United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge
September 13, 2016, the Magistrate Judge issued a report and
recommendation (ECF No. 6), which “recommend[ed] that
the habeas corpus petition be denied because it is barred by
the one-year statute of limitations.” (Id. at
Statement of Facts
takes no issue with the factual timeline that the Magistrate
Judge lays out. Since Petitioner only lodges objections that,
at most, insufficiently sound in equitable tolling, the Court
ADOPTS the Magistrate Judge's report.
(ECF No. 6.)
respect to a dispositive motion, a magistrate judge issues a
report and recommendation, rather than an order. After being
served with a report and recommendation (R&R) issued by a
magistrate judge, a party has fourteen days to file written
objections to the proposed findings and recommendations. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). A district court
judge reviews de novo the portions of the R&R to which
objections have been filed. 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). Only those objections that are specific
are entitled to a de novo review under the statute. Mira
v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam) (holding the district court need not provide de novo
review where the objections are frivolous, conclusive or too
general because the burden is on the parties to
“pinpoint those portions of the magistrate's report
that the district court must specifically consider”).
Failure to file an objection results in a waiver of the issue
and the issue cannot be appealed. United States v.
Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); see
also Thomas v. Arn, 474 U.S. 140, 155 (upholding the
Sixth Circuit's practice). The district court judge may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b).
asserts that he is entitled to equitable tolling on his
“actual innocence claim” because his constitutional
rights were violated, under double jeopardy, when he was
convicted of assault with intent to rob while armed
and armed robbery. (ECF No. 7 at PageID.64.) This
double-jeopardy claim is the same basis for Petitioner's
four objections to the Magistrate Judge's report and
recommendation. (Id. at PageID.64-66.) However, the
Court will note that Petitioner's arguments have already
been directly refuted by the Magistrate Judge, and the
objections do not “pinpoint those portions of the
magistrate's report that the district court must
specifically consider.” Mira v. Marshall, 806
F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the
district court need not provide de novo review where the
objections are too general).
one-year statute of limitations period runs from the latest
of several periods. See 28 U.S.C. § 2244(d). In
this case, Petitioner was sentenced on May 21, 2010 and had
one year, until May 21, 2011, to file a delayed application
for leave to appeal in the Michigan Court of Appeals.
See Mich. Ct. R. 7.205(F)(3). Since Petitioner
failed to timely appeal to the Michigan Court of Appeals, his
conviction became final when his time for seeking review with
that court expired. See Williams v. Birkett, 670
F.3d 729, 731 (6th Cir. 2012) (holding that a defendant's
conviction became final when the time for seeking review
under Mich. Ct. R. 7.205(F)(3) expired). Therefore,
Petitioner had one year, from May 21, 2011 until May 21,
2012, to file his habeas application. The subsequent state
collateral review filing in 2014 does not renew the
limitations period; it could only serve to toll, or pause, a
clock that has not yet expired. Payton v. Brigano,
256 F.3d 405, 408 (6th Cir. 2001). He filed his petition on
July 5, 2016, over four years after the time to file expired.
Thus, Petitioner's application is time-barred.
petitioner seeking equitable tolling of the habeas statute of
limitations has the burden of establishing two elements:
“(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his
way.” Holland v. Florida, 560 U.S. 631, 649
(2010) (citing Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005)). Petitioner alleges that he did not file a direct
appeal based on the erroneous advice of his appellate
counsel. “Tolling based on counsel's failure to
satisfy [habeas] statute of limitations is available only for
‘serious instances of attorney misconduct.'”
Christeson v. Roper, 135 S.Ct. 891, 894 (2015)
(quoting Holland, 560 U.S. at 651-52). Even if the
Court could consider his counsel's advice constituted
serious misconduct, Petitioner provides no explanation for
his four-year delay in filing a motion for relief from
judgment. As a result, this Court cannot find that Petitioner
has been pursuing his rights diligently. See Keeling v.
Warden, 673 F.3d 452, 463-64 (6th Cir. 2012) (the
petitioner was not entitled to equitable tolling
notwithstanding his attorney's failure to notify him that
the appellate court had affirmed his conviction, thereby
triggering the statute of limitations, because the petitioner
waited three years before taking any action); Robinson v.
Easterling, 424 F. App'x 439, 443 (6th Cir. 2011)
(holding that a petitioner who waited 18 months to take
action had not been sufficiently diligent). Therefore,
Petitioner is not entitled to equitable tolling of the
statute of limitations.
habeas petitioner can show actual innocence under the
stringent standard in Schlup v. Delo, 513 U.S. 298
(1995), then he may be excused from the statute of
limitations time bar under the miscarriage-of-justice
exception. McQuiggin v. Perkins, 133 S.Ct. 1924,
1931-32 (2013). Under the actual innocence exception, a
petitioner must present new evidence showing that
“‘it is more likely than not that no reasonable
juror would have convicted [the petitioner].'”
McQuiggin, 133 S.Ct. at 1935 (quoting
Schlup, 513 U.S. at 329 (addressing actual innocence
as an exception to procedural default)). Since this standard
is an exception and not a basis for equitable tolling, a
petitioner does not need to show reasonable diligence in
bringing the claim; however, a court may consider timing
while determining the credibility of the evidence of actual
innocence. McQuiggin, 133 S.Ct. at 1936.
here, pleaded to the charges and was convicted, but now
baldly asserts that he is “innocent” of the
assault charge because it is the same as the robbery charge.
(ECF No. 7 at PageID.64-65.) In order to state an actual
innocence claim, a petitioner must “support his
allegations of constitutional error with new reliable
evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence-that was not presented at trial.”
Schlup, 513 U.S. at 324. As stated in the Magistrate
Judge's report and recommendation (ECF No. 6 at
PageID.61-62), Petitioner's present assertion that his
convictions violate the Double Jeopardy doctrine is not the
same as asserting factual innocence. There is no new reliable
evidence offered demonstrating that Petitioner is innocent of
the assault charge. Thus, he has failed to show actual
innocence under the Schlup standard, and his
petition is not excused from the statute of limitations.
See 28 U.S.C. § 2244(d)(1). Therefore,
Petitioner's habeas petition is time-barred.
Court OVERRULES Petitioner's objections
as waived and in any event, non-meritorious. (ECF No. 7.) The
Report and Recommendation is ADOPTED in ...