Young #273693 v. Lafler

Filing 9

MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 7 , dismissing petitioner's habeas petition under 28 U.S.C. 2254, and denying a certificate of appealability ; 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

H E N R Y LEE YOUNG, P e t i t io n e r , v. B L A IN E C. LAFLER, R e sp o n d e n t. _________________________/ C A S E NO. 1:09-CV-749 H O N . ROBERT HOLMES BELL

M E M O R A N D U M OPINION AND ORDER T h is matter comes before the Court on Petitioner Henry Lee Young's petition under 2 8 U.S.C. § 2254 for a writ of habeas corpus. (Dkt. No. 1.) On October 16, 2009, Magistrate Ju d g e Joseph G. Scoville issued a report and recommendation (R&R) recommending that this p e titio n be dismissed because it is barred by the one-year statute of limitations governing h a b e as proceedings. (Dkt. No. 7.) Petitioner filed objections to the R&R on October 26, 2 0 0 9 . (Dkt. No. 8.) This Court must review de novo those portions of the R&R to which s p e c if ic objection has been made, and may accept, reject, or modify any or all of the M a g is tra te Judge's findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 7 2 (b). P e titio n e r concedes that his petition is "time barred on its face." (Dkt. No. 8, at 1.) N e v e rth e le ss , Petitioner first argues that the Court should consider it because "Petitioner has

b e e n incapable of doing, or securing adequate representation through the habeas corpus p ro c e d u re ." (Id. at 2.) Though Petitioner submits that he "may not be entitled to equitable to llin g of the statute of limitations" (id. at 3), equitable tolling appears to be precisely what P e titio n e r is requesting. For equitable tolling to apply, Petitioner must demonstrate "that he h a s been pursuing his rights diligently" and that "extraordinary circumstances stood in his w a y and prevented timely filing." Lawrence v. Florida, 549 U.S. 327, 336 (2007). However, P e titio n e r's lack of skill and inability to secure assistance in the filing of his petition do not c o n stitu te "extraordinary circumstances" sufficient to relieve Petitioner of the one-year filing re q u ire m e n t. See Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002) ("[A]n inmate's lack o f legal training, his poor education, or even his illiteracy does not give a court reason to toll th e statute of limitations."). Petitioner also argues that he should be excused from the one-year limitations period b e c au s e he is actually innocent. As the Magistrate Judge notes, a credible showing of actual in n o c e n ce can, in some circumstances, relieve the application of the limitations period. M c C r a y v. Vasbinder, 499 F.3d 568, 577 (6th Cir. 2007). However, a claim of actual in n o c e n ce must be supported by evidence that is both "new" and "reliable." Schlup v. Delo, 5 1 3 U.S. 298, 324 (1995). In support of his claim that he is actually innocent, Petitioner s u b m its an affidavit from the victim, Ruby Lynn, recanting her testimony that implicated P e titio n e r in her assault. (Dkt. No. 2, Ex. A (affidavit).) However, this evidence is neither c re d ib le nor new. Victim recantations are viewed with great suspicion, especially when the

2

v ic tim has a prolonged and intimate relationship with the defendant, as is the case here. U n ited States v. Willis, 257 F.3d 636, 645 (6th Cir. 2001) ("[A]ffidavits by witnesses rec an tin g their trial testimony are to be looked upon with extreme suspicion."); United States v . Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991) ("Recanting affidavits and witnesses are v iew ed with extreme suspicion."). In addition, the evidence is not new because Petitioner's trial attorney and the prosecutor were informed of Ms. Lynn's recantation prior to P etitio n er's conviction. (Dkt. No. 2, Ex. A (affidavit) ¶ 5.). P u r s u a n t to 28 U.S.C. § 2253, the Court must also determine whether to issue a c e rtif ic a te of appealability. To warrant the grant of a certificate of appealability, Petitioner m u s t demonstrate that "reasonable jurists would find the district court's assessment of the c o n s titu tio n a l claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). T h e Sixth Circuit has disapproved of the issuance of blanket denials of a certificate of a p p e a la b ility. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Rather, the district court m u st "engage in a reasoned assessment of each claim" to determine whether a certificate s h o u ld issue. Id. Upon review of each claim, the Court does not believe that a reasonable ju ris t would find the Court's assessment of Petitioner's claims to be debatable or wrong. Accordingly, I T IS HEREBY ORDERED that Petitioner's objections to the R&R (Dkt. No. 8) are OVERRULED.

3

I T IS FURTHER ORDERED that the R&R (Dkt. No. 7) is APPROVED and, c o m b in e d with the discussion set forth herein, ADOPTED as the opinion of the Court. I T IS FURTHER ORDERED that Petitioner's habeas petition under 28 U.S.C. § 2254 (Dkt. No. 5) is DISMISSED as time-barred. I T IS FURTHER ORDERED that a certificate of appealability is DENIED.

Dated: August 10, 2010

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

4