in
good faith. 28 U.S.C. § 1915(a)(3).
Dated: March 4, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record
on March 4, 2019, by electronic and/or ordinary mail and
also on Mark Arnett #209040, Lakeland Correctional
Facility, 141 First Street, Coldwater, MI 49036.
s/Marcia Beauchemin
Deputy Clerk
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