United States District Court, W.D. Michigan, Northern Division
MEMORANDUM OPINION AND ORDER
HOLMES BELL, UNITED STATES DISTRICT JUDGE.
a habeas corpus petition brought by a state prisoner under 28
U.S.C. § 2254. Respondent filed a motion to dismiss the
petition as untimely on June 23, 2016. (ECF No. 7.) The
matter was referred to Magistrate Judge Timothy Greeley, who
issued a Report and Recommendation (“R&R”) on
August 29, 2016, recommending that this Court deny
Respondent's motion to dismiss. (ECF No. 11.) The matter
is before the Court on Respondent's objections to the
R&R. (ECF No. 12.)
Court is required to make a de novo review upon the record of
those portions of the R&R to which specific objections
have been made, and may accept, reject, or modify any or all
of the magistrate judge's findings or recommendations. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see also
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)
(“[A] general objection to a magistrate's report,
which fails to specify the issues of contention, does not
satisfy the requirement that an objection be filed. The
objections must be clear enough to enable the district court
to discern those issues that are dispositive and
objects to the Magistrate Judge's finding that the State
did not develop the argument of a delayed application.
Respondent also objects to the Magistrate Judge's
calculation of the statute of limitations period. Respondent
argues that because Petitioner failed to properly file his
petition to the Michigan Court of Appeals, his limitations
period did not toll while the court considered his petition.
Respondent argues that the limitations period expired on May
21, 2015. Petitioner filed his petition on January 8, 2016.
Antiterrorism and Effective Death Penalty Act, 28 U.S.C.
§ 2244(d), provides that petitions must be filed within
the one-year statute of limitations period. The period
“shall run from the . . . date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review.”
Id. The period is tolled when a “properly
filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending.” Id.; see also Duncan v.
Walker, 533 U.S. 167, 169 (2001); Artuz v.
Bennett, 531 U.S. 4, 8 (2000) (defining “properly
filed”). The pendency of a state post-conviction motion
continues “until the expiration of the period for
further State court review, whether or not the petitioner
actually seeks such review.” Whitcomb v.
Smith, 23 Fed. App'x 271, 273 (6th Cir. 2001);
see also Carey v. Saffold, 536 U.S. 214, 220 (2002)
(concluding that tolling extended “until the
application has achieved final resolution through the
State's post-conviction procedures”).
conviction became final on December 31, 2013, and that is when
the one-year statute of limitations began. On March 19, 2014,
Petitioner filed a motion for relief from judgment. (ECF No.
11, PageID.656.) Because he timely filed the motion, the
limitations period was tolled until the Circuit Court issued
a decision on August 5, 2014. (Id.) Petitioner filed
an application for leave to appeal on October 28, 2014. (ECF
No. 8-12, PageID.614.) The Michigan Court of Appeals
dismissed the application for “failure to pursue the
case in conformity with the rules. MCR 7.201(B)(3).”
(Id. at PageID.611.) Petitioner did not properly
file this application, so it did not toll the statute of
limitations. See Paige v. Birkett, No.
05-CV-71917-DT, 2006 WL 273619, at *5 (E.D. Mich. Jan. 31,
2006) (citing Herbert v. Jones, 351 F.Supp.2d 674,
677 (E.D. Mich. 2005)). Petitioner had 6 months from August
6, 2014 to file a timely appeal to the Michigan Court of
Appeals, Mich. Ct. R. 7.205(G)(3), and the statute of
limitations was tolled during that time. Holbrook v.
Curtin, 833 F.3d 612, 619 (6th Cir. 2016). Thus, the
statute of limitations period expired on November 19,
2015. But Petitioner did not file his federal
habeas petition until January 8, 2016.
Respondent's motion to dismiss, she first argues that
Petitioner's application to the Michigan Court of Appeals
was not timely filed, so the statute of limitations was not
tolled. (ECF No. 7, PageID.87.) This Court believes that
Respondent adequately raised this argument in her motion to
dismiss. Petitioner did not timely file his habeas petition,
and he has not shown that he is entitled to statutory or
equitable tolling, nor has he alleged actual innocence.
Therefore, his petition is barred by the statute of
limitations. Accordingly, IT IS HEREBY ORDERED that
Respondent's objections to the R&R (ECF No. 12) are
FURTHER ORDERED that the R&R (ECF No. 11) is REJECTED.
FURTHER ORDERED that a certificate of appealability is
DENIED. 28 U.S.C. § 2253(c). Reasonable jurists would
not disagree with the Court's conclusion that the
petition is untimely. See Slack v. McDaniel, 529
U.S. 473, 483-84 (2000).
judgment will enter in accordance with this memorandum
opinion and order.