Opinion
FILE NO. 2:08-CV-211.
June 18, 2009
OPINION ADOPTING REPORT AND RECOMMENDATION
This is 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 (docket #3). The matter presently is before the Court on Petitioner's objections to the R R (docket #4).
This Court reviews de novo those portions of an R R to which specific objections are made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). See also U.S. Fidelity Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085, 1088 (6th Cir. 1992) (noting that a district court conducts de novo review of magistrate judge's rulings on dispositive motions); Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) ("[A] general objection to a magistrate's report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious."). The Court may accept, reject or modify any or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1).
The Magistrate Judge recommended that the petition be denied because it is barred by the statute of limitations. Petitioner raises three objections to the Magistrate Judge's recommendation. First, he contends that he was convicted before April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act, PUB. L. NO. 104-132, 110 STAT. 1214 (AEDPA), which first imposed the statute of limitations. See 28 U.S.C. § 2244(d)(1). Second, he asserts that, because he was in the hospital during the period in which he could have filed a direct appeal in the Michigan courts, it would be unfair to bar his habeas petition, too. Third, he asserts that he is actually innocent of the offense.
Petitioner's first objection is meritless. His conviction was not final until October 19, 1996, six months after the effective date of the AEDPA. As a consequence, no basis exists for contending that the statute has been retroactively applied to him. Moreover, the Sixth Circuit and the other federal circuits uniformly recognized that, because enactment of the statute could extinguish otherwise viable claims, there existed a one-year grace period from enactment of the statute on April 24, 1996. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir. 1999). The grace period ended on April 24, 1997. Bronaugh v. Ohio, 235 F.3d 280, 284-85 (6th Cir. 2000). Payton v. Brigano, 256 F.3d 405, 407 (6th Cir. 2001); Searcy v. Carter, 246 F.3d 515, 517 (6th Cir. 2001). Petitioner did not file his first state-court motion for relief from judgment until May 4, 2000, long after the expiration of his statute of limitations and the grace period. He did not file the instant habeas petition until an additional eight years had passed.
In his second objection, Petitioner appears to argue that his hospitalization during the time for filing an appeal in the state court should entitle him to equitable tolling of the statute of limitations. The one-year limitations period applicable to § 2254 is a statute of limitations subject to equitable tolling. See Dunlap v. United States, 250 F.3d 1001, 1007 (6th Cir. 2001) (holding that the one-year statute of limitations set forth in § 2254 and § 2255 are subject to equitable tolling). A petitioner bears the burden of showing that he is entitled to equitable tolling. See Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004); Jurado v. Burt, 337 F.3d 638, 642 (6th Cir. 2003); Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). The Sixth Circuit repeatedly has cautioned that equitable tolling should be applied "sparingly" by this Court. See Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006); Jurado, 337 F.3d at 642; Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002); Dunlap, 250 F.3d at 1008-09. A petitioner seeking equitable tolling of the habeas statute of limitations has the burden of establishing two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Lawrence, 549 U.S. at 335 (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Assuming that a period of hospitalization could provide a basis for concluding that an "extraordinary circumstance" impeded Petitioner's filing of his state-court appeal for some period, that circumstance occurred before Petitioner's habeas statute of limitations even began to run. Id. Petitioner indicates no impediment to his pursuit of his legal rights after the habeas limitations period began to run. Moreover, Petitioner falls far short of demonstrating the necessary diligence required for equitable tolling. Petitioner waited nearly four years after his conviction became final before filing his state-court motion for relief from judgment, and he waited eleven years after his statute of limitations expired to file a habeas petition. On this record, Petitioner cannot demonstrate diligence in the pursuit of his legal rights.
Petitioner's third objection — that he is actually innocent of the offense — is waived. Petitioner pleaded guilty in to the offense of unarmed robbery. A solemn declaration of guilt by the defendant carries a presumption of truthfulness. Blackledge v. Allison, 431 U.S. 63, 74 (1977). Moreover, although the Sixth Circuit has held that a habeas petitioner who demonstrates a credible claim of actual innocence based on new evidence may, in exceptional circumstances, be entitled to equitable tolling of habeas limitations, see McCray v. Vasbinder, 499 F.3d 568, 577 (6th Cir. 2007); Souter v. Jones, 395 F.3d 577, 597-98 (6th Cir. 2005), Petitioner fails to meet the standard for proving a claim of actual innocence. To support a claim of actual innocence, a petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Souter, 395 F.3d at 590, 598-99; Bousley v. United States, 523 U.S. 614, 623 (1998); Allen, 366 F.3d at 405. A valid claim of actual innocence requires a petitioner "to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness account, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). A petitioner "must produce evidence of innocence so strong that the court can not have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Allen, 366 F.3d at 405 (internal quotations and citations omitted). Petitioner has presented no new reliable evidence in support of his vague claim of actual innocence. Accordingly, Petitioner is not entitled to equitable tolling of the statute of limitations.
Having considered each of Petitioner's objections and finding no error, the Court hereby denies Petitioner's objections and adopts the Report and Recommendation of the Magistrate Judge as the opinion of the Court.
Under 28 U.S.C. § 2253(c)(2), the Court also must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner's claims under the Slack standard. Under Slack, 529 U.S. at 484, 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." Id. "A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of petitioner's claims. Id.
This Court denied Petitioner's application on the procedural grounds that it was barred by the statute of limitations. Under Slack, 529 U.S. at 484, when a habeas petition is denied on procedural grounds, a certificate of appealability may issue only "when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Both showings must be made to warrant the grant of a certificate. Id. The Court finds that reasonable jurists could not debate that this Court correctly dismissed each of Petitioner's claims on the procedural ground that the petition is barred by the statute of limitations. "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. Therefore, the Court denies Petitioner a certificate of appealability.
A Judgment consistent with this Opinion shall be entered.