NANCY G. EDMUNDS, District Judge.
This matter is pending before the Court on petitioner Devin Eugene McKay's habeas corpus petition under 28 U.S.C. § 2254. McKay challenges his Wayne County convictions for assault with intent to commit murder, Mich. Comp. Laws § 750.83, and possession of a firearm during the commission of a felony. Mich. Comp. Laws § 750.227b. Respondent, through the Attorney General's office, filed a motion to dismiss, arguing that the petition is untimely. For the reasons which follow, the Court grants the motion.
McKay's convictions arise from the shooting of Jamaal Mason. The Michigan Court of Appeals summarized the testimony leading to McKay's convictions as follows:
People v. McKay, No. 323519, 2016 WL 192003, *1 (Mich. Ct. App. Jan. 14, 2016).
McKay was convicted by a jury in Wayne County Circuit Court and, on August 26, 2014, sentenced to fifteen to thirty years for the assault conviction to be served consecutively to two years for the felony-firearm conviction. The Michigan Court of Appeals affirmed McKay's convictions. Id. The Michigan Supreme Court denied leave to appeal. People v. McKay, 499 Mich. 985 (Mich. July 26, 2016).
McKay filed a motion for relief from judgment in the trial court on June 19, 2017.
McKay filed this petition on May 28, 2019. Respondent filed a motion to dismiss the petition on the ground that it was not timely filed. McKay has not responded to the motion.
Respondent argues that the petition is barred by the one-year statute of limitations. Under 28 U.S.C. § 2244(d), 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 Michigan Supreme Court denied McKay's application for leave to appeal on July 26, 2016. Because Petitioner did not petition for a writ of certiorari with the United States Supreme Court, his conviction became final on October 25, 2016, 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 limitations period commenced the following day, October 26, 2016, and continued to run until June 19, 2017, when McKay filed a motion for relief from judgment in the trial court. The motion for relief from judgment tolled the limitations period with 129 days remaining. See 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation...."). The limitations period continued to be tolled until October 30, 2018, when the Michigan Supreme Court denied Petitioner's application for leave to appeal. The limitations period resumed on October 31, 2018, and expired 129 days later, on March 9, 2017.
McKay signed and dated his petition on May 28, 2019, and it is considered filed on that date. See Houston v. Lack, 487 U.S. 266, 270 (1988). Therefore, the petition was filed over two months after the limitations period expired. Absent equitable tolling, the petition is time barred. McKay did not respond to the motion to dismiss and did not address the timeliness issue in his petition. The Court finds no basis for equitably tolling the limitations period.
For the reasons stated, Respondent's motion for dismissal is GRANTED. The petition is DISMISSED.
Further, because jurists of reason could not find the Court's procedural ruling that the petition is untimely debatable, a certificate of appealability is DENIED. See 28 U.S.C. § 2253(c)(1)(a), (2); Fed. R. App. P. 22(b).
SO ORDERED.