United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER RE REPORT AND
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
Court has reviewed Magistrate Judge Green's Report and
Recommendation in this matter (ECF No. 3) and Petitioner
Nelson's Objection to the Report and Recommendation (ECF
No. 4). Under the Federal Rules of Civil Procedure, where, as
here, a party has objected to portions of a Report and
Recommendation, “[t]he district judge . . . has a duty
to reject the magistrate judge's recommendation unless,
on de novo reconsideration, he or she finds it
justified.” 12 Wright, Miller, & Marcus, Federal
Practice and Procedure § 3070.2, at 381 (2d ed. 1997).
the Rules provide that:
The district judge to whom the case is assigned shall make a
de novo determination upon the record, or after additional
evidence, of any portion of the magistrate judge's
disposition to which specific written objection has been made
in accordance with this rule. The district judge may accept,
reject, or modify the recommended decision, receive further
evidence, or recommit the matter to the magistrate judge with
Fed R. Civ. P. 72(b). De novo review in these circumstances
requires at least a review of the evidence before the
Magistrate Judge. Hill v. Duriron Co., 656 F.2d
1208, 1215 (6th Cir. 1981).
Court has reviewed de novo the claims and evidence
presented to the Magistrate Judge; the Report and
Recommendation itself; and Petitioner's objection. The
Court has also reviewed the entire record of the case.
seeks habeas relief based on alleged violations of his Sixth
and Fourteenth Amendment right to effective assistance of
counsel. Specifically, Petitioner claims that “his
trial lawyer failed to convey a plea deal to defendant prior
to trial.” (ECF No. 1, PageID.6). Petitioner wrote his
trial judge sometime in 2014 with a general request for any
information that might entitle him to post-conviction relief.
Id. In response, the trial judge informed Petitioner
of a plea deal that Petitioner alleges his defense counsel
never disclosed to him. Id.
Report and Recommendation recommends dismissing Nelson's
petition on the basis that the one-year statute of
limitations in the Antiterrorism and Effective Death Penalty
Act of 1996, 28 U.S.C. § 2244(d) (1996),
(“AEDPA”) bars his claim because the exceptions
set forth in Sections 2244(d)(1)(A) and (D) are inapplicable
and Petitioner is not entitled to equitable tolling of his
claim (ECF No. 3). Petitioner has made a timely pro
se objection to the dismissal in quite general terms,
arguing that equity counsels against dismissal of his claim
(ECF No. 4).
Court agrees with the Magistrate Judge that the exception
delineated in Section 2244(d)(1)(A) does not help Petitioner.
Under that provision, the one-year statute of limitations
runs 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.” 28 U.S.C. §
2244(d)(1)(A). Petitioner appealed his conviction to the
Michigan Court of Appeals and the Michigan Supreme Court. The
Michigan Supreme Court denied his application on October 30,
2000. Petitioner did not seek review with the United States
Supreme Court, and the ninety-day period in which Petitioner
could have sought review expired on January 29, 2001.
Therefore, Petitioner had until January 29, 2002, in which to
file his habeas application. Petitioner filed the instant
petition on December 16, 2016. Accordingly, this Court agrees
with the Magistrate Judge that Petitioner's claim is
time-barred under Section 2244(d)(1)(A).
pro se petition, however, Petitioner argues for
equitable tolling to avoid the statute of limitations bar to
his habeas petition. Petitioner claims he did not know the
basis for his claim until 2014, when he discovered that his
defense counsel failed to convey a plea offer to him prior to
Court credits Petitioner's objection on this point and
respectfully disagrees with the Magistrate Judge's
recommendation. Nelson's argument that his inability to
obtain the information regarding the plea offer should
equitably toll the statute of limitations falls under the
exception in Section 2244(d)(1)(D) for belated discovery
despite the exercise of due diligence. That provision states:
“The limitations period shall run from the latest of .
. . 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)(D). To succeed under this exception, Nelson must
establish that he exercised due diligence and that the
evidence withheld “would have been controlling in the
decision whether to plead.” United States v.
Ross, 245 F.3d 577, 584 n.1 (6th Cir. 2001) (quoting
Campbell v. Marshall, 769 F.2d 314, 324 (6th Cir.
1985)). Additionally, a petitioner is entitled to equitable
tolling under this subsection “when a movant untimely
files because of extraordinary circumstances that are both
beyond his control and unavoidable even with
diligence.” Sandvik v. United States, 177 F.3d
1269, 1271 (11th Cir. 1999).
case, the fact that the trial judge, or anyone for that
matter, failed to notify Nelson of the existence of the plea
offer was certainly beyond his control. It is understandable
that Nelson did not inquire concerning possible plea offers
earlier because he had no reason to suspect any such offer
existed; he had every reason to believe his defense counsel
would convey information regarding the existence of such an
offer to him prior to trial; and he reasonably believed that
counsel assisting him throughout the post-conviction phase
would investigate this issue and convey the results of the
investigation to him. Yet, throughout this entire time
period, no one informed Nelson regarding the existence of a
plea offer or his defense counsel's failure to inform him
the lack of this information, Nelson, as a pro se
imprisoned defendant, exercised diligence in seeking
post-conviction relief. Petitioner filed two postconviction
motions for relief from judgment, in 2003 and 2015. He
appealed the trial courts' decisions in both of these
motions to the Court of Appeals and the Michigan Supreme
Court. Finally, on his own initiative, Nelson contacted the
judge who presided over his trial in 2014-probably as
last-resort-to obtain post-conviction relief.
the information ultimately obtained by Nelson would have been
controlling in his decision whether to plead. After all, the
evidence in this case was the existence of the plea offer
itself, without which Nelson was unable to plead, and the
existence of ...