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Merithew v. Klee

United States District Court, W.D. Michigan, Southern Division

November 28, 2016

JEREMY SCOTT MERITHEW, Petitioner,
v.
PAUL KLEE, Respondent.

          OPINION

          ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

         This is a habeas corpus petition brought by a state prisoner under 28 U.S.C. § 2254. The matter was referred to Magistrate Judge Ray Kent, who issued a Report and Recommendation (“R&R”) on September 21, 2016, recommending that this Court deny the petition because it is barred by the one-year statute of limitations. (ECF No. 2.) The matter is before the Court on Petitioner's objections to the R&R. (ECF No. 3.)

         This 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 contentious.”).

         Petitioner objects to the Magistrate Judge's conclusion that his petition is time-barred because he can demonstrate actual innocence under Schlup v. Delo, 513 U.S. 298 (1995). Petitioner argues that he is excused from the statute of limitations under the miscarriage-of-justice exception. Petitioner claims that he has new evidence that proves his innocence.

         I.

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides:

(1) 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;
(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;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). The statute of limitations tolls when “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2); see also Duncan v. Walker, 533 U.S. 167, 181-82 (2001); Artuz v. Bennett, 531 U.S. 4, 8 (2000). Where a petitioner has failed to properly pursue an avenue of appellate review available to him, the time for seeking review at that level is counted under § 2244(d)(1)(A).

         A plea of actual innocence, under the fundamental miscarriage-of-justice exception, can overcome AEDPA's statute-of-limitations bar. McQuiggin v. Perkins, 133 S.Ct. 1924, 1926 (2013). “Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup v. Delo, 513 U.S. 298 (1995) and House v. Bell, 547 U.S. 518 (2006), or expiration of the AEDPA statute of limitations[.]” Id. The Supreme Court has applied Schlup's “demanding” actual-innocence standard to determine whether a petitioner is entitled to this gateway. Id. at 1936. Schlup requires a petitioner to present newly-discovered “‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.'” McQuiggin, 133 S.Ct. at 1936 (quoting Schlup, 513 U.S. at 316). In other words, a petitioner must present new evidence showing that “‘it is more likely than not ...


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