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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GORDON STEWART,

 

Petitioner, Civil No. 2:09-CV-11664 

HONORABLE NANCY G. EDMUNDS

v. UNITED STATES DISTRICT JUDGE

LLOYD RAPELJE,

Respondent,

___________________________/

OPINION AND ORDER DENYING THE MOTION FOR SUMMARY JUDGMENT

AND COMPELLING ANSWER ADDRESSING PETITION’S MERITS AND THE

RULE 5 MATERIALS

Gordon Stewart, (“petitioner”), presently confined at the Saginaw

Correctional Facility in Freeland, Michigan, has filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for 

second-degree murder, M.C.L.A. 750.317, operating a motor vehicle under the

influence of intoxicating liquor causing death, M.C.L.A. 257.625(4), operating a

motor vehicle while license suspended or revoked causing death, M.C.L.A.

257.904(4), possession of an open container of alcohol in a moving vehicle,

M.C.L.A. 257.624a, and being a fourth felony habitual offender, M.C.L.A. 769.12. 

Respondent has filed a motion for summary judgment, contending that petitioner

has failed to comply with the statute of limitations contained in 28 U.S.C. §

2244(d)(1). Petitioner has filed a reply to the motion. For the reasons stated

below, the motion for summary judgment is denied and respondent is ordered to

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 This Court’s Dkt. Entry # 1. 

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 This Court’s Dkt. Entry # 4. 

3

 This Court’s Dkt. Entry # 5. 

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file an answer addressing the merits of the petition within thirty days of the

Court’s order.

I. Background

Petitioner was convicted of the above offenses following a jury trial in the

Macomb County Circuit Court. Petitioner’s direct appeals with the Michigan

courts ended on February 19, 2008, when the Michigan Supreme Court denied

petitioner leave to appeal after the Michigan Court of Appeals affirmed his

conviction. People v. Stewart, 480 Mich. 1074; 744 N.W. 2d 148 (2008).

Petitioner filed his petition for writ of habeas corpus with this Court on May

1, 2009. 1

 On May 8, 2009, Magistrate Judge R. Steven Whalen signed an order

of responsive pleadings. 2

 On May 26, 2009, petitioner filed a brief in support of

the petition for writ of habeas corpus. 3

II. Discussion

Summary judgment is appropriate "if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law." Sanders v. Freeman, 221 F. 3d 846, 851

(6th Cir. 2000)(quoting Fed. R. Civ. P. 56(c). To defeat a motion for summary

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judgment, the non-moving party must set forth specific facts sufficient to show

that a reasonable factfinder could return a verdict in his favor. Id. The summary

judgment rule applies to habeas proceedings. See Redmond v. Jackson, 295 F.

Supp. 2d 767, 770 (E.D. Mich. 2003). 

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a one

year statute of limitations shall apply to an application for writ of habeas corpus

by a person in custody pursuant to a judgment of a state court. See Corbin v.

Straub, 156 F. Supp. 2d 833, 835 (E.D. Mich. 2001). The one year statute of

limitation 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. § 2244(d)(1).

A petition for writ of habeas corpus must be dismissed where it has not

been filed within the one year statute of limitations. See Holloway v. Jones, 166

F. Supp. 2d 1185, 1187 (E.D. Mich. 2001).

Petitioner’s direct appeal of his conviction ended when the Michigan

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Supreme Court denied leave to appeal on February 19, 2008. Petitioner’s

conviction would become final, for the purposes of the AEDPA’s limitations

period, on the date that the 90 day time period for seeking certiorari with the U.S.

Supreme Court expired. See Bronaugh v. Ohio, 235 F. 3d 280, 283 (6th Cir.

2000). Petitioner’s judgment therefore became final on May 19, 2008, when he

failed to file a petition for writ of certiorari with the U.S. Supreme Court. Holloway,

166 F. Supp. 2d at 1188. Absent collateral review, petitioner would have until

May 19, 2009 to file his habeas petition in compliance with the statute of

limitations.

Respondent contends that the petition for writ of habeas corpus is untimely

because it was filed on May 26, 2009, after the one year limitations period had

expired. Respondent, however, appears to be confusing petitioner’s brief in

support of his petition for writ of habeas corpus with the actual petition itself,

which was filed on May 1, 2009 with this Court. Petitioner’s initial habeas

petition, and not any subsequently filed brief or memorandum in support of that

petition, constitutes the relevant pleading for determining whether petitioner’s

habeas application is time-barred under the AEDPA’s statute of limitations. See

Mahaffey v. Ramos, 588 F. 3d 1142, 1144-45 (7th Cir. 2009)(petitioner’s motion to

reinstate his prior habeas petition, not the later-filed supporting memorandum,

constituted the habeas petition, for purpose of determining whether the petition

was time-barred, where the motion to reinstate stated the relief requested, by

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 Petitioner contends that the petition should be deemed filed as of April 29, 2009, pursuant to the

prison mailbox rule enunciated in Houston v. Lack, 487 U.S. 266, 276 (1988), because he placed his

petition in the prison legal mail system on that date. Given that the petition for writ of habeas corpus is

timely filed even if the Court considers it filed only on the date that it was received by the Court,

petitioner’s contention is moot. 

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asking the court to grant the petition, it specified the ground for relief, and the

motion also stated the facts supporting petitioner’s claim); Carpenter v. U.S.,

492 F. Supp. 2d 912, 918 (N.D. Ill. 2007)(federal defendant’s motion to vacate

sentence filed pursuant to 28 U.S.C. § 2255, which asserted that his forthcoming

memorandum in support of his motion would provide the factual basis for his

claims, was timely, even though forthcoming memorandum was not filed until

after one-year statutory time frame had expired, where defendant otherwise

delivered his initial motion to prison authorities within the statutory time frame). 

Because petitioner’s initial habeas application was filed on May 1, 2009, within

the one year time frame for filing his habeas petition, petitioner complied with the

one year statute of limitations. 4

Because there is insufficient evidence to conclude that the habeas petition

is time barred by the statute of limitations, the Court will deny the motion for

summary judgment and order the respondent to file an answer that responds to

the merits of petitioner's habeas claims within thirty days of the Court’s order. See

Erwin v. Elo, 130 F. Supp. 2d 887, 890-91 (E.D. Mich. 2001); See also Corbin,

156 F. Supp. 2d at 837. 

The court also orders Respondent to provide any the Rule 5 materials

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which it has not already provided at the time it files its answer. The habeas

corpus rules require respondents to attach the relevant portions of the transcripts

of the state court proceedings, if available, and the court may also order, on its

own motion, or upon the petitioner’s request, that further portions of the

transcripts be furnished. Griffin v. Rogers, 308 F. 3d 647, 653 (6th Cir. 2002);

Rules Governing § 2254 Cases, Rule 5, 28 U.S.C. foll. § 2254. “When this

information is required, it is the State’s responsibility to provide it.” Griffin, 308 F.

3d at 654. 

ORDER

Accordingly, the Court ORDERS that the motion for summary judgment

[Dkt. # 7] is DENIED.

The Court further ORDERS respondent to submit an answer addressing

the merits of petitioner’s habeas claims within THIRTY DAYS of the date of this

order. Respondent is further ordered to any additional Rule 5 materials that have

not already been filed with the Court at the time that it files its answer. 

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: January 22, 2010

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I hereby certify that a copy of the foregoing document was served upon counsel

of record on January 22, 2010, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager

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