United States District Court, W.D. Michigan, Southern Division
MICHAEL L. JOHNSON, Petitioner,
TONY TRIERWEILER, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
J. QUIST UNITED STATES DISTRICT JUDGE
a habeas corpus action brought by Michael Johnson, a state
prisoner, under 28 U.S.C. § 2254. Following initial
review, Magistrate Judge Ray Kent issued a Report and
Recommendation (R & R), recommending that the Court
dismiss Johnson's petition as time-barred under 28 U.S.C.
§ 2244(d). (ECF No. 5.) Johnson objected to the R &
R, arguing that his petition was timely due to newly
discovered evidence “resetting” the one-year
statutory limit. (ECF No. 6.) Having reviewed the R & R
and Johnson's objections, the Court will adopt the R
& R and dismiss Johnson's petition.
Federal Rule of Civil Procedure 72(b), a party “may
serve and file specific written objections” to the R
& R, and the Court is to consider any proper objection.
Local Rule 72.3(b) likewise requires that written objections
“shall specifically identify the portions” of the
R & R to which a party objects. Under 28 U.S.C. §
636(b), upon receiving objections to a report and
recommendation, the district judge “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” After conducting a de novo review
of the R & R, Johnson's objections and the pertinent
portions of the record, the Court concludes that the R &
R should be adopted.
& R thoroughly addressed the possible limitations period
and tolling options for Johnson's habeas petition, such
as the initial period after his appeals in the Michigan state
courts- that period had run by July 20, 2005. The R & R
concluded that Johnson, who filed the petition April 25,
2018, did not have a viable reason to avoid the statute of
limitations. Johnson offers no practical counter to many of
these findings, and the Court need not address them.
crux of Johnson's argument is that newly discovered
evidence reset the limitations period. The purported newly
discovered evidence is comprised of four signed affidavits
that Johnson claims support his alibi defense, i.e.,
that he was with his ailing grandmother at her house in
Muskegon Heights from December 26, 2001, to the end of
January 2002-during the time the robbery occurred in
succeed on his newly discovered evidence argument, Johnson
would have to show that he was not aware of the evidence
until he acquired the affidavits in June 2015. “[I]t is
the actual or putative knowledge of the pertinent facts of a
claim that starts the clock running on the date on which the
factual predicate of the claim could have been discovered
through due diligence, and the running of the limitations
period does not await the collection of evidence which
supports the facts, including supporting affidavits.”
Redmond v. Jackson, 295 F.Supp.2d 767, 772 (E.D.
Mich. 2003). “The question under the provision is not
when the prisoners first learned of the new evidence; it is
when they should have learned of the new evidence had they
exercised reasonable care.” Townsend v.
Lafler, 99 Fed.Appx. 606, 608 (6th Cir. 2004). So,
Johnson would have to show that he did not know that these
individuals saw him in his grandmother's house back in
December 2001 through January 2002, and that he could not
reasonably have known this until the summer of 2015. If
Johnson was in the house with these individuals, he certainly
would have known.
argues in his Objection that he first became aware of the
facts in the affidavits on August 20, 2015. Johnson cites his
incarceration as the reason he “could not secure the
affidavits himself.” Johnson asserts that it was not
until his uncle, Ivy Spears, moved to Muskegon in 2015 that
someone was able to investigate witnesses and acquire the
affidavits; his sister Joy Johnson, a New York resident, also
drove to Atlanta, Georgia to acquire an affidavit as well.
Johnson offers no rationale for why these four affiants saw
him in his grandmother's house, but Johnson himself did
not know that they saw him there until 2015. Johnson does
submit he had difficulty finding the identity of his
grandmother's homecare nurse, one of the affiants, but
“the running of the limitations period does not await
the collection of evidence which supports the facts,
including supporting affidavits.” Redmond, 295
F.Supp.2d at 772. As the R & R noted, “Section
2244(d)(1)(D) ‘does not convey a statutory right to an
extended delay while a petitioner gathers every possible
scrap of evidence that might support his claim.'”
(ECF No. 5 at PageID.322 (quoting id.).) Johnson has
not shown that the R & R's conclusions are incorrect.
28 U.S.C. § 2253(c)(2), the Court must determine whether
a certificate of appealability should be granted. A
certificate should issue if Johnson has demonstrated a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit
has disapproved issuance of blanket denials of a certificate
of appealability. Murphy v. Ohio, 263 F.3d 466, 467
(6th Cir. 2001). Rather, the district court must
“engage in a reasoned assessment of each claim”
to determine whether a certificate is warranted. Id.
at 467. Each issue must be considered under the standards set
forth by the Supreme Court in Slack v. McDaniel, 529
U.S. 473, 120 S.Ct. 1595 (2000). Murphy, 263 F.3d at
467. Consequently, this Court has examined each of
Johnson's claims under the Slack standard.
Slack, 529 U.S. at 484, 120 S.Ct. at 1604, to
warrant a grant of the certificate, “[t]he petitioner
must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” The Court finds that reasonable
jurists could not find that this Court's dismissal of
Johnson's claims was debatable or wrong. Therefore, the
Court will deny Johnson a certificate of appealability.
IT IS HEREBY ORDERED that the Magistrate
Judge's Report and Recommendation (ECF No. 5) is
APPROVED AND ADOPTED as the Opinion of this
Court, and Petitioner's Objection (ECF No. 6) is
IS FURTHER ORDERED that, for the reasons set forth
in the R & R, a Certificate of ...