Opinion
Case No. 2:09-cv-191.
November 23, 2009
MEMORANDUM AND ORDER
Arthur Harriger ("Harriger"), a Michigan state prisoner in the custody of the Michigan Department of Corrections, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Harriger was convicted of first-degree murder on February 28, 1991, following a trial. He was sentenced to life imprisonment without the possibility of parole. Applying the prisoner mailbox rule, Harriger mailed and filed his 28 U.S.C. § 2254 habeas petition on September 4, 2009.
The case was referred to Magistrate Judge Timothy P. Greeley for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and W.D. Mich. LCivR 72.1(d). On November 6, 2009, Magistrate Judge Greeley submitted his report and recommendation. [Doc. No. 4]. It is recommended that the habeas petition be denied and dismissed with prejudice on the ground that it is time-barred by the one-year statute of limitations in 28 U.S.C. § 2244(d)(1)(A). It is further recommended that a certificate of appealablity be denied under 28 U.S.C. § 2253(c)(2). Slack v. McDaniel, 529 U.S. 473 (2000).
Harriger has raised an objection to the report and recommendation. [Doc. No. 5]. Harriger was convicted in 1991 prior to the enactment of 28 U.S.C. § 2244. 28 U.S.C. § 2244 was enacted by Congress and became effective on April 24, 1996. Harriger argues that application of the statute of limitations in 28 U.S.C. § 2244(d)(1)(A) to his habeas petition violates the Ex Post Facto Clause in Article I, Section 9, Clause 3 of the United States Constitution.
After reviewing the record de novo, the Court concludes that Harriger's objection must be denied as frivolous. Since Harriger filed his 28 U.S.C. § 2254 habeas petition in September 2009, review in this habeas case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214, which includes 28 U.S.C. § 2244. Woodford v. Garceau, 538 U.S. 202 (6th Cir. 2003); Lindh v. Murphy, 521 U.S. 320, 327-29 (6th Cir. 1997); Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). The fact that Harriger was convicted in 1991 prior to the enactment of AEDPA and 28 U.S.C. § 2244 does not alter this conclusion. Williams v. Bagley, 380 F.3d 932, 942-43 (6th Cir. 2004); Matthews v. Simpson, 603 F. Supp.2d 960, 981-82 (W.D. Ky. 2009).
Harriger's argument that the application of 28 U.S.C. § 2244(d)(1)(A) to his habeas petition violates the Ex Post Facto Clause in Article I, Section 9, Clause 3 of the United States Constitution has no merit. The Sixth Circuit rejected the same argument by a another state prisoner in a habeas action in Seymour v. Walker, 224 F.3d 542, 560 (6th Cir. 2000). In Seymour the Sixth Circuit explains that because AEDPA "`neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided a greater punishment, nor changed the proof necessary to convict,' its application . . . does not violate the Ex Post Facto Clause." Id. (quoting Dobbert v. Florida, 432 U.S. 282, 293 (1977); see also Smith v. Snyder, 48 Fed. Appx. 109, 111 (6th Cir. 2002); Matthews, 603 F. Supp.2d at 982.
Accordingly, the objection to the report and recommendation is DENIED. The Court ACCEPTS and ADOPTS the report and recommendation pursuant to 28 U.S.C. § 636(b)(1) and W.D. Mich. LCivR 72.3(b). The petition for writ of habeas corpus shall be DENIED and DISMISSED WITH PREJUDICE on the ground that it is time-barred by the statute of limitations provided in 28 U.S.C. § 2244(d)(1)(A).
If petitioner Harriger files a notice of appeal, it will be treated as an application for a certificate of appealability which shall be DENIED pursuant to 28 U.S.C. § 2253(c)(2); Fed.R.App.P. 22(b)(1); and Slack v. McDaniel, 529 U.S. 473, 484 (2000). Reasonable jurists could not find it debatable whether Harriger's habeas petition has been properly dismissed on the ground that it is time-barred by the statute of limitations in 28 U.S.C. § 2244(d)(1)(A).
A separate judgment will enter.
SO ORDERED.