Opinion
CIVIL CASE NO. 02-CV-72879-DT
February 13, 2003
OPINION AND ORDER DENYING THE MOTION TO VACATE THE JUDGMENT
On November 20, 2002, this Court issued an opinion and order summarily dismissing petitioner's application for writ of habeas corpus pursuant to 28 U.S.C. § 2244(d)(1), on the ground that the petition had not been filed in compliance with the one year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act (AEDPA). Brown v. McKee, ___ F. Supp.2d ___; 2002 WL 31681310 (E.D. Mich. November 20, 2002). The Court also denied petitioner a certificate of appealability and leave to appeal in forma pauperis. Id. Petitioner has now filed a motion to vacate judgment pursuant to Fed.R.Civ.P. 60(b)(6). For the reasons stated below, the motion is denied.
Petitioner's first claims that his conviction never became final, for purposes of commencing the one year limitations period pursuant to § 2244(d)(1)(A), because the Michigan Supreme Court denied his application for leave to appeal by form order and without giving a written reason for doing so, in violation of Michigan law.
This Court noted in its original opinion and order of summary dismissal that there was no indication that petitioner ever sought leave to appeal from the Michigan Court of Appeals' affirmance of his conviction on September 24, 1992. People v. Brown, 149874 (Mich.Ct.App. September 24, 1992). Petitioner has now attached an order from the Michigan Supreme Court denying him leave to appeal, but this order obviously relates to another case because it has a different Michigan Court of Appeals case number (127860) and is dated from April 24, 1992, prior to the Michigan Court of Appeals decision which affirmed petitioner's conviction in this case. People v. Brown, 92728 (Mich.Sup.Ct. April 24, 1992).
Order attached to Motion to Vacate the Judgment.
In the present case, petitioner has presented no evidence that he sought further appellate review of his case with the Michigan Supreme Court after the Michigan Court of Appeals affirmed his conviction. Because petitioner never sought leave to appeal his conviction to the Michigan Supreme Court, petitioner's conviction became final, for purposes of § 2244(d)(1)(A), on November 19, 1992, when the fifty six day time period for seeking leave to appeal with the Michigan Supreme Court pursuant to M.C.R. 7.302(C)(3) expired. Erwin v. Elo, 130 F. Supp.2d 887, 889 (E.D. Mich. 2001). Therefore, it becomes moot whether a form order by the Michigan Supreme Court which affirmed a conviction would constitute a final judgment for purposes of commencing the one year limitations period.
In any event, petitioner's argument that the one year limitations period does not begin to run pursuant to § 2244(d)(1)(A) until the Michigan Supreme Court issues a written opinion affirming a petitioner's conviction would eviscerate the one year limitations period, because the Michigan Supreme Court denies leave to appeal to criminal defendants in the overwhelming majority of cases by form order. When a defendant presents a claim to a state appellate court, and the appellate could affirms the conviction without an opinion, a federal court should presume that the appellate court considered the constitutional claim and decided it on the merits. Galvin v. Kelly, 79 F. Supp.2d 265, 274 (W.D.N.Y. 2000) (citing to Parron v. Quick, 869 F.2d 87, 90 (2nd Cir. 1989)). "[T]he fact that a disposition is by informal summary order rather than by formal published opinion in no way indicates that less than adequate consideration has been given to the claims raised in the appeal." Furman v. United States, 720 F.2d 263, 265 (2nd Cir. 1983); See also Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit."). This Court therefore concludes that a form order by the Michigan Supreme Court which denies leave to appeal to a criminal defendant constitutes a final decision, for purposes of § 2244(d)(1)(A).
Petitioner further argues that application of the one year statute of limitations violates the Suspension Clause of the United States Constitution. See U.S. Const. Art. I, § 9 cl. 2. Petitioner's attack on the constitutionality of the limitations period has been consistently rejected. Applying the one-year time limitations period contained within the AEDPA does not violate the Suspension Clause. Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2nd Cir. 2000); Turner v. Johnson, 177 F.3d 390, 392-393 (5th Cir. 1999); Rhodes v. Senkowski, 82 F. Supp.2d 160, 174 (S.D.N.Y. 2000); Thomas v. Straub, 10 F. Supp.2d 834, 836 (E.D. Mich. 1998).
Petitioner's remaining contentions are a rehash of the arguments that he made in his response to the Court's order to show cause. These arguments were considered and rejected by the Court in its original opinion and order of summary dismissal and will not be reconsidered.
ORDER
Based upon the foregoing, IT IS ORDERED that the motion to vacate the judgment is DENIED.