Rhodes v. Bell

Filing 26

ORDER Adopting Report and Recommendation for 23 Report and Recommendation Denying Petitioner's Application for Writ of Habeas Corpus and Denying a Certificate of Appealability Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DENNIS RHODES,
Petitioner,

CASE NO. 07-14113
Hon. Lawrence P. Zatkoff

v.
THOMAS BELL,

Respondent,
________________________________________________/
OPINION AND ORDER ADOPTING MAGISTRATE
JUDGE'S REPORT AND RECOMMENDATION
Petitioner, a State of Michigan prisoner proceeding pro se, filed an application for the writ
of habeas corpus, alleging that he was denied effective assistance of counsel and a fair trial, in
violation of his Fifth, Sixth and Fourteenth Amendment rights. This matter is currently before the
Court on Magistrate Judge Paul J. Komives’ Report and Recommendation (Docket #23), wherein
the Magistrate Judge recommends that this Court deny both: (a) Petitioner’s application for the writ
of habeas corpus, and (b) a certificate of appealability. Petitioner timely filed objections to the
Report and Recommendation.
After a thorough review of the court file (including the parties’ motions and briefs), the
Report and Recommendation, and Petitioner’s objections to the Report and Recommendation, this
Court will adopt the Report and Recommendation and enter it as the findings and conclusions of this
Court. The Court will, however, briefly addresses Petitioner’s objections.
Petitioner argues that the Magistrate Judge erred in concluding that Petitioner’s petition is
procedurally barred pursuant to Michigan Court Rule(“MCR”) 6.508(D)(3). Petitioner contends that
Respondent waived this defense when he failed to assert it as an affirmative defense when filing his
initial responsive pleading to Petitioner’s application for writ of habeas corpus. Relying on the Sixth
Circuit’s decision in Scott v. Collins, 286 F.3d 923, 930-31 (6th Cir. 2002), Petitioner thus argues
that the Magistrate Judge erred by sua sponte recommending that the Court dismiss the petition sua
sponte. The Court does not find Petitioner’s objections persuasive.

First, Respondent’s initial responsive pleading was a motion for summary judgment based
on the application being time-barred, an argument this Court found persuasive in dismissing
Petitioner’s petition. Upon the Sixth Circuit remanding the case and the Magistrate Judge directing
Respondent to respond, Respondent filed a second motion for summary judgment, this time based
on the argument that Petitioner’s petition is procedurally barred pursuant to MCR 6.508(D)(3). As
such, Respondent raised the MCR 6.508(D)(3) defense; it was not raised by the Magistrate Judge
sua sponte.
Second, the Court finds that Respondent’s reliance on Scott v. Collins is misplaced, as that
case was abrogated (overruled) by the U.S. Supreme Court in 2006. See Day v. McDonough, 547
U.S. 198, 209 (2006). Moreover, as the Day opinion clearly explains, courts may, on their own
initiative, raise a petitioner’s procedural default; in fact, a court of appeals can do so even if the State
failed to raise the defense at any time before the district court. Id. at 206; Sowell v. Bradshaw, 372
F.3d 821, 830 (6th Cir. 2004). See also Caspari v. Bohlen, 510 U.S. 383 (1994); Granberry v.
Greer, 481 U.S. 129 (1987). Accordingly, the Court concludes that the well-established law
provides that: (1) Respondent was not precluded from raising in its second motion for summary
judgment before this Court that Petitioner’s petition is procedurally barred pursuant to MCR
6.508(D)(3), and (2) this Court is not precluded from finding that Petitioner’s petition is
procedurally barred pursuant to MCR 6.508(D)(3), even though Respondent did not raise the
procedural bar defense in his initial motion for summary judgment.
Therefore, for the reasons stated above, the Court hereby ORDERS that Petitioner’s
application for the writ of habeas corpus is DENIED and this cause of action is DISMISSED WITH
PREJUDICE. In addition, the Court DENIES a certificate of appealability with respect to all of the
claims raised in Petitioner’s petition. Judgment shall be entered accordingly.

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IT IS SO ORDERED.
S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: May 31, 2011
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of record
by electronic or U.S. mail on May 31, 2011.
S/Marie E. Verlinde
Case Manager
[phone]

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