Coffin #494422 v. Rivard

Filing 44

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 41 ; granting in part and denying in part Respondent's motion for summary judgment 13 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BEN WILLIAM COFFIN,
Petitioner,
CASE NO. 1:12-CV-1196
v.
HON. ROBERT J. JONKER
STEVE RIVARD,
Respondent.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Brenneman’s Report and Recommendation (docket
# 41); Respondent’s Objection (docket #42); and Petitioner’s Response to Objection (docket # 43).
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 Magistrate Judge recommends denying Respondent’s motion for summary judgment as
to the claim that the habeas petition was filed untimely. The Respondent objects and contends the
petition was untimely. The Magistrate Judge further recommends granting Respondent’s motion for
summary judgment with respect to Petitioner’s Issue I and that this Issue be denied. No one objects
to this recommendation. The Court has reviewed de novo the claims and evidence presented to the
Magistrate Judge; the Report and Recommendation itself; Respondent’s Objection; and Petitioner’s
Response to Objection. After its review, the Court finds that the Magistrate Judge’s Report and
Recommendation is factually sound and legally correct.
The timeliness issue turns on when Petitioner’s state court judgment became final for
AEDPA. All agree the Michigan Court of Appeals issued its order remanding Petitioner’s case “with
instructions that the trial court amend the judgment of sentence to reflect that defendant’s sentence
for the instant conviction is to be served concurrently with that for the previous conviction,” on
September 3, 2009.

People v. Coffin, No. 285564 (Sept. 3, 2009). Respondent contends that

Petitioner’s direct appeal period concluded with the issuance of the September 3, 2009 order because
Petitioner prevailed on the only issue he had raised on appeal. The Magistrate Judge disagreed and
applied the well-established rule under Gonzalez v. Thaler, __ U.S. __, 132 S. Ct. 641 (2012), that
the direct appeal period runs through “‘expiration of the time for seeking such [direct] review’ –
when the time for pursuing direct review in this Court, or in state court, expires.” Gonzalez, 132
S. Ct. at 653-54.
Respondent presents no legal authority to support its position that Gonzalez should not apply
when a petitioner prevails on an intermediate appeal. Instead, Respondent argues the practical point
that Petitioner would not have been able to get anything more from the Michigan Supreme Court
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review, because there was no remaining relief he was seeking. This is not persuasive. The point of
Gonzalez is to create a simple, easy-to-apply test to guide litigants and courts. Assessing in
retrospect whether a party had more to gain is beside the point. Respondent’s theory would also
dictate the incongruous result that a petitioner who lost on an appeal and failed to seek direct review
would still get the benefit of 56 more days than a petitioner who won on appeal. For the very reasons
the Report and Recommendation details, the Court agrees with the Magistrate Judge’s conclusion
that Petitioner’s judgment became final, for the purpose of the § 2244(d)(1) analysis, upon the
expiration of the 56 days he had to appeal the September 3, 2009 order to the Michigan Supreme
Court. Respondent’s Objection fails.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 41) is APPROVED AND ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that
1.

Respondent’s Motion for Summary Judgment (docket # 13) is DENIED as to the
claim that the habeas petition was filed untimely;

2.

Respondent’s Motion for Summary Judgment (docket # 13) is GRANTED with
respect to Petitioner’s habeas Issue I, and Petitioner’s habeas Issue I is DENIED;

3.

Respondent’s answer to Issues II, III, IV, V, and VI of the amended petition is due
no later than 60 days after the date of this Order.

Dated:

March 13, 2014

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

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