Williams #136544 v. Palmer

Filing 12

MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 10 , and denying petitioner's motion for equitable tolling 4 . Petitioner's petition is DISMISSED as untimely. A certificate of appealability is DENIED ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF MICHIGAN S O U T H E R N DIVISION

L E S T E R D. WILLIAMS, P e t i t io n e r , v. C A R M E N PALMER, R e sp o n d e n t. _________________________/ C A S E NO. 1:09-cv-467 H O N . ROBERT HOLMES BELL

M E M O R A N D U M OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION T h is matter is before the Court on a habeas corpus petition filed by Petitioner Lester D . Williams pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) On May 22, 2009, Petitioner filed a motion for equitable tolling of the limitations period. (Dkt. No. 4.) On July 21, 2009, M ag istrate Judge Joseph G. Scoville issued a report and recommendation ("R&R"), re c o m m e n d in g that this Court deny Petitioner's motion for equitable tolling and dismiss the p e titio n as untimely. (Dkt. No. 10.) Petitioner filed objections to the R&R on August 4, 2 0 0 9 . (Dkt. No. 11.) This Court must review de novo those portions of the R&R to which s p e c i f i c objection has been made, and may accept, reject, or modify any or all of the M a g i s tr a te Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P . 72(b).

P e titio n e r does not dispute that he did not file his petition until over twelve years after the expiration of the limitations period prescribed by 28 U.S.C. § 2244(d)(1). Rather, P e titio n e r objects to the Magistrate Judge's determination that the Court should not apply e q u ita b le tolling and consider his petition untimely. The doctrine of equitable tolling should be applied sparingly. Solomon v. United S ta te s, 467 F.3d 928, 933 (6th Cir. 2006). In Lawrence v. Florida, 549 U.S. 327 (2007), the S u p r e m e Court held that, for equitable tolling to apply, the Petitioner must demonstrate "`(1) th a t he has been pursuing his rights diligently, and (2) that some extraordinary circumstance s to o d in his way' and prevented timely filing." Id. at 336 (quoting Pace v. DiGuglielmo, 544 U .S . 408, 418 (2005)). Petitioner attempts to justify his failure to timely file his petition as follows: P etitio n er was physically and mentally prevented from accessing the Court th ro u g h no wont [sic] of due diligence, but [a] health related issue that d im in is h e s Petitioner's cogitative abilities. Petitioner suffers from [a] serious a rte ria l-f lo w problem that causes him to be obtuse, or extreme bouts of c o n f u s io n and forgetfulness, and he is simply unable to grasp the seriousness o f the situation or the legal requirement necessary for filing his claim even a f te r having it explained to him over and over. Petitioner's health problems th a t include extreme bouts of confusion and forgetfulness and the inability to u n d e r s ta n d the legal requirements interfered with his ability to pursue post c o n v ic tio n remedies and resulted in the delay in filing a motion for relief from ju d g m e n t in state courts and the habeas petition in this court. (D k t. No. 11, Pet'r Objections 2-3.) Petitioner also contends that "he is a handicap-prisoner w h o has serious siting problems in which he is unable to sit for extended periods of time, m a k in g it impossible for him to concentrate on writing a simple letter, let alone legal

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a rg u m e n ts requiring time and an acumen far beyond his abilities." (Id. at 3.) Nevertheless, th e Court does not believe that Petitioner has satisfied either of the two requirements for e q u ita b le tolling set forth in Lawrence. First, Petitioner has failed to demonstrate that he has been pursuing his rights d ilig e n tly. It is important to note at the outset that, although a mental or physical illness does w a rra n t equitable tolling in appropriate circumstances, the Petitioner bears the burden of in tro d u c in g evidence of the illness. Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004); see a lso McSwain v. Davis, 287 F. App'x 450, 456-57 (6th Cir. 2008) (unpublished) (finding it s ig n if ic a n t that "[t]he record contains substantial evidence to support [the petitioner's] a ss e rtio n that she suffers from a mental illness."). Petitioner's motion for equitable tolling a n d his objections to the R&R contain only bald assertions that he is mentally and physically d is a b le d . Petitioner has submitted no medical documentation or third-party affidavits that w o u ld enable the Court to objectively ascertain the precise nature of Petitioner's illness or th e detrimental effect of that illness on Petitioner's ability to file a habeas petition. N e v e rth e le ss , even if the Court were to adopt Petitioner's characterization of his illness, the C o u rt does not believe that Petitioner has been diligent in pursuing his rights. At most, " b o u ts of confusion and forgetfulness," inability "to sit for extended periods of time," and in a b ility "to grasp the seriousness of the situation," may justify a small departure from the o n e -ye a r limitations period. However, Petitioner's alleged handicaps are nowhere near sev ere enough for the Court to conclude that Petitioner was justified in waiting twelve years

