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Nelson v. Campbell

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

March 13, 2017

RICKY NELSON, Petitioner,
v.
SHERMAN CAMPBELL, Respondent.

          OPINION AND ORDER RE REPORT AND RECOMMENDATION

          ROBERT J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE

         The 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).

         Specifically, 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 instructions.

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).

         The 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.

         Petitioner 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.

         The 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).

         The 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).[1]

         In his 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 trial.

         The 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).

         In this 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 about it.

         Despite 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.

         Finally, 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 ...


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