Wilkinson #178542 v. Smith

Filing 7

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 4 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CLIFFORD WILKINSON,
Petitioner,

Case No. 1:13-cv-219

v.

HON. JANET T. NEFF

WILLIE O. SMITH,
Respondent.
_______________________________/

OPINION & ORDER
This is a habeas corpus petition brought by a state prisoner pursuant to 28 U.S.C. § 2254.
The matter was referred to the Magistrate Judge, who issued a Report and Recommendation (R&R)
recommending that this Court deny the petition as time barred under the applicable statute of
limitations. The matter is presently before the Court on Petitioner’s objections to the Report and
Recommendation. In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court
has performed de novo consideration of those portions of the Report and Recommendation to which
objections have been made. The Court denies the objections and issues this Opinion and Order. The
Court will also issue a Judgment in this § 2254 proceeding. See Gillis v. United States, 729 F.3d
641, 643 (6th Cir. 2013) (requiring a separate judgment in habeas proceedings).
Petitioner’s first objection merely reiterates his prior argument that the Michigan Supreme
Court’s decision in People v. Feezel, 783 N.W.2d 67 (Mich. 2010), constitutes a change in the
interpretation of Michigan law that triggered the running of the limitations period under 28 U.S.C.
§ 2244(d)(1)(C). He asserts that the “Michigan Supreme Court granted Leave to Appeal in People

v. Feezel and denied it in People v. Wilkinson, that showed prejudice” (Pet’r Objs., Dkt 5 at 2). The
Magistrate Judge properly concluded that “Petitioner does not allege the recognition of a new right
by the United States Supreme Court. He alleges only a change in the interpretation of state law. As
a consequence, the petition is not timely under § 2244(d)(1)(C)” (R&R, Dkt 4 at 6). Petitioner’s
“objection” demonstrates no error in the Magistrate Judge’s conclusion.
Petitioner next argues that the
[l]ower Courts violated Michigan Court Rules when they failed to return Defendant’s
successive motion as requested by MCR 6.502(G)(1). Such evidence suggest [sic]
that the Courts realized the Defendant’s appeal was rooted in MCR 6.502(G)(2).
That the change in the law certainly warrant a Vacating & Remanding as in Soares
and Barkley, infra.
(Pet’r Objs., Dkt 5 at 2). Again, this “objection” merely reiterates the claims in the petition, and
fails to pose any specific challenge to the Magistrate Judge’s Report and Recommendation. See
Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004) (disfavoring the practice of incorporating
prior arguments into objections to a magistrate judge’s report); Miller v. Currie, 50 F.3d 373, 380
(6th Cir. 1995) (“objections must be clear enough to enable the district court to discern those issues
that are dispositive and contentious”). Therefore, this objection is denied.
Last, although Petitioner did not raise equitable tolling in his petition, he nonetheless objects
to the Magistrate Judge’s conclusion that he failed to allege any facts or circumstances that would
warrant its application in this case (Pet’r Objs., Dkt 5 at 3; R&R, Dkt 4 at 8). Petitioner argues, for
the first time, that his “successive motions should stand as to his exercise of due diligence” (Pet’r
Objs., Dkt 5 at 2). Petitioner further asserts that he “diligently pursued the State Court to honor the
Supreme Court’s change in law for the controlled substance to his case . . . . Petitioner has been
pursuing his rights diligently . . . and the circumstances standing in his way being the separation

2

from outside sources while being incarcerated” (id. at 3).
Even assuming arguendo that Petitioner was in diligent pursuit of his rights, he has not borne
his burden of establishing the other requisite element for tolling, to wit: “that some extraordinary
circumstance stood in his way’” (R&R, Dkt 4 at 7-8, quoting Holland v. Florida, 560 U.S. 631; 130
S. Ct. 2549, 2562 (2010)). See, e.g., McDonald v. Warden, Lebanon Corr. Inst., 482 F. App’x 22,
31 (6th Cir. 2012) (determining that incarceration is not an “extraordinary circumstance” inasmuch
as “the vast majority of habeas petitioners are incarcerated”). Petitioner’s objection therefore fails
to demonstrate any error in the Magistrate Judge’s conclusion that equitable tolling of the habeas
statute of limitations is not justified in this case.
Having determined that Petitioner’s objections lack merit, the Court must further determine
pursuant to 28 U.S.C. § 2253(c) whether to grant a certificate of appealability (COA) as to the issues
raised. See RULES GOVERNING § 2254 CASES, Rule 11 (requiring the district court to “issue or deny
a certificate of appealability when it enters a final order”). The Court must review the issues
individually. Slack v. McDaniel, 529 U.S. 473 (2000); Murphy v. Ohio, 263 F.3d 466, 466-67 (6th
Cir. 2001).
“When the district court denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack, 529 U.S. at 484. “Where a plain procedural bar is
present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could
not conclude either that the district court erred in dismissing the petition or that the petitioner should

3

be allowed to proceed further.” Id. Upon review, this Court finds that reasonable jurists would not
find the Court’s procedural ruling debatable. A certificate of appealability will therefore be denied.
Accordingly:
IT IS HEREBY ORDERED that the Objections (Dkt 5) are DENIED and the Report and
Recommendation (Dkt 4) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the petition (Dkt 1) is DENIED for the reasons stated
in the Report and Recommendation.
IT IS FURTHER ORDERED that a certificate of appealability in this matter is denied.

30
Dated: October ___, 2013

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

4