United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF UNITED STATES DISTRICT JUDGE
a habeas corpus petition filed pursuant to 28 U.S.C. §
2254. The matter was referred to the Magistrate Judge, who
issued a Report and Recommendation (R&R, Dkt 4)
recommending that this Court deny the petition as barred
under the one-year statute of limitations. The matter is
presently before the Court on Petitioner's objections to
the Report and Recommendation (Objs., Dkt 6, as supplemented
by Dkts 7, 8, 9, 10 & 12) and on Petitioner's Motion
for Appointment of Counsel (Dkt 11). In accordance with 28
U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(3), the Court
has considered de novo those portions of the Report and
Recommendation to which objections have been made. The Court
denies the objections, denies the motion as moot, and issues
this Opinion and Order. The Court will also issue a Judgment
in this § 2254 proceeding. See Gillis v. United
States, 729 F.3d 641, 643 (6th Cir. 2013) (requiring a
separate judgment in habeas proceedings).
Petitioner argues that the Magistrate Judge erred in
concluding that his petition should be barred by the one-year
statute of limitations (Objs., Dkt 6 at PageID.51; Dkt 7 at
PageID.58). Petitioner asserts that “a continuing
violation exist[s]” (Objs., Dkt 6 at PageID.51). He
contends that “[e]ach day under the jurisdiction of the
MDOC the wrong is continuing as a result of [J]udge Hicks
[sic] ruling & sentence causing a constitutional
violation” (id. at PageID.52).
continuing-violation exception to a statute of limitations
most often applies to allegations of discrimination under
Title VII. See, e.g., E.E.O.C. v. Penton Indus.
Co., 851 F.2d 835, 838-39 (6th Cir. 1988). “Courts
have been extremely reluctant to apply this doctrine outside
of the context of Title VII.” LRL Props. v. Portage
Metro Hous. Auth., 55 F.3d 1097, 1105 n.3 (6th Cir.
1995). Petitioner does not allege discrimination, and
Petitioner presents no argument for extending the
continuing-violation exception to habeas proceedings.
Furthermore, even if this Court were to extend the
continuing-violation exception to Petitioner's habeas
petition, his claim fails on the merits.
‘continuous violation' exists if: (1) the
defendants engage in continuing wrongful conduct; (2) injury
to the plaintiffs accrues continuously; and (3) had the
defendants at any time ceased their wrongful conduct, further
injury would have been avoided.” Hensley v. City of
Columbus, 557 F.3d 693, 697 (6th Cir. 2009) (quoting
Kuhnle Bros., Inc. V. County of Geauga, 103 F.3d
516, 521 (6th Cir. 1997) (citations omitted)). “A
continuing violation is occasioned by continual unlawful
acts, not continual ill effects from an original
violation.” Eidson v. Tenn. Dep't of
Children's Servs., 510 F.3d 631, 635 (6th Cir. 2007)
(citations omitted). Petitioner asserts that continual
wrongful conduct persists today because the MDOC continues to
enforce his conviction of failure to pay child support
(Objs., Dkt 6 at PageID.52). But this argument is without
merit. Petitioner's subsequent imprisonment is an
“ill effect” from what he claims was the actual
violation-prosecuting him on a “null and void”
order (Objs., Dkt 6 at PageID.53). See, e.g.,
Hughley v. Gerbitz, 798 F.2d 469 (6th Cir. 1986)
(unpublished) (finding no continuing injury from
imprisonment). Petitioner has presented the Court with no
reason to extend the continuous-violation exception to his
Petitioner seeks to clarify his original sentencing date,
arguing that the Magistrate Judge erred in concluding that it
was January 23, 2012, instead of April 7, 2014 (Objs., Dkt 9
at PageID.69; Dkt 12). He argues that the latter sentencing
date puts his habeas petition within the one-year limitations
period (Objs., Dkt 9 at PageID.70). Petitioner's
objection fails to demonstrate any factual or legal error in
the Magistrate Judge's analysis or conclusion. Petitioner
admits in his habeas petition that he was sentenced on
January 23, 2012 (Dkt 1 at PageID.1). Also, Petitioner's
offered exhibit (Objs, Dkt 9-1 at PageID.72) only shows that
his probation was revoked on April 7, 2014, not that he was
sentenced for the crime of failure to pay child support on
April 7, 2014 (id.). The Magistrate Judge did not
error in concluding that the sentencing date was January 23,
Petitioner claims that he is actually innocent of the crimes
he was convicted of, so as to except him from the one-year
statute of limitations (Objs., Dkt 7 at PageID.60; Dkt 10).
