The opinion of the court was delivered by: R. Allan Edgar United States District Judge
Michael Gresham, a Michigan state prisoner in the custody of the Michigan Department of Corrections (MDOC), filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. The habeas petition 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 February 2, 2010, Magistrate Judge Greeley submitted his report and recommendation. [Doc. No. 19]. It is recommended that Gresham's amended habeas petition be denied and dismissed with prejudice on the ground it is time-barred by the limitations in 28 U.S.C. § 2244(d)(1)(A). Magistrate Judge Greeley correctly determined that Gresham has failed to allege and demonstrate sufficient facts and circumstances that would warrant equitable tolling of the statute of limitations. It is further recommended that a certificate of appealablity be denied under 28 U.S.C. § 2253(c)(2) because reasonable jurists could not find it debatable whether Gresham's habeas petition is time-barred by the statute of limitations. Slack v. McDaniel, 529 U.S. 473 (2000).
Gresham objects to the report and recommendation, and raises two main arguments. First, Gresham argues that the running of the statute of limitations should be calculated under 28 U.S.C. § 2244(d)(1)(B). It is argued that MDOC employees confiscated prisoner Gresham's legal property which impeded and prevented him from filing his § 2254 habeas petition. Second, Gresham argues that he is entitled to equitable tolling of the statute of limitations based on the actual innocence equitable tolling doctrine. Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005).
After reviewing the entire record de novo, the Court concludes that Gresham's objections [Doc. No. 20] are without merit and will be denied. Gresham has not met his burden of showing that 28 U.S.C. § 2244(d)(1)(B) is applicable and governs when the statute of limitations commences to run on his habeas petition. Gresham is not entitled to equitable tolling of the statute of limitations because he has not met his burden of showing that he has a credible claim of actual innocence based on newly discovered evidence.
The Court agrees with and adopts the report and recommendation. Gresham's habeas petition must be denied and dismissed with prejudice on the ground that it is time-barred by applicable statute of limitations provided in 28 U.S.C. § 2244(d)(1)(A).
On April 17, 2000, Gresham was found guilty and convicted in the Kent County Circuit Court, Grand Rapids, Michigan, on the following criminal charges after a jury trial: two counts of first degree criminal sexual assault in violation of Michigan Compiled Laws (M.C.L.) § 750.520b, one count of felon in possession of a firearm in violation of M.C.L. § 750.224f, and one count of possession of a firearm during the commission of a felony (felony-firearm) in violation of M.C.L. § 750.227b. Gresham was sentenced to 23 to 75 years imprisonment for the two first degree sexual assault convictions, 2 to 10 years imprisonment for the felon in possession of firearm conviction, and 2 years imprisonment for the felony-firearm conviction.
Gresham took a direct appeal. On April 26, 2002, the Michigan Court of Appeals affirmed the judgment of conviction and dismissed the direct appeal. People of State of Michigan v. Gresham, 2002 WL 864390 (Mich. App. April 26, 2002). Gresham filed a delayed application for leave to appeal which was denied by the Michigan Supreme Court on October 29, 2002. People of State of Michigan v. Gresham, 467 Mich. 895, 653 N.W.2d 410 (Mich. October 29, 2002).
On April 21, 2003, Gresham filed a motion for relief from the judgment of conviction in the Kent County Circuit Court which was denied. He next filed a delayed application for leave to appeal which was denied by the Michigan Court of Appeals on August 16, 2005. Gresham claims that he attempted to file an appeal in the Michigan Supreme Court, but the Clerk of the Michigan Supreme Court never received it.
28 U.S.C. § 2244(d)(1) provides in pertinent part:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period 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; [or]
(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; .... 28 U.S.C. § 2244(d)(2) provides: "The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent ...