Townsend #221158 v. Smith

Filing 6

ORDER REJECTING REPORT AND RECOMMENDATION 3 ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, kw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DON E. TOWNSEND #221158,
Petitioner,

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-v)
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WILLIE O. SMITH,
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Respondent.
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____________________________________)

No. 1:13-cv-488
HONORABLE PAUL L. MALONEY

ORDER REJECTING REPORT AND RECOMMENDATION
On May 6, 2013, state prisoner Don E. Townsend filed a habeas corpus petition in this court
pursuant to 28 U.S.C. § 2254. On the court’s review of the petition, Magistrate Judge Scoville
issued a Report and Recommendation (ECF No. 3) that Mr. Townsend’s petition be denied. Before
the court today are Mr. Townsend’s timely objections to the Report and Recommendation. (ECF
No. 4.)
STANDARD OF REVIEW
Parties have 14 days to file written objections to the proposed findings and recommendations
in a magistrate judge’s report and recommendation (“R&R”). 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b). A district court judge reviews de novo the portions of the R&R to which objections have
been filed, and may accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only specific objections are
entitled to de novo review under the statute, see Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986)
(per curiam), and the statute does not “positively require[] some lesser review by the district court
when no objections are filed.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to object to an
issue waives that issue, along with the party’s right to appeal that issue. United States v. Sullivan,
431 F.3d 976, 984 (6th Cir. 2005); see Arn, 474 U.S. at 155 (upholding the Sixth Circuit’s practice).

DISCUSSION
Mr. Townsend’s conviction became final on July 24, 2009, at the expiration of his time to
seek leave to appeal to the Michigan Supreme Court. Under 28 U.S.C. § 2244(d)(1), Mr. Townsend
had one year to file his habeas petition in this court. He did not do so. Nor did he apply for statelevel collateral review during that year, which would have stopped the clock in this court. Id. §
2244(d)(2). On that basis, the magistrate judge recommended that Mr. Townsend’s petition be
denied as barred by the statute of limitations.
In his objections, Mr. Townsend argues that he should be given the benefit of equitable
tolling. For the court to equitably toll the section-2244 statute of limitations, Mr. Townsend must
show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Mr. Townsend
argues that he did try to pursue his rights diligently, but was stymied by unscrupulous jailhouse
lawyers and his own mental illness.
Bad advice by other inmates is not an extraordinary circumstance for purposes of equitable
tolling. Mr. Townsend was not entitled to a lawyer for his appeal to the Michigan Supreme Court,
see Ross v. Moffitt, 417 U.S. 600, 610 (1974), and so his reliance on inmates who claimed to have
legal expertise left Mr. Townsend in no worse a position than he had been in otherwise. “[A]n
inmate’s lack of legal training, his poor education, or even his illiteracy does not give a court reason
to toll the statute of limitations.”

Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002).

Accordingly, Mr. Townsend’s apparently ill-placed reliance on “jailhouse lawyers” is also not a
basis for equitable tolling.
Mental illness, on the other hand, can justify equitable tolling if the petitioner demonstrates

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“that (1) he is mentally incompetent and (2) his mental incompetence caused his failure to comply
with AEDPA’s statute of limitations.” Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011). But “a
blanket assertion of mental incompetence is insufficient to toll the statute of limitations. Rather, a
causal link between the mental condition and untimely filing is required.” Id.
Mr. Townsend presents the court with a treatment plan from the Michigan Department of
Corrections, dated November 17, 2010 and stating that he suffers from bipolar disorder and
antisocial personality disorder. He argues that he “often suffers episodes of delusional thinking” and
that “[d]ue to his mental state, [he] was incapable of filing an application for leave to appeal with
the Michigan Supreme Court within the time prescribed.”
These allegations present more than just a bare claim of mental incompetence. Mr.
Townsend provides evidence that he had a recognized mental illness around the relevant time period.
He directly links that illness to his failure to ask the Michigan Supreme Court for leave to appeal.
Moreover, he attempts to explain why his illness could have prevented him from filing some papers
on his own behalf but allowed him to later seek collateral review in the state and federal courts. The
Ata court found that similar allegations were enough to entitle the petitioner to an evidentiary
hearing. See id. at 743–44. While Mr. Townsend’s supporting evidence is not as robust as that in
Ata, this alone does not doom his claim. What is important here is that nothing in the record
contradicts Mr. Townsend’s claims, and if taken at face value, they could constitute an
“extraordinary circumstance” standing in his way. See id. at 744–45 (“The second step of our
analysis requires a review of the record to ensure it does not refute Ata’s request for equitable
tolling.”). Under the Sixth Circuit’s ruling in Ata, then, Mr. Townsend must be given an evidentiary
hearing.

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This does not mean that Mr. Townsend is necessarily entitled to equitable tolling. But it does
mean that this court cannot dismiss his claim on that ground until he has had a chance to prove his
claims in court. Id. at 745.
For these reasons:
(1)

The court REJECTS the report and recommendation (ECF No. 3).

(2)

This matter is hereby referred to Magistrate Judge Ellen S. Carmody solely
for the purpose of appointment of counsel and related procedural matters
pursuant to the Pro Bono Plan of the United States District Court for the
Western District of Michigan. See W.D. Mich. Admin. Order Nos. 03-003
and 07-003. Counsel’s appointment shall be limited to his/her representation
of petitioner on the issue of equitable tolling only.

(3)

Once counsel has been appointed, the court will schedule an evidentiary
hearing on the issue of equitable tolling.

IT IS SO ORDERED.

Date:

July 24, 2013

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

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