United States District Court, W.D. Michigan, Southern Division
ORDER REJECTING REPORT AND RECOMMENDATION
HONORABLE PAUL L. MALONEY JUDGE
November 2016, the Magistrate Judge issued a report and
recommendation (ECF No. 46), which “recommend[ed]
[sua sponte] that the habeas corpus petition be
denied because it is barred by the one-year statute of
limitations.” (ECF No. 14 at PageID.5135.) The
Magistrate Judge correctly concluded that Petitioner's
“last day to timely file is habeas petition was Friday
August 16, 2013, ” but noted that he had not filed the
petition until August 19, 2013. (Id. at
the Court must reject the Report and Recommendation, but for
none of the objections Petitioner fully articulates: although
the petition was untimely, the State deliberately waived any
statute of limitations defense.
Petitioner's First Objection
first argues that the Magistrate Judge “relied on a
state court rule that does not apply, and failed to rely on
the rule that does apply.” (ECF No. 15 at PageID.5138.)
This first argument lacks merit.
“filed” his motion for relief from judgment in
state circuit court on September 9, 2011, not on September 6,
2011 as he contends.
true that the Magistrate Judge cited in a footnote to a rule
that pertains to the Michigan Court of Appeals in the context
of discussing Michigan state courts rejecting the mailbox
rule. (See ECF No. 14 at PageID.5132.) This Rule, as
Petitioner notes, does not apply to a motion for relief from
judgment in state circuit court.
another rule and case law necessitate the same conclusion
that Petitioner “filed” his motion on September
and other materials filed with the court as required by these
rules must be filed with the clerk of the court in accordance
with standards prescribed by MCR 1.109(C), except that the
judge to whom the case is assigned may accept materials for
filing when circumstances warrant. A Judge who does so shall
note the filing date on the materials and
immediately transmit them to the clerk . . . If the clerk
records the receipt of materials on a date other
than the filing date, the clerk shall record the
filing date on the register of actions.” Mich. Ct. R.
2.107(G) (emphasis added). Put simply, Rule 2.107(G)
“unambiguously requires that filing be with the court
clerk, or a judge, with permission, ” Walker-Bey v.
Dep't of Corr., 564 N.W.2d 171, 173 (Mich. Ct. App.
1997), and not merely the mailbox.
clerk of the court [must] endorse on the first page of every
document the date on which it is filed.” Mich.
Ct. R. 8.119(C) (emphasis added). Each document must
“meet . . . minimum filing requirements, ”
id., and “[a] clerk of court may reject
nonconforming documents.” Mich. Ct. R.
1.109(C)(4). Merely “mailing [a] complaint,
” or any document, “does not constitute
filing.” Biafore v. Baker, 326 N.W. 598, 599
(Mich. Ct. App. 1982) (collecting cases). Rather, “[a]
paper or document is filed when it is delivered to and
received by the proper officer to be kept on file, and the
endorsement of the officer with whom it is filed is but
evidence of the time of filing.” Id.
argument that Michigan Court Rule 2.107(C)(3) provides the
date of service, and therefore filing, misses the
true that under Michigan Court Rules,
“[s]ervice by mail is complete at the time of
mailing.” Mich. Ct. R. 2.107(C)(3) (emphasis added).
But the Rules specifically contemplate, for example, that
“[t]he proof of service may be included at the end of
the paper as filed.” Mich. Ct. R. 2.107(D).
Service is distinct from filing. The purpose of service is to
ensure that the other party or parties to the case have been
served with notice of the filing. The Court needs no separate
proof that it was served-the Clerk of Court performs that
function, and “[i]t is the responsibility of the party
who presented the materials to confirm that they have been
filed with the clerk.” Mich. Ct. R. 2.107(G).
the Michigan state court record, which this Court must defer
to, unambiguously reflects the motion for relief from
judgment was “filed” on September 9, 2011. (ECF
No. 11-1 at PageID.354.) The motion was not
“filed” within the meaning of the appropriate
Michigan Court Rules when Petitioner “mailed” the
motion in on September 6, 2011, even if he
“served” the State on that date. The petition was
unquestionably untimely. Accordingly, Petitioner's first
objection is OVERRULED. The Court modifies
the Report and Recommendation insofar as the correct state
court rules are referenced. See, e.g., Mich. Ct. R.