Burrows #254389 v. Curtin

Filing 7

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 4 ; Petition for Writ of Habeas Corpus 1 3 is denied; Petitioner is denied a certificate of appealability; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARRELL BURROWS,
Petitioner,
CASE NO. 1:11-CV-304
v.
HON. ROBERT J. JONKER
CINDI CURTIN,
Respondent.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION

The Court has reviewed Magistrate Judge Brenneman’s Report and Recommendation (docket
# 4) and Petitioner Burrows’s Objections to Report and Recommendation (docket # 5).
Under the Federal Rules of Civil Procedure, where, as here, a party has objected to portions
of a Report and Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge’s
recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRIGHT ,
MILLER, & MARCUS , FEDERAL PRACTICE

AND

PROCEDURE § 3070.2, at 381 (2d ed. 1997).

Specifically, the Rules provide that:
The district judge to whom the case is assigned shall make a de novo
determination upon the record, or after additional evidence, of any
portion of the magistrate judge's disposition to which specific written
objection has been made in accordance with this rule. The district
judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the magistrate
judge with instructions.

Fed R. Civ. P. 72(b). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge;
the Report and Recommendation itself; and Petitioner's objections. After its review, the Court finds
that Magistrate Judge Brenneman’s Report and Recommendation, which concluded that
Mr. Burrows is not entitled to equitable tolling of the statute of limitations on his habeas claim, is
factually sound and legally correct.
Equitable tolling should be applied sparingly, and only under extraordinary circumstances.
Sherwood v. Prelesnik, 579 F.3d 581, 588 (6th Cir. 2009). A party seeking equitable tolling must
establish “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Lawrence v. Florida, 549 U.S. 327, 335 (2007) (citing Pace v.
DiGuglielmo, 544 U.S. 408, 418 and n. 8 (2005)). Mr. Burrows has not satisfied this test.
Mr. Burrows does not dispute the Magistrate Judge’s finding that, absent equitable tolling,
his habeas petition is time-barred. Mr. Burrows asserts that he is entitled to equitable tolling,
however. Mr. Burrows claims that he failed to file his habeas petition within the applicable statute
of limitations because he felt he needed to learn the law and obtain certain discovery materials
before filing the petition. (docket # 5, at 4.) Mr. Burrows does not suggest that he lacked
knowledge of the filing deadline. Mr. Burrows acknowledges that after obtaining the materials he
sought, he waited an additional eight months before filing his habeas petition. (Id.) This delay is
inconsistent with a diligent pursuit of his rights. But even assuming Mr. Burrows has been
diligently pursuing his rights, Mr. Burrows’s decision to undertake legal research and seek various
materials before filing his habeas petition does not rise to the level of the kind of extraordinary
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circumstance that would justify equitable tolling. See, e.g. Jurado v. Burt, 337 F.3d 638, 643 (6th
Cir. 2003) (“Typically, equitable tolling applies only when a litigant’s failure to meet a legallymandated deadline unavoidably arose from circumstances beyond that litigant’s control.”)(quotation
omitted). Mr. Burrows’s objection is unavailing.
Mr. Burrows also raises a general objection that in essence reiterates his claim of ineffective
assistance of counsel at his state court trial. (docket # 5, at 9-10.) As the Magistrate Judge correctly
pointed out in his Report and Recommendation (docket #4), attorney error during conviction,
sentencing and direct appeal are not relevant to the timeliness of a habeas petition, because the
habeas statute of limitations begins to run only after direct appeal is over. Allen v. Yukins, 366 F.3d
396, 403 (6th Cir. 2004). Therefore, Mr. Burrows’s general objection concerning his state court
trial counsel has no effect on the analysis in this case.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner may not
appeal in a habeas corpus case unless a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1). The Federal Rules of Appellate Procedure extend to district judges the
authority to issue certificates of appealability. FED . R. APP . P. 22(b); see also, Castro v. United
States, 310 F.3d 900, 901-02 (6th Cir. 2002) (the district judge “must issue or deny a [certificate
of appealability] if an applicant files a notice of appeal pursuant to the explicit requirements of
Federal Rule of Appellate Procedure 22(b)(1)”). However, a certificate of appealability may be
issued “only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
To obtain a certificate of appealability, Petitioner must demonstrate that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller3

El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
While Petitioner is not required to establish that “some jurists would grant the petition for habeas
corpus,” he “must prove ‘something more than an absence of frivolity’ or the existence of mere
‘good faith.’” Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In this case, Mr. Ramirez
has not made a substantial showing of the denial of a constitutional right. Therefore, he is not
entitled to a certificate of appealability.
The Magistrate Judge correctly concluded that Mr. Burrows’s habeas corpus petition is
barred by the one-year statute of limitations, and Mr. Burrows is not entitled to a certificate of
appealability. Accordingly, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 4) is APPROVED AND ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that:
1.

Petitioner’s Petition for Writ of Habeas Corpus (docket ## 1, 3) is DENIED
because it is barred by the one-year statute of limitations;
and

2.

Dated:

Petitioner is DENIED a certificate of appealability.

September 8, 2011

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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