Hill v. Curtin

Filing 15

ORDER Adopting 10 Report and Recommendation, and Denying 13 Motion to Amend; Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS HILL,
Petitioner,
Case No. 10-13436
v.
CINDI CURTIN,

Hon. John Corbett O’Meara
Hon. Paul J. Komives

Respondent.
____________________/

ORDER ADOPTING REPORT AND RECOMMENDATION
AND DENYING PETITIONER’S MOTION TO AMEND
Before the court is Magistrate Judge Paul J. Komives’s report and recommendation, filed
August 29, 2012. Magistrate Judge Komives recommends that the court deny petitioner’s
application for writ of habeas corpus and a certificate of appealability. Petitioner filed a
response to the report and recommendation on September 14, 2012, and an amended response on
October 2, 2012.
In his response, Petitioner seeks to amend his petition to include a claim of ineffective
assistance of trial and appellate counsel and a claim that there was insufficient evidence to
support his conviction for armed robbery. These claims were not raised on direct appeal or in
the original habeas petition.
Pursuant to 28 U.S.C. § 2242, a habeas petition may be amended “as provided in the
rules of procedure applicable to civil actions,” that is, as provided in Federal Rule of Civil
Procedure 15. However, a new claim for habeas relief raised in a motion to amend is subject to
the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). Howard v. U.S., 533 F.3d

472, 475 (6th Cir. 2008). Therefore, a motion to amend must be denied in a habeas case when it
is filed after the expiration of the limitations period, unless the proposed amendment relates back
to the date of the original pleading. Id. Rule 15 provides that an amendment relates back when
“the amendment asserts a claim or defense that arose out of the conduct, transaction, or
occurrence set out – or attempted to be set out – in the original pleading.” Fed. R. Civ. P.
15(c)(1)(B). In the context of a habeas petition, the Supreme Court has held that relation back is
permitted “only when the claims added by amendment arise from the same core facts as the
timely filed claims, and not when the new claims depend on events separate in ‘both time and
type’ from the originally raised episodes.” Mayle v. Felix, 545 U.S. 644, 657 (2005). The Sixth
Circuit construes Mayle as requiring the denial of a motion to amend a habeas petition when the
new claim “asserts a new ground for relief supported by facts that differ from those in the
original petition.” Pinchon v. Myers, 615 F.3d 631, 642 (6th Cir. 2010).
Petitioner’s original petition contained three claims: that he was denied his right to selfrepresentation; that he was denied his right to confrontation/cross-examination; and that he was
denied the right to put on a defense. The claims that Petitioner seeks to add – ineffective
assistance of trial and appellate counsel and sufficiency of the evidence – do not arise from the
same core facts as the original claims. Accordingly, these claims do not relate back to the
original petition and are time-barred. The court will deny Petitioner’s request to amend.1
Further, to the extent Petitioner objects to the magistrate judge’s report and
recommendation, the court finds the objections to be without merit. This court “shall make a de

1

In addition, the court denies Petitioner’s request as untimely; his original petition was
filed over two years ago and Petitioner did not request the amendment until after the magistrate
judge prepared a report recommending that his petition be denied.
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novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made. 28 U.S.C. § 636(b)(1)(C). The court “may accept,
reject or modify, in whole or in part, the findings or recommendations made by the magistrate.”
Id. Having thoroughly reviewed the papers, the court finds that the magistrate judge correctly
concluded that the petition, as well as a certificate of appealability, should be denied.
Accordingly, IT IS HEREBY ORDERED that Magistrate Judge Komives’s August 28,
2012 report and recommendation is ADOPTED and Petitioner’s application for writ of habeas
corpus is DENIED.
IT IS FURTHER ORDERED that Petitioner’s motion to amend the petition is DENIED
and his objections to the report and recommendation are OVERRULED.

s/John Corbett O'Meara
United States District Judge
Date: November 1, 2012

I hereby certify that a copy of the foregoing document was served upon the parties of
record on this date, November 1, 2012, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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