Guinn #144174 v. Smith

Filing 9

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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

HERMAN ROBERT GUINN,
Petitioner,
File No. 1:13-CV-769
v.
HON. ROBERT HOLMES BELL
WILLIE SMITH,
Respondent.
/
OPINION
This is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254 involving Petitioner’s
sentence for unarmed robbery. The matter was referred to Magistrate Judge Scoville, who issued a
Report and Recommendation (R & R) recommending that this Court deny the petition as timebarred. 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. “[A] general objection to a magistrate’s report, which fails to specify
the issues of contention, does not satisfy the requirement that an objection be filed. The objections
must be clear enough to enable the district court to discern those issues that are dispositive and
contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). The Court may accept, reject, or
modify any or all of the Magistrate Judge’s findings or recommendations. Id. Having considered the
arguments presented, the Court denies the objections and issues this Opinion and Final Order. See
Rules Governing § 2254 Cases, Rule 11 (referring to the order disposing of a habeas petition as a
“final order”).

Petitioner objects generally to the conclusions of the Magistrate Judge without raising any
specific challenge to the Magistrate Judge’s application of the law to his case. Petitioner does
challenge the Magistrate Judge’s calculation of the time his limitations period was tolled, stating,
“The [Michigan Supreme Court] accepted the appeal on November 7th, 2008 [sic] which calculates
to only fifty-three (53) days and not the fifty-six (56) days as stamped by Michigan Supreme Court
Clerk, Corbin Davis who delayed in stamping the receipt of [sic]” (Pet’r Obj., Dkt. No. 7 at 2).
Assuming Petitioner is correct, this would afford him an extra three days, which would, at most,
extend his limitations period to April 4, 2009 (see R & R, Dkt. No. 6 at 5). Petitioner’s July 2013
filing of his § 2254 petition clearly falls outside this period. Petitioner’s objection to the contrary
lacks merit, and is therefore denied.
Having determined 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 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).
Where, as here, the petition is rejected on procedural grounds without reaching the merits of
the underlying claims, the Court should issue a certificate of appealability if “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. However, “[w]here a plain
procedural bar is present and the district court is correct to invoke it to dispose of the case, a
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reasonable jurist could not conclude either that the district court erred in dismissing the petition or
that the petitioner should be allowed to proceed further .” Slack, 529 U.S. at 484. Upon review, the
Court finds that reasonable jurists would not find the Court’s procedural ruling debatable. A
certificate of appealability will therefore be denied.
The Court will enter a Final Order and Judgment consistent with this Opinion.

Dated: September 12, 2013

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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