Johnson #117959 v. Palmer

Filing 6

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 4 ; denying petitioner's petition for writ of habeas corpus, and denying a certificate of appealability ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

Johnson #117959 v. Palmer

Doc. 6

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

H O W A R D JOHNSON, Petitioner, C a se No. 1:09-CV-1173 v. HON. ROBERT HOLMES BELL C A R M E N PALMER, R e sp o n d e n t. / O R D E R APPROVING AND ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS O n February 17, 2010, Magistrate Judge Joseph G. Scoville issued a Report and R e c o m m e n d a tio n ("R&R") recommending that Petitioner Howard Johnson's § 2254 petition f o r writ of habeas corpus be dismissed because it is barred by the one-year statute of lim ita tio n s . (Dkt. No. 4.) This matter is before the Court on Petitioner's objections to the R & R . (Dkt. No. 5.)

This Court is required to make a de novo review upon the record of those portions of the R&R to which specific objections have been made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Although the Magistrate Judge's R&R is reviewed de novo, this Court must review the state court proceedings consistent with the standards set forth in 28 U.S.C. § 2254.

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P e titio n e r's objections are based upon his contention that he is entitled to equitable to llin g . Petitioner asserts that at the time of his conviction in 1981 he was unable to read or sp e ll and was unable to afford counsel. He further asserts that it took him until 2000 to o b ta in his G.E.D., that it took him another five years to understand that he could file a motion f o r relief from judgment in the state court, and that it took him another year to file that m o tio n . In deciding whether equitable tolling should apply, the Sixth Circuit considers the f o llo w in g factors: (1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lac k of constructive knowledge of the filing requirement; (3) diligence in p u rs u in g one's rights; (4) absence of prejudice to the respondent; and (5) the p e titio n e r's reasonableness in remaining ignorant of the legal requirement for f ilin g his claim. S h e rw o o d v. Prelesnik, 579 F.3d 581, 588 (6th Cir. 2009) (quoting Griffin v. Rogers, 399 F .3 d 626, 635 (6th Cir. 2005)). Petitioner requests equitable tolling based on his illiteracy, lack of legal knowledge, a n d his pro se status. "[A]n inmate's lack of legal training, his poor education, or even his illite ra c y does not give a court reason to toll the statute of limitations." Cobas v. Burgess, 3 0 6 F.3d 441, 444 (6th Cir. 2002). This is so, even if the petitioner is proceeding without the b e n e f it of counsel. Id.; see also Harvey v. Jones, 179 F. App'x 294, 299 (6th Cir. 2006) (h o ld in g that neither ignorance of the law, unfamiliarity with the legal process, nor lack of e d u c a tio n was sufficient to warrant equitable tolling); Yang v. Archuleta, 525 F.3d 925, 929

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(1 0 th Cir. 2008) (holding that a lack of proficiency in the English language did not warrant e q u itab le tolling); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999) (holding that u n f a m ilia rity with the law "due to illiteracy or any other reason" does not merit equitable to llin g ). Petitioner has not met his burden of showing that he is entitled to equitable tolling. A c c o r d i n g l y, I T IS HEREBY ORDERED that Petitioner's objections to the Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 5) are OVERRULED. I T IS FURTHER ORDERED that the February 17, 2010 R&R (Dkt. No. 4) is A P P R O V E D and ADOPTED as the opinion of the Court. I T IS FURTHER ORDERED that Petitioner's petition for writ of habeas corpus ( D k t . No. 1) is DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 28 U .S .C . § 2253(c); Slack v. McDaniel, 529 U.S. 473 (2000).

Dated: September 17, 2010

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

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