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to file his petition. This conclusion is reinforced by the fact that several of the claims for re lie f asserted in Petitioner's § 2254 motion are identical to Petitioner's claims on direct a p p e al, suggesting Petitioner would have had to do minimal additional work to file his habeas p e titio n .1 Rhodes v. Senkowski, 82 F. Supp. 2d 160, 170 (S.D.N.Y. 2000) ("Another reason that equitable tolling is inappropriate here is that [the petitioner] waited almost eight years a f te r his conviction became final to file his current habeas petition, but his supporting brief m e re ly copies portions of his brief on direct state appeal."). For these reasons, had Petitioner tru ly been diligent in pursuing his rights, his petition would have been filed long before it w as. In addition, Petitioner has not demonstrated that his alleged handicaps constitute an " e x tra o rd in a ry circumstance [that] stood in his way' and prevented timely filing." Lawrence v . Florida, 549 U.S. 327, 336 (2007). In Price v. Lewis, 119 F. App'x 725 (6th Cir. 2005) (u n p u b lis h e d ), the Sixth Circuit considered whether mental or physical illness could c o n stitu te the requisite "extraordinary circumstance." The court held that "`[t]he exceptional c irc u m s ta n c es that would justify equitable tolling on the basis of mental incapacity are not p re s e n t when the party who seeks the tolling has been able to pursue his or her legal claims d u rin g the period of his or her alleged mental incapacity.'" Id. at 726 (quoting Brown v. M c K e e , 232 F. Supp. 2d 761, 768 (E.D. Mich. 2002)). The court determined that, because

In fact, with regard to three of Petitioner's habeas claims, Petitioner's habeas petition itself merely states "[p]lease see attached Michigan Court of Appeals brief No. 139420 for facts supporting this issue." (Dkt. No. 1 Ex. C.) 4

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th e petitioner "actively pursued his claims during the limitations period by seeking and o b ta in in g help completing paperwork," equitable tolling was not available on account of the p etitio n er's illness. Similarly, Petitioner concedes that he "repeatedly tried for years

f o llo w in g when his conviction became final to seek assistance with pursing post-conviction re m e d ie s," and that "on many occasions petitioner had enlisted the assistant [sic] of fellow in m a te s to help him with access to the court." (Dkt. No. 11, Pet'r Objections 3.) As in Price, P e titio n e r's illness has not completely prevented Petitioner from "seeking and obtaining help c o m p l e tin g legal paperwork" or otherwise pursing his claim. Therefore, Petitioner's illness d o e s not rise to the level of an "extraordinary circumstance [that] stood in his way' and p re v e n te d timely filing." Lawrence, 549 U.S. at 336. B e c a u se Petitioner has not demonstrated either of the two requirements for equitable to llin g set forth in Lawrence, equitable tolling does not apply. Petitioner's habeas petition is therefore time-barred by the one-year limitations period set forth in 28 U.S.C. § 2244(d)(1)(A). Finally, the Court does not believe that rational jurists could determine that equitable to llin g is appropriate in this case given the Supreme Court and Sixth Circuit precedent and f a c ts at hand. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (noting that a certificate of ap p ea lability should be granted if "reasonable jurists would find the district court's a ss e ss m e n t of the constitutional claims debatable or wrong") Therefore, a certificate a p p e a la b ility will be denied. 28 U.S.C. § 2253(c).

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A c c o r d i n g l y, I T IS HEREBY ORDERED that Petitioner's objections to the report and re c o m m e n d a tio n (Dkt. No. 11) are DENIED. IT IS FURTHER ORDERED that the report and recommendation (Dkt. No. 10) is A P P R O V E D and, combined with the discussion set forth herein, ADOPTED as the opinion o f the Court. I T IS FURTHER ORDERED that Petitioner's motion for equitable tolling (Dkt. No. 4 ) is DENIED. I T IS FURTHER ORDERED that Petitioner's petition under 28 U.S.C. § 2254 (Dkt. N o . 1) is DISMISSED as untimely. I T IS FURTHER ORDERED that a certificate of appealability is DENIED.

Dated: March 10, 2010

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

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