Arnold #171509 v. Michigan, State of et al
ORDER ADOPTING REPORT AND RECOMMENDATION 11 : Petitioner's petition, motion to withdraw 15 , and certificate of appealability are DENIED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
Arnold #171509 v. Michigan, State of et al
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
RICHARD WAYNE ARNOLD,
Case No. 1:13-CV-156
STATE OF MICHIGAN,
HON. GORDON J. QUIST
ORDER ADOPTING REPORT AND RECOMMENDATION
On May 5, 2013, Magistrate Judge Carmody issued a Report and Recommendation (R & R)
recommending that the Court deny Petitioner’s petition for writ of habeas corpus because it is barred
by the one-year statute of limitations set forth in 28 U.S.C. § 2254(d)(1)(A). The magistrate judge
concluded that the one-year limitations period expired on January 19, 2010, and Petitioner’s
collateral motion filed on August 1, 2012 did not revive the limitations period. (R&R at 6.) The
magistrate judge also concluded that Petitioner is not entitled to equitable tolling because he alleged
no facts or circumstances in his petition that would warrant equitable tolling. (Id. at 7.)
Petitioner has filed an Objection to the R & R, in which he requests that the Court apply
equitable tolling to his habeas petition.
After conducting a de novo review of the R & R and Petitioner’s Objection, the Court
concludes that the R & R should be adopted.
Pursuant to the doctrine of equitable tolling, a court may excuse late-filed habeas claims in
appropriate circumstances. McCray v. Vasbinder, 499 F.3d 568, 571 (6th Cir. 2007) (citing Souter
v. Jones, 395 F.3d 577, 588 (6th Cir. 2005)). Equitable tolling is “available only in compelling
circumstances which justify a departure from established procedures.” Puckett v. Tenn. Eastman
Co., 889 F.2d 1481, 1488 (6th Cir. 1989). The doctrine is “used sparingly by federal courts.
‘Typically, equitable tolling applies only when a litigant’s failure to meet a legally-mandated
deadline unavoidably arose from circumstances beyond the litigant’s control.’” Jurado v. Burt, 337
F.2d 638, 642 (6th Cir. 2003) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,
209 F.3d 552, 560–61 (6th Cir. 2000)) (citations omitted). “[A] ‘petitioner’ is ‘entitled to equitable
tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 130
S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814
Here, Petitioner contends that he diligently pursued his rights by presenting his claims to the
state court. He argues that he is entitled to equitable tolling because he was ignorant of the filing
requirement. The Sixth Circuit has held, however, that ignorance of the law alone does not warrant
equitable tolling. See Griffin v. Rogers, 399 F.3d 626, 637 (6th Cir. 2005); Allen v. Yukins, 366 F.3d
396, 403 (6th Cir. 2004).
Moreover, the circumstances Petitioner identifies—“[g]etting
reestablished, waiting to be put on law library call-outs, waiting for my property to catch up with
me, and waiting for my account to catch up with me,” (Pet’r’s Objection at 1)—are ordinary
incidents of prison life rather than “extraordinary circumstances” beyond Petitioner’s control
warranting the application of equitable tolling. Accordingly, the Court declines to apply equitable
tolling in this case.
Petitioner has also filed a Motion to Request Withdrawal (dkt. # 15), in which Petitioner
requests that the Court dismiss his petition without prejudice to allow him to exhaust new issues in
state court. The Court will deny the motion because the new claims Petitioner seeks to assert, like
the claims he has asserted in his instant petition, are barred by the one-year statute of limitations.
Under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio,
263 F.3d 466, 467 (6th Cir. 2001). Rather, the district court must “engage in a reasoned assessment
of each claim” to determine whether a certificate is warranted. Id. at 467. Each issue must be
considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473,
120 S. Ct. 1595 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined
Petitioner’s claims under the Slack standard.
Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to warrant a grant of the certificate, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” For the reasons stated above, the Court finds that
reasonable jurists could not find that this Court’s dismissal of Petitioner’s claim was debatable or
wrong. Thus, the Court will deny Petitioner a certificate of appealability. Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
issued May 9, 2013 (dkt. # 11) is APPROVED AND ADOPTED as the Opinion of this Court.
Petitioner’s Objection (dkt. # 14) is OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s habeas corpus petition is DENIED because
it is barred by the one-year statute of limitations.
IT IS FURTHER ORDERED that Petitioner’s Motion to Withdraw (dkt. # 15) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
This case is concluded.
Dated: August 14, 2013
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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