United States District Court, W.D. Michigan, Northern Division
ORDER REGARDING REPORT AND RECOMMENDATION
ROBERT J. JONKER, J.
Court has reviewed Magistrate Judge Vermaat's Report and
Recommendation in this matter (ECF No. 11) and
Petitioner's Objection to it (ECF Nos. 12 & 13).
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 451 (3d ed. 2014).
Specifically, the Rules provide that:
The 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).
Magistrate Judge concluded that Petitioner's habeas
petition was untimely under AEDPA's one-year statute of
limitations. In brief, the Magistrate Judge observed that the
Michigan Supreme Court denied Petitioner leave to file an
appeal of his state court criminal case on September 5, 2014
and then denied Petitioner's motion for reconsideration
on September 29, 2014. The one-year limitations period began
to run on December 29, 2014, ninety days later. On September
26, 2015 (when there were 94 days remaining in the
limitations period) Petitioner filed a motion for relief from
judgment in the State trial court. The Magistrate Judge found
the statute of limitations was tolled while those proceedings
were pending, and that it began to run again after the
Michigan Supreme Court denied Petitioner's motion for
leave to appeal on December 27, 2017. The Magistrate Judge
concluded the 94 days expired on April 2, 2018, roughly eight
months before Petitioner filed his habeas petition. On that
basis, the Magistrate Judge recommended this Court dismiss
the habeas petition as time-barred.
Objection argues the statute of limitations was tolled again
on February 12, 2018 (before the statute had run) when the
trial court denied Petitioner the further relief he sought in
that court. Petitioner asserts he then pursued that denial to
the Michigan Supreme Court and that court subsequently denied
the motion on April 2, 2019. By then, however, he had filed
the instant habeas petition. All this is new information that
was not available to the Magistrate Judge. Petitioner should
have submitted it originally, but the Court is reluctant to
have a time-bar dismissal on what would amount to a
forfeiture theory, especially where Petitioner's initial
opportunity to address the Magistrate Judge's specific
concern arose after the Magistrate Judge spelled it out in
the Rule 4 Report and Recommendation.
respect to Petitioner's claim, it is plain that the mere
filing of additional post-conviction motions does not always
toll the statute of limitations. See, e.g., Williams v.
Birkett, 670 F.3d 729, 733 (6th Cir. 2012) (holding that
a second motion for relief from judgment that does not meet
the limited exceptions of Mich. Ct. R. 6.502(G)(1) is not
“properly filed” under Section 2244(d)(2) and
does not toll the statute of limitations). Here the grounds
for the trial court's February 12, 2018 denial is not
clear from the available record. This Court, however, has
received courtesy copies of the public records directly from
the State court relating to Petitioner's criminal case.
Those records reflect that on February 5, 2018 Petitioner
filed a motion for DNA testing and for a new trial under
Mich. Comp. Laws § 770.16. The trial court then denied
that motion in a February 12, 2018 Opinion and Order. The
question, then, is whether Defendant's motion for DNA
testing under Mich. Comp. Laws § 770.16 tolls
AEDPA's statute of limitations in Section 2244(d)(2). To
the Court's knowledge, no court has considered the issue
with respect to the Michigan statute.
courts that have considered other statutes have split on the
matter. Whether a state statute providing for post-conviction
DNA testing serves to toll the statute of limitations appears
to be highly dependent on the scope of available relief the
statute provides. Those statutes providing for discovery only
generally conclude that a post-conviction motion for DNA
testing does not toll the AEDPA statute of limitations.
See Brown v. Sec'y for the Dep't of Corr.,
530 F.3d 1335 (11th Cir. 2008); see also Woodward v.
Cline, 693 F.3d 1289 (10th Cir. 2012); Price v.
Pierce, 617 F.3d 947 (7th Cir. 2010). On the other hand,
where the discovery may ultimately result in judicial review
of the judgment based on the test results, courts have found
that a state statute does toll AEDPA's statute of
limitations. See Hutson v. Quarterman, 508 F.3d 236,
238-39 (5th Cir. 2007); McDonald v. Smith, 2003 WL
22284131 (E.D. N.Y. 2003), aff'd, 134 Fed.Appx.
466 (2d Cir. 2005) (“Motions pursuant to [New
York's DNA testing statute] are motions to vacate and,
therefore, challenge the conviction[.]”).
arguably is entitled to statutory tolling of the limitations
period during both the pendency of his first motion for
relief from judgment, and his motion for biological testing.
See 28 U.S.C. § 2244(d)(2). Based on the
undeveloped record of this case, the new information in
Petitioner's Objections, and the above authority, the
Court cannot concluded that “it plainly appears from
the face of the petition . . . that the petitioner is not
entitled to relief[.]” Rule 4, Rules Governing §
2254 Cases; see 28 U.S.C. § 2243. The Michigan
DNA statute may, or may not, serve to toll AEDPA's
statute of limitations. The Court is satisfied the parties
should have an opportunity to litigate the matter on a more
fully developed record. Given this decision, the Court need
not address at this time Petitioner's second objection
that his alleged actual innocence serves to excuse him from
the statute of limitations or whether a certificate of
appealability should issue.
IT IS ORDERED that Respondent shall file an answer
or other pleading with respect to the petition for a writ of
habeas corpus filed by the Petitioner herein within
one hundred eighty (180) days of the entry
of this Order. No extensions of time will be granted.
answer of the Respondent shall comply with the requirements
of Rule 5 of Rules Governing Section 2254 Cases in the United
States District Courts. Along with any other argument that
Respondent deems necessary, the Respondent shall address the
question of whether Petitioner is entitled to statutory
tolling of the AEDPA statute of limitations under Mich. Comp.
Laws § 770.16, including how that might affect any
exhaustion analysis. Respondent is further notified that the
failure to raise affirmative defenses in the first responsive
pleading may constitute a waiver of such defenses.
See Fed. R. Civ. P. 8(c). Petitioner may submit a
reply to the Respondent's answer within forty-two
(42) days after the answer is filed. Rule 5(e) of
Rules Governing Section 2254 Cases.
Clerk of the Court shall serve one copy of the petition and
amended petition, and this Order by regular mail on the
Respondent and one copy by certified mail on the Attorney
General of the State of Michigan.
IS FURTHER ORDERED that the Magistrate Judge's
Report and Recommendation (ECF No. 11) is
REJECTED in so far as it recommends