Bailey #237768 v. Palmer

Filing 12

OPINION ADOPTING REPORT AND RECOMMENDATION 6 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

C H A R L E S BAILEY, P e titio n e r, v. CARMEN PALMER, R e sp o n d e n t. _________________________________/ O P I N IO N ADOPTING REPORT AND RECOMMENDATION T h is is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The matter was ref erred to the Magistrate Judge, who issued a Report and Recommendation ("R&R"), rec o m m en d in g that this Court deny the petition (docket #6). The matter presently is before th e Court on Petitioner's objections to the R&R (docket #10). This Court reviews de novo those portions of an R&R to which specific objections are m a d e . 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). See also U.S. Fidelity and Guar. Co. v . Thomas Solvent Co., 955 F.2d 1085, 1088 (6th Cir. 1992) (noting that a district court c o n d u c ts de novo review of magistrate judge's rulings on dispositive motions); Miller v. C u rr ie , 50 F.3d 373, 380 (6th Cir. 1995). The Court may accept, reject or modify any or all o f the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1). The Magistrate Judge recommended that the action be dismissed because it was barred b y the statute of limitations. In his objections, Petitioner argues that he has fully exhausted F I L E NO. 1:09-cv-163 H O N . ROBERT HOLMES BELL

h is state-court remedies and his claims are not procedurally defaulted. He does not, however, d e m o n s tra te any error in the Magistrate Judge's analysis of the statute of limitations or s u g g e st a basis for equitable tolling. Petitioner, therefore, has failed to articulate a relevant o b je c tio n to the R&R. H a v in g considered each of Petitioner's objections and the analysis of the Magistrate J u d g e and finding no error, the Court hereby denies Petitioner's objections and adopts the R e p o rt 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 a p p e ala b ility should be granted. A certificate should issue if Petitioner has demonstrated a "s u b sta n tial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth C i r c u it Court of Appeals has disapproved issuance of blanket denials of a certificate of a p p e a la b ility. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "e n g a g e in a reasoned assessment of each claim" to determine whether a certificate is w a rra n te d under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 4 7 3 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of P e titio n e r's claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the certificate, "[t]he petitioner m u s t demonstrate that reasonable jurists would find the district court's assessment of the c o n s titu t io n a l claims debatable or wrong." Id. "A petitioner satisfies this standard by d e m o n s tra ti n g that . . . jurists could conclude the issues presented are adequate to deserve

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e n c o u r a g e m e n t to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In a p p lyin g this standard, the court may not conduct a full merits review, but must limit its e x a m in a tio n 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 b y the statute of limitations. Under Slack, 529 U.S. at 484, when a habeas petition is denied o n procedural grounds, a certificate of appealability may issue only "when the prisoner s h o w s , 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 m u s t be made to warrant the grant of a certificate. Id. The Court finds that reasonable jurists c o u ld not debate that this Court correctly dismissed each of Petitioner's claims on the p ro c e d u ra l ground that the petition is barred by the statue of limitations. "Where a plain p ro c e d u ra l 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 p e t itio n or that the petitioner should be allowed to proceed further." Id. Therefore, the Court d e n ie s Petitioner a certificate of appealability. A judgment consistent with this opinion shall be entered.

Dated: June 18, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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