United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER OVERRULING OBJECTIONS AND ADOPTING
REPORT AND RECOMMENDATION
L. Maloney United States District Judge
matter is before the Court on Petitioner Anthony Dale
Lifer's objections to the Report and Recommendation
(R&R) issued by Magistrate Judge Ray Kent. (ECF No. 9.)
On March 6, 2017, Petitioner filed a habeas corpus petition
for relief from a state court decision under 28 U.S.C. §
2254. (ECF No. 1.) Petitioner was granted informa
pauperis status. (ECF No. 8.) The matter was referred to
the Magistrate Judge, who recommended the petition be denied
at time barred after a detailed explanation of the
appropriate tolling calculations. Put simply, “[t]he
period of limitation expired on January 19, 2017, ” but
Petitioner did not file his petition until March 3, 2017.
(ECF No. 9 at PageID.88.) Petitioner filed the instant
objections. (ECF No. 10.)
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), 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). 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).
novo review, habeas corpus petitions, such as this one, are
governed by the provisions of the Antiterrorism and Effective
Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214
(AEDPA). See Penry v. Johnson, 532 U.S. 782, 792
(2001). If a state court adjudicated the claim, deferential
AEDPA standards must be applied. 28 U.S.C. § 2254(d);
see Premo v. Moore, 562 U.S. 115, 121 (2011);
Waddington v. Sarausad, 555 U.S. 179, 190 (2009);
Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009)
((“[A]ny claim that was adjudicated on the merits in
State court proceedings' is subject to AEDPA
deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA
prevents federal habeas “retrials” and ensures
that state court convictions are given effect to the extent
possible under law. Bell v. Cone, 535 U.S. 685,
693-94 (2002). It prohibits “using federal habeas
corpus review as a vehicle to second-guess the reasonable
decisions of state courts.” Parker v.
Matthews, 132 S.Ct. 2148, 2149 (2012) (per curiam).
AEDPA standard is difficult to meet “because it was
meant to be.” Harrington v. Richter, 562 U.S.
86, 102 (2011). “Section 2254(d) reflects that habeas
corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error
corrections through appeal.” Id. at 102-03
(citation and internal quotation omitted); see Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015). Section 2254(d)
states that an application for a writ of habeas corpus on
behalf of a person who is incarcerated pursuant to a state
conviction cannot be granted with respect to any claim that
was adjudicated on the merits in state court unless the
adjudication “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision
that was based upon an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); see White v.
Wheeler, 136 S.Ct. 456, 460 (2015); Davis v.
Ayala, 135 S.Ct. at 2198; White v. Woodall, 134
S.Ct. 1697, 1702 (2014).
only definitive source of clearly established federal law for
purposes of § 2254(d)(1) is the holdings-not dicta-of
Supreme Court decisions. White v. Woodall, 134 S.Ct.
at 1702; see Woods v. Donald, 135 S.Ct. at 1377
(“Because none of our cases confront ‘the
specific question presented by this case, ' the state
court's decision could not be ‘contrary to' any
holding from this Court.”). “[W]here the precise
contours of a right remain unclear, state courts enjoy broad
discretion in their adjudication of a prisoner's
claims.” Id. (quotations and internal
offers three discernible objections, all of which lack merit.
Petitioner argues that since “he claimed in his Motion
for Relief from Judgment that he [sic] suffered from multiple
jurisdictional defects that have no time limits, ” his
petition under § 2254 cannot be time barred. That is not
accurate. While it is true that “[a]
defect cannot be waived or procedurally defaulted, ”
Goode v. United States, 305 F.3d 378, 386 (6th Cir.
2002), Petitioner's claim here remains time barred; the
Tenth Circuit explained why that is so in another case
raising similar claims:
Morales does not attack the district court's time
calculations under the statute but argues subject matter
jurisdiction can never be waived and therefore he can never
be barred from raising the issue. This argument is without
support in the law. In his state post-conviction proceedings,
Morales claimed the trial court lacked jurisdiction over his
crime and was denied relief. Insofar as the claim raises a
violation of state law, it is not cognizable in a federal
habeas action. Montez v. McKinna, 208 F.3d 862, 865
(10th Cir. 2000). Morales' claim is only cognizable in
federal habeas to the extent that it raises a violation of
the United States Constitution or federal law. See 28 U.S.C.
§ 2254(a). “Absence of jurisdiction in the
convicting court is indeed a basis for federal habeas corpus
relief cognizable under the due process clause.”
Yellowbear v. Wyo. Attorney Gen., 525 F.3d 921, 924
(10th Cir. 2008). Morales makes no argument to differentiate
this case from any other due process violation. As with any
other habeas claim, it is subject to dismissal for
untimeliness. See, e.g., United States v.
Patrick, 264 F. App'x 693, 694-95 (10th Cir. 2008)
(unpublished) (affirming district court's dismissal of
untimely habeas petition challenging convicting court's
jurisdiction); c.f. Gibson v. Klinger, 232 F.3d 799,
803, 808 (10th Cir. 2000) (affirming dismissal of due process
habeas claim as time barred under AEDPA).
v. Jones, 417 F. App'x 746, 749 (10th Cir. 2011).
Petitioner baldly argues he “raised meritorious issues
of his competence and a lack of evaluation and competency
hearing, the failure of Defense Counsel to represent him to
the point of abandonment, and the fact that Petitioner was
denied his statutory right to a polygraph examination to
prove his innocence which denied him an opportunity to
present a defense.” (ECF No. 10 at PageID.96.) But, he
does not rebut the Magistrate Judge's calculation that
all claims are time barred and does not argue for
equitable tolling. (See id.) Finally, Petitioner
asserts “an evidentiary hearing is necessary”;