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Rose v. Nagy

United States District Court, W.D. Michigan, Southern Division

April 30, 2019

JASON RICHARD ROSE, Petitioner,
v.
NOAH NAGY, Respondent.

          ORDER REGARDING REPORT AND RECOMMENDATION

          ROBERT J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE.

         The Court has reviewed the Magistrate Judge's Report and Recommendation (ECF No. 4) and Petitioner's Objection to it. (ECF No. 5). Under the Federal Rules of Civil Procedure, where, as here, a party has objected to portions of a Report and Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge's recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 Wright, Miller, & Marcus, Federal Practice and Procedure § 3070.2, at 381 (2d ed. 1997). Specifically, the Rules provide that:

[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Fed R. Civ. P. 72(b)(3). De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the Report and Recommendation itself; and Petitioner's objections. The Magistrate Judge recommends that the petition be denied because it is barred by the one-year statute of limitations. The Magistrate also recommends denying Petitioner a certificate of appealability. After its review, the Court agrees that the statute of limitations may have run before Petitioner filed the motion for relief from judgment in the State Court. However, the Court is satisfied that Petitioner has raised sufficient questions about the State Court record to warrant additional investigation. The limitations periods may not have run at all. And even if it did, there may be a basis for equitable tolling. Additional factual development will assist in making a final determination.

         1. Motion to Transfer

         The Court first considers the pending letter request, docketed by the Clerk as a motion to transfer the case to the Eastern District of Michigan. (ECF No. 3). In the letter, Petitioner states that his petition was assigned to the wrong district, and he requests that the Court transfer the matter to the Eastern District of Michigan. Petitioner contends his “whole world relies on winning this appeal in the” Eastern District, and that he has “no chance whatsoever in the” Western District. (ECF No. 3, PageID.161).

         Venue for a habeas petition brought under § 2254 is set out in 28 U.S.C. § 2241(d), which provides:

Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.

28 U.S.C. § 2241(d).

         The record reflects that Petitioner was convicted in the Oakland County Circuit Court, which is located in the Eastern District. See Petition (ECF No. 1). When he filed the petition, Petitioner was incarcerated at the Lakeland Correctional Facility, id., where he currently resides. See Offender Tracking Information, Michigan Department of Corrections, https://mdocweb.state.mi.us/otis2/otis2.html (last visited Apr. 17, 2019). The Lakeland Correctional Facility is located in the Western District. Accordingly, jurisdiction is properly before this Court under § 2241(d).

         The change of venue provisions are set out in 28 U.S.C. § 1404(a), which provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” Id. The Court observes that the petition in this case lists “Eastern” in the blank provided for the district in which the petition was to be brought. While the envelope through which Petitioner mailed this petition is not a part of the record, the only way that the petition could have made its way to this Court is if Petitioner mailed his petition to an address for the Western District of Michigan. Petitioner's present subjective belief that he has a better chance of succeeding if his case was heard in the Eastern District is not enough to show that the convenience of the parties, the convenience of the witnesses or the interest of justice requires transfer of this action.

         Accordingly the Court declines, in its discretion, to transfer this case to the Eastern District.

         2. Petitioner's Objection

         Turning to the specifics of Petitioner's objection, the Court concludes that additional factual development will allow for a better decision on the limitations question, including the possibility of equitable tolling. Petitioner has raised questions about exactly what happened on the State Court record. At this early stage of the proceeding, all the Court can do is try its best to sort out potential discrepancies without the benefit of a certified state court record. Obtaining the record will permit development of a better basis for ...


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