United States District Court, W.D. Michigan, Southern Division
JERRY L. TANNER, Petitioner,
SHERRY L. BURT, Respondent.
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 3)
recommending that this Court deny the petition as time-barred
under the one-year statute of limitations pursuant to 28
U.S.C. § 2244(d). The matter is presently before the
Court on Petitioner's objections to the Report and
Recommendation. 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
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 generally asserts that the Magistrate Judge
"did not take exception that the requirements contained
in 28 U.S.C. [§] 2244 did not apply to this case, "
and that he "has facially met the gateway standard for
permitting review of his claims in order to prevent
fundamental miscarriage of justice" (Obj s., Dkt 4 at
PageID.65). Petitioner provides no elaboration or supporting
argument for these assertions beyond citing two cases; the
basis of his specific objection, if any, is unclear, and
thus, waived. "' [I]ssues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a
party to mention a possible argument in a most skeletal way,
leaving the court to ... put flesh on its bones.'"
Cox v. Curtin, 698 F.Supp.2d 918, 949-50 (W.D. Mich.
2010) (quoting McPherson v. Kelsey, 125 F.3d 989,
995-96 (6th Cir. 1997)).
event, to the extent Petitioner intends to assert that the
Magistrate Judge erred in applying the one-year statute of
limitations period found in AEDPA, the argument has no merit.
The Magistrate Judge correctly noted that "[a]
petitioner whose conviction became final prior to the
effective date of the AEDPA, April 24, 1996, has one year
from the effective date in which to file his petition"
(R&R, Dkt 3 at PageID.60).
to the extent Petitioner attempts to raise an actual
innocence argument to reach the merits of his barred claims
pursuant to the language found in Schlup v. Delo,
513 U.S. 298, 315 (1995), his argument likewise fails. The
Magistrate Judge addressed and properly rejected
Petitioner's actual innocence argument (R&R, Dkt 3
atPageID.63). To make an actual innocence claim, a petitioner
must present new evidence showing that "'it is more
likely than not that no reasonable juror would have convicted
[the petitioner] . . . .'" McQuiggin v.
Perkins, 133 S.Ct. 1924, 1935 (2013) (citation omitted).
Petitioner offers no new evidence or argument of his actual
innocence and has thus shown no error in the Magistrate
Judge's analysis or conclusion.
Petitioner argues that the Magistrate Judge erred in finding
no basis for equitable tolling of the statute of limitations
because "extraordinary circumstances" existed to
toll the limitations period (Objs., Dkt 4 at PageID.66). The
Magistrate Judge fully addressed the merits of an
equitable-tolling argument and properly concluded that
Petitioner failed to show (1) diligent pursuant of his
rights, and (2) that some extraordinary circumstances stood
in his way (R&R, Dkt 3 atPagelD.60-63). See Holland
v. Florida, 560U.S. 631, 649 (2010) (citation omitted).
Petitioner presents no valid objection to the Magistrate
Judge's analysis or conclusion. Petitioner's alleged
extraordinary circumstances, " as the Magistrate Judge
noted, are not sufficient to toll the one-year statute of
limitations period (R&R, Dkt 3 at PageID.62).
Magistrate Judge properly denied Petitioner's habeas
petition as time-barred.
determined Petitioner's objections lack merit, the Court
must determine pursuant to 28 U.S.C. § 2253(c) whether
to grant a certificate of appealability (COA) 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 rulings
debatable as to each issue asserted. A certificate of
appealability will therefore be denied.
IT IS ORDERED that the Obj ections (Dkt 4) are DENIED and the
Report and Recommendation of the Magistrate Judge (Dkt 3) is
APPROVED and ADOPTED as the Opinion of the Court.
FURTHER ORDERED that the petition for habeas corpus relief
(Dkt 1) is DENIED for the reasons stated in the Report and
FURTHER ORDERED that a certificate of appealability pursuant
to 28 U.S.C. § 2253(c) is ...