Grove v. Lafler

Filing 26

OPINION AND ORDER granting 24 Motion to Dismiss; and Denying Certificate of Appealability. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEM ELLIS GROVE,
Case Number: 5:07-CV-11703

Petitioner,

HON. JOHN CORBETT O’MEARA

v.
BLAINE LAFLER,
Respondent.
/

OPINION AND ORDER GRANTING RESPONDENT’S MOTION TO
DISMISS AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Lem Ellis Grove is in the custody of the Michigan Department of
Corrections pursuant to a second-degree murder conviction. Grove filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed a motion to dismiss
on the ground that the petition is untimely. The Court finds that the petition was not
timely filed and grants the motion.
I.
Grove was convicted by a jury in Wayne County Circuit Court of second-degree
murder. On April 23, 2004, he was sentenced to 20 to 40 years in prison. Petitioner filed
an appeal of right in the Michigan Court of Appeals, raising three claims for relief. The
Michigan Court of Appeals affirmed Petitioner’s conviction. People v. Grove, No.
255397, 2005 WL 1593665 (Mich. Ct. App. July 7, 2005). The Michigan Supreme Court
denied Petitioner’s application for leave to appeal. People v. Grove, 474 Mich. 989

(Mich. Dec. 28, 2005).
On April 12, 2007, Petitioner filed a habeas corpus petition raising three claims.
He then sought to amend his petition to include two additional claims and a stay to allow
him to exhaust those two claims in state court. On July 24, 2007, the Court granted leave
to amend and stayed the proceedings. On October 3, 2007, Petitioner filed a state motion
for relief from judgment. The trial court denied Petitioner’s motion for relief from
judgment. People v. Grove, No. 03-014085-01-FC (Wayne County Cir. Ct. July 30,
2008). The Michigan Court of Appeals denied Petitioner’s delayed application for leave
to appeal on April 29, 2009. People v. Grove, No. 289-095 (Mich. Ct. App. Apr. 29,
2009). Petitioner’s application for leave to appeal to the Michigan Supreme Court was
rejected for filing because it was not timely filed.
On August 17, 2009, Petitioner filed a motion to reopen this habeas proceeding
because the state court had not yet ruled on his motion for relief from judgment. On
November 2, 2009, after counsel was appointed by the state trial court, Petitioner filed a
motion to continue to hold this habeas proceeding in abeyance. On February 18, 2010,
the Court denied the motion to reopen and granted the request to continue holding the
case in abeyance because Petitioner indicated that further papers would be filed in state
court.
On August 19, 2011, Petitioner filed an amended habeas petition and a request to
reopen this case. The Court granted the request without prejudice to Respondent’s right
to raise an argument that Petitioner failed to comply with the terms of the Court’s order.
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II.
Respondent argues that the petition should be dismissed because Petitioner failed
to comply with the terms of the Court’s order granting a stay, and the amended petition,
therefore, is untimely. The Court granted the stay conditioned upon Petitioner filing a
motion for relief from judgment in the trial court within sixty days from the date of the
stay order and filing a motion to lift the stay and an amended petition in this Court within
sixty days after the conclusion of state court proceedings. Respondent claims that
Petitioner complied with neither time requirement.
The Court stayed this matter on July 24, 2007. Petitioner filed a motion for relief
from judgment in state court on October 3, 2007, eleven days after the sixty day time
period prescribed by the Court. Thus, he failed to comply with the terms of the stay on
the front end. In addition, Petitioner failed to comply with the terms of the stay when he
asked the Court to reopen these proceedings. The Michigan Court of Appeals denied
Petitioner’s application for leave to appeal the denial of his motion for relief from
judgment on April 29, 2009. Petitioner failed to file a timely application for leave to
appeal in the Michigan Supreme Court. Petitioner moved to continue the stay in this
matter on November 2, 2009, because counsel had been appointed in state court. The
Court granted the motion and continued to hold these proceedings in abeyance. Petitioner
failed to take any further action in state court or in this Court until August 19, 2011, when
he asked this Court to reopen these proceedings. For a period of almost two years – from
November 2, 2009 until August 19, 2011 – Petitioner had no matters pending in state
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court and failed to move to reopen proceedings in this case. Thus, he clearly failed to
comply with the conditions of the stay and, in accordance with the Sixth Circuit
precedent, the Court vacates the stay as of the date it was entered, July 24, 2007, and
dismisses the petition. Petitioner’s amended petition, filed well after the one-year
limitations period expired, is untimely. Palmer v. Carlton, 276 F.3d 777, 780-82 (6th Cir.
2002) (“If the conditions of the stay are not met, the stay may later be vacated nunc pro
tunc as of the date the stay was entered, and the petition may be dismissed.”)(internal
quotation omitted).
III.
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. Rule 11 of
the Rules Governing Section 2254 Proceedings, which was amended as of December 1,
2009, requires that 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,
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1307 (6th Cir. 1997). To receive a certificate of appealability, “a petitioner must show
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 Petitioner failed to comply with the conditions of the stay.
Therefore, the Court denies a certificate of appealability.
IV.
Accordingly, IT IS ORDERED that Respondent’s Motion to Dismiss [dkt. #24] is
GRANTED and the petition for a writ of habeas corpus is DISMISSED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

s/John Corbett O’Meara
United States District Judge
Date: June 5, 2012

I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, June
5, 2012, using the ECF system, and upon Petitioner at Lakeland Correctional Facility, 141 First Street, Coldwater,
Michigan 49036 by first-class U.S. mail.

s/William Barkholz
Case Manager

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