United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF UNITED STATES DISTRICT JUDGE.
isahabeas corpus petition filed pursuant to 28 U.S.C. §
2254. The matter was referred to the Magistrate Judge, who
issued a Report and Recommendation (R&R) recommending
that this Court deny the petition as time barred. The matter
is presently before the Court on Petitioner's objections
to the Report and Recommendation. In accordance with 28
U.S.C. § 636(b)(1) and FED. R. Civ. P. 72(b)(3), the
Court has performed de novo consideration of those portions
of the Report and Recommendation to which objections have
been made. The Court denies the objections and issues this
Opinion and Order. The Court will also issue a Judgment in
this § 2254 proceeding. See Gillis v. United
States, 729 F.3d 641, 643 (6th Cir. 2013) (requiring a
separate judgment in habeas proceedings).
argues that the Magistrate Judge erred in determining that
his petition is time barred by the statute of limitations
because he is entitled to equitable tolling (Pet'r Obj.,
ECF No. 6 at PageID.59; R&R, ECF No. 5 at PageID.49). As
properly stated by the Magistrate Judge, Petitioner's
one-year limitations period began running upon the expiration
of his time for seeking appellate review in the state courts,
under 28 U.S.C. § 2244(d)(1)(A) (ECF No. 5 at PageID.53).
The Magistrate Judge properly applied case law in concluding
that Petitioner's claim of entitlement to equitable
tolling does not revive the statute of limitations for
Petitioner's habeas corpus petition. This objection is
Petitioner argues that the Magistrate Judge erred in
determining that his petition is time barred by the statute
of limitations, because he claims actual innocence (Pet'r
Obj., ECF No. 6 at PageID.60; R&R, ECF No. 5 at
PageID.49). Petitioner presents no new evidence to the Court
in support of his claim of actual innocence. Instead,
Petitioner bases his claim upon repetition of his argument of
improper conviction based on his guilty plea to an
alternative charge. This argument has been considered by the
trial court, the Court of Appeals, and the Michigan Supreme
Court and denied by all three (ECF No. 5 at PageID.50). The
Supreme Court, in Schlup v. Delo, 513 U.S. 298
(1995), set out a very high standard for a showing of actual
innocence. Petitioner has failed to meet that standard by
offering no new, reliable evidence. Petitioner's argument
fails to demonstrate any factual or legal error in the
Magistrate Judge's analysis or conclusion. This objection
Magistrate Judge properly concluded that Petitioner's
claim is barred by the statute of limitations.
determined Petitioner's objections lack merit, the Court
must further determine pursuant to 28 U.S.C. § 2253(c)
whether to grant a certificate of appealability as to the
issues raised. See Rules Governing § 2254
Cases, Rule 11 (requiring the district court to "issue
or deny a certificate of appealability when it enters a final
order"). The Court must review the issues individually.
Slack v. McDaniel, 529 U.S. 473 (2000); Murphy
v. Ohio, 263 F.3d466, 466-67 (6th Cir. 2001).
the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling." Slack, 529
U.S. at 484. "Where a plain procedural bar is present
and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that
the district court erred in dismissing the petition or that
the petitioner should be allowed to proceed further."
Id. Upon review, this Court finds that reasonable
jurists would not find the Court's procedural ruling
debatable as to each issue asserted. A certificate of
appealability will therefore be denied. Accordingly:
IS HEREBY ORDERED that the Obj ections (ECF No. 6)
are DENIED and the Report and Recommendation of the
Magistrate Judge (ECF No. 5) is APPROVED and ADOPTED as the
Opinion of the Court, except as noted herein.
IS FURTHER ORDERED that the petition for habeas
corpus relief (ECF No. 1) is DENIED for the reasons stated in
the Report and Recommendation.
IS FURTHER ORDERED that a certificate of
appealability pursuant to 28 U.S.C. § 2253(c) is DENIED
as to each issue asserted.
It appears that there is a
typographical error in the Report and Recommendation, as
Petitioner had one year from September 15, 2011 (not
September 10, 2010) to file his habeas application, and this
one-year period expired in 2012 (not 2011) (see ECF
No. 5 at PageID.53). However, this error does not alter the
reasoning or conclusion, as ...