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McGowen v. MacLaren

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

March 15, 2017

Clint Allan McGowen, #625955, Petitioner,
v.
Duncan MacLaren, Respondent.

          ORDER REJECTING REPORT AND RECOMMENDATION

          HONORABLE PAUL L. MALONEY JUDGE

         In 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 PageID.5133.)

         Ultimately, 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.[1]

         a. Petitioner's First Objection

         Petitioner 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.

         Petitioner's “filed” his motion for relief from judgment in state circuit court on September 9, 2011, not on September 6, 2011 as he contends.

         It is 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.

         However, another rule and case law necessitate the same conclusion that Petitioner “filed” his motion on September 9, 2011.

         “Pleadings 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.

         “The 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).[2] 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.

         Petitioner's argument that Michigan Court Rule 2.107(C)(3) provides the date of service, and therefore filing, misses the mark.

         It is 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).

         Here, 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. 2.107(G).

         b. Petitioner's ...


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