Petitioner argues that “Judge Hicks [took] jurisdiction
from Judge Pittman result[ing] in a miscarriage-of-justice
[sic]” (Objs., Dkt 7 at PageID.60). Because Judge
Pittman modified Petitioner's child support payments,
Petitioner argues that the trial judge, Judge Hicks, did not
have jurisdiction to hear Petitioner's prosecution based
on non-payments occurring before the modification
(id. at PageID.60-62). Petitioner cites Mich. Comp.
Laws § 552.455 for this argument.
Magistrate Judge noted, a habeas petitioner who can show
actual innocence under the rigorous standard of Schlup v.
Delo, 513 U.S. 298 (1995), is excused from the
procedural bar of the statute of limitations under the
miscarriage-of-justice exception (R&R, Dkt 4 at
PageID.48). To make this showing, Petitioner must present
“new evidence” showing that “‘it is
more likely than not that no reasonable juror would have
convicted [Petitioner] in the light of the new
evidence.” McQuiggin v. Perkins, 133 S.Ct.
1924, 1935 (quoting Schlup, 513 U.S. at 329).
Petitioner's only “new evidence” is two
Income Withholding for Support forms (Objs., Dkt 10-1 at
PageID.80; Dkt 10-1 at PageID.83), which Petitioner argues
shows actual innocence because “[t]he Friend of the
court recognized the wrong and without a hearing rejected
14th circuit court judge Timothy G. Hicks [sic] withhold
order finding it to be void and unenforceable, then amended
the withholding order to 14th circuit court judge Gregory
Pittman's orginal arrears order entered Jan[uary] 1, 2011
. . . ” (Objs., Dkt 10 at PageID.75).
argument is without merit. First, the Income Withholding for
Support Forms do not evince that Judge Hicks's sentence
was “unenforceable.” Second, Petitioner has not
shown that this new evidence makes it “more likely than
not that no reasonable juror would have convicted” him.
Furthermore, Petitioner admits that no jury would be
empaneled if his case were re-tried with the new evidence
(Objs., Dkt 10 at PageID.76). And for the purposes of actual
innocence, a petitioner must show “factual innocence,
not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998). Therefore,
Petitioner's claim of actual innocence is without merit.
Petitioner's habeas petition is properly denied, his
pending Motion for Appointment of Counsel (Dkt 11) is
properly denied as moot.
determined Petitioner's objections lack merit, the Court
must further determine pursuant to 28 U.S.C. § 2253(c)
whether to grant a certificate of appealability as to the
issues raised. See Rules Governing § 2254
Cases, Rule 11 (requiring the district court to “issue
or deny a certificate of appealability when it enters a final
order”). The Court must review the issues individually.
Slack v. McDaniel, 529 U.S. 473 (2000); Murphy
v. Ohio, 263 F.3d 466, 466-67 (6th Cir. 2001).
the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Slack, 529
U.S. at 484. “Where a plain procedural bar is present
and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that
the district court erred in dismissing the petition or that
the petitioner should be allowed to proceed further.”
Id. Upon review, this Court finds that reasonable
jurists would not find the Court's procedural ruling
debatable as to each issue asserted. A certificate of
appealability will therefore be denied.
IT IS ORDERED that the Objections (Dkt 6, as supplemented by
Dkts 7, 8, 9, 10 & 12) are DENIED and the Report and
Recommendation of the Magistrate Judge (Dkt 4) is ...