United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF UNITED STATES DISTRICT JUDGE
a habeas 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 (ECF No. 6).
The matter is presently before the Court on Petitioner's
objections to the Report and Recommendation (ECF No. 7). 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).
Objections to Orders
asserts objections to the Magistrate Judge's orders
denying his motion to appoint counsel and granting leave to
proceed in forma pauperis, entered the same day as the Report
and Recommendation. Although such objections do not affect
the Report and Recommendation analysis or time-bar
conclusion, the Court briefly addresses these matters.
objects to the order granting him leave to proceed in forma
pauperis (ECF No. 4). He states that he authorized
disbursement of the $5.00 filing fee, to be paid from his
prison account, as shown on the disbursement authorization
form (ECF No. 7-1), and he asks the Court to correct the
record to reflect that he paid the $5 filing fee. The Court
has reviewed the docket in this case and Petitioner's
prior habeas case (Case No. 1:14-cv-1010 (W.D. Mich.)) and
finds no record of the filing fee being paid. The Court notes
that the disbursement authorization provided by Petitioner
has the case number of the prior case, and requests payment
to the "State of Michigan, not this Court (ECF No. 7 at
PageID.267). Nonetheless, an extensive search by the Court
Clerk's office found no payment of the $5.00 filing fee
for this case and no record of a disbursement of the $5.00
fee by the Michigan Department of Corrections to the Court on
Petitioner's behalf. Thus, the Court finds no basis for
altering the record, and this objection is denied.
objects to the denial of his motion to appoint counsel. The
Magistrate Judge properly applied the governing law and
concluded that the assistance of counsel did not appear
necessary to the proper presentation of Petitioner's
position. Petitioner provides no circumstances that undermine
Report and Recommendation Objection
asserts that the Report and Recommendation is "with
error and unfactual" because of misleading statements
concerning sentencing, his due process rights to access the
courts, and other constitutional issues raised in his
Petition, and he objects to the conclusion that his Petition
is time-barred (Pet'r Obj., ECF No. 7 at PageID.259).
Petitioner cites the Opinion filed in his prior petition for
a writ of habeas corpus (1:14-cv-1010, ECF No. 4) in support
of his "assumption" that he "would not be in
jepordy [sic] of being time barred" if he filed a motion
for relief from judgment in the state court to exhaust
certain claims (ECF No. 7 at PageID.259). However, the
Opinion clearly stated "absent tolling, Petitioner would
have one year, until March 23, 2015, in
which to file his habeas petition" (1:14-cv-1010, ECF
No. 4 at PageID.274, emphasis added). The Opinion stated
Petitioner has more than sixty days remaining in this
limitations period. Assuming that Petitioner diligently
pursues his state-court remedies and promptly returns to this
Court after the Michigan Supreme Court issues its decision he
is not in danger of running afoul of the statute of
limitations. Therefore a stay of these proceedings is not
warranted. Should Petitioner decide not to pursue his
unexhausted claims in the state courts, he may file a new
petition raising only exhausted claims at any time before
the expiration of the limitations period (id. at
274-275, emphasis added).
assumption provides no basis for avoiding the time-bar under
the statute of limitations.
references equitable tolling and states that it may be
grounds for a viable action even after the statute of
limitations has expired (ECF No.7 at PageID.261). However,
Petitioner asserts no grounds to support equitable tolling,
which as noted in the Report and Recommendation should be
applied "sparingly" (see ECF No. 6 at
PageID.251). Petitioner fails to demonstrate any factual or
legal error in the Magistrate Judge's analysis or
conclusion. This objection is denied.
Certificate of Appealability
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.3d 466, 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 ...