Gilmer #759024 v. Curtin

Filing 5

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 3 ; Gilmer's objections 4 are overruled; Gilmer's habeas petition 1 is denied; denying certificate of appealability ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL ANSERIO GILMER,
Petitioner,

Case No. 1:13-CV-425

v.

HON. ROBERT J. JONKER

CINDI CURTIN,
Respondent.
/
ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner, Michael Anserio Gilmer, has filed an Objection (docket #4) to Magistrate Judge
Hugh W. Brenneman’s Report and Recommendation issued August 28, 2013 (docket #3). The
Report and Recommendation recommends that this Court deny Gilmer’s habeas corpus petition as
barred by the one-year statute of limitations. When a party objects to a magistrate judge’s report and
recommendation, the “district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3). De novo review in these circumstances requires at least a
review of the evidence before the magistrate judge that is relevant to the findings under attack. Hill
v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After conducting a de novo review of the
Report and Recommendation, Gilmer’s objections, and the pertinent portions of the record, the Court
will adopt the Report and Recommendation and deny Gilmer’s habeas petition.

I. Gilmer’s Objections
Gilmer presents two objections: (1) the magistrate judge incorrectly concluded that Gilmer’s
petition is time-barred, and (2) he is actually innocent, entitling him to equitable tolling of the statute
of limitations.1
A. Statute of Limitations
Gilmer first objects to the magistrate judge’s conclusion that his petition is time-barred.
Gilmer does not deny that he has failed to satisfy the one-year statute of limitations. Rather, his
objection appears to be that he is entitled to equitable tolling because he thought he had counsel to
file his direct appeals in a timely manner. This is insufficient to warrant habeas relief.
Courts grant equitable tolling “sparingly.” See, e.g., Hall v. Warden, Lebanon Corr. Inst.,
662 F.3d 745, 749 (6th Circ. 2011). “A habeas petitioner is entitled to equitable tolling only if two
requirements are met. First, the petitioner must establish that he has been pursuing his rights
diligently . . . . And second, the petitioner must show that some extraordinary circumstances stood
in his way and prevented timely filing.” Id. The petitioner bears the burden of demonstrating that
he is entitled to equitable tolling. Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). That a
petitioner is untrained in the law, was proceeding without a lawyer, or was unaware of the statute
of limitations for a certain period of time does not warrant equitable tolling. See id. at 403–04; see
also Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (“[I]gnorance of the law, even for an
incarcerated pro se petitioner, generally does not excuse [late] filing.”).
The burden is on Gilmer to explain why his misunderstanding that he had attained appellate

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Gilmer also objects on the merits of his petition, which the magistrate judge did not reach
because he concluded that Gilmer’s petition is time-barred. Because the Court adopts the analysis
of the Report and Recommendation, it need not reach these objections.
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counsel kept him from diligently pursuing his habeas petition, and to show that some extraordinary
circumstances stood in his way. Gilmer’s vague statement that he thought he had attained appellate
counsel is insufficient to satisfy his burden.
B. Actual Innocence
Second, to the extent that the Court interprets Gilmer’s objection as a claim of actual
innocence entitling him to equitable tolling, his objection lacks merit. The magistrate judge
addressed this in the Report and Recommendation, observing that Gilmer has not offered any new
evidence of his innocence, and certainly not evidence that makes it more likely than not that no
reasonable jury would have convicted him. See Schlup v. Delo, 513 U.S. 298, 329 (1995). The
Court agrees that Gilmer is not entitled to habeas relief on these grounds.

II. Certificate of Appealability
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 a petitioner has demonstrated “a
substantial showing of a denial of a constitutional right.” Id. 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 (2000). Murphy, 263
F.3d at 467. Consequently, this Court has examined Gilmer’s claims under the Slack standard.
Under Slack, 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.” 529 U.S. at 484. For the reasons stated above, the Court finds that reasonable jurists
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could not find that this Court’s dismissal of Gilmer’s claims was debatable or wrong. Thus, the
Court will deny Gilmer a certificate of appealability.
ACCORDINGLY, IT IS HEREBY ORDERED that the Court adopts the Report and
Recommendation (docket #3) as the Opinion of the Court.
IT IS FURTHER ORDERED that Gilmer’s objections (docket #4) are OVERRULED.
IT IS FURTHER ORDERED that Gilmer’s habeas petition (docket #1) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
A separate judgment will issue.

Dated: February 26, 2014

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

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