Noble #180819 v. Hoffner
Filing
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OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 7 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JIMMY WILLIAM NOBLE,
Petitioner,
Case No. 1:13-cv-1074
v.
HON. JANET T. NEFF
BONITA HOFFNER,
Respondent.
_______________________________/
OPINION AND ORDER
This is a habeas corpus petition filed 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. 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 contends that, because he is entitled to equitable tolling, the Magistrate Judge erred
by concluding that his habeas corpus petition is time barred (Pet’r Obj., Dkt 14 at 1-2, 4). To justify
his argument, Petitioner advances several reasons for failing to comply with the one-year statute of
limitations: (1) the failure of trial and appellate counsel “to properly investigate and assemble
evidence that would have proven Petitioner’s innocence” (id. at 2); (2) that appellate counsel did not
agree to include an ineffective assistance of counsel claim in the appeal (id.); (3) Petitioner’s failed
attempts to secure evidence presented in his trial (id.); (4) Petitioner’s difficulty with pursuing his
legal challenge as a “layman of the law” and without funds to retain counsel (id. at 2-3); (5) that the
challenge of locating evidence which “could add credence to Petitioner’s claim of innocence” is an
extraordinary circumstance that prevented him from filing in a timely manner (id. at 3, 7); and (6)
Petitioner’s medical condition that caused him to be hospitalized for several months at some
unspecified time (id. at 4).
Petitioner’s argument fails because his reasons do not establish “‘(1) that he has been
pursuing his rights diligently and (2) that some extraordinary circumstance stood in his way.’”
Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). Petitioner does not qualify for equitable tolling if he does not establish both of these
elements. Id.
First, even if all of Petitioner’s assertions are true, he has failed to show that he has been
diligently pursuing his rights. As the Magistrate Judge noted, Petitioner filed his habeas corpus
petition 16 years after the statutory limitations period expired (R&R, Dkt 7 at 5). “The diligence
required for equitable tolling purposes is ‘reasonable diligence’. . . .” Holland, 560 U.S. at 653
(citing Lonchar v. Thomas, 517 U.S. 314, 326 (1996)). In Holland, the petitioner wrote frequent
letters to his attorney requesting information and giving directions; sought to have his attorney
removed from his case for failing to pursue his legal rights; and immediately prepared and filed his
own habeas petition after learning that his inactive attorney had allowed the limitations period to
expire. Id.
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Here, Petitioner attempts to demonstrate his diligence by stating that “it took all these years
from 2/17/1982 to 7/4/2012 for him to obtaind [sic] all the records, information and discover enough
evidence to prove all the issues and grounds now being presented in this court ….” (Pet., Dkt 1 at
68). Petitioner’s explanation is without merit. Petitioner’s “investigation” seems to consist of letters
from 2001 and 2009 to the Calhoun County Circuit Court Clerk and to his former attorney, as well
as motions filed in state court during 2009, all of which sought information from the trial record that
has always been available to Petitioner (see, e.g., Pet’r Brf. in Support of Ginther Mot. Vol. 2, Exs.
P-5, P-7, Dkt 1-8; Pet. Ex. B-60, Dkt 1-2 at 69). Petitioner did not request this information until
several years after the statute of limitations had expired in 1997. He simply did not show the same
level of persistence or swift action as the petitioner in Holland. Furthermore, neither AEDPA nor
the doctrine of equitable tolling “convey a right to an extended delay while a habeas petitioner
gathers every possible scrap of evidence that might support his claim.” Jurado v. Burt, 337 F.3d
638, 644 (6th Cir. 2003) (citing Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998)); see also
Allen v. Yukins, 366 F.3d 396, 404 (6th Cir. 2004) (seven-month delay in filing habeas petition
“suggests that equitable tolling is inappropriate in this case”). Petitioner has failed to show his
reasonable diligence.
Second, none of Petitioner’s assertions demonstrate that an extraordinary circumstance
prevented him from filing his habeas petition. As the Magistrate Judge stated, “[t]he fact that
Petitioner is untrained in the law, was proceeding without a lawyer, or may have been unaware of
the statute of limitations for a certain period does not warrant tolling.” (R&R, Dkt 7 at 6, citing
Allen, 366 F.3d at 403-04). Even if Petitioner contends that his former attorneys made errors, a
lawyer’s mistake does not generally justify equitable tolling. Jurado, 337 F.3d at 644-45; see also
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Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001) (“In non-capital cases, attorney error,
miscalculation, inadequate research, or other mistakes have not been found to rise to the
‘extraordinary’ circumstances required for equitable tolling.”)). Additionally, Petitioner’s alleged
“several month” hospitalization, even if it occurred before the limitations period expired, is not an
extraordinary circumstance because he had one full year from the effective date of AEDPA (April
24, 1996) in which to file his petition (R&R, Dkt 7 at 3-4). Furthermore, Petitioner’s unsupported,
conclusory allegations, that his attorneys conspired with law enforcement to wrongfully convict him
of murder (See, e.g., Pet., Dkt 1 at 29), do not suffice as evidence of serious attorney misconduct that
might meet the extraordinary circumstances prong. See Holland, 560 U.S. 650-52.
Finally, as a supplemental argument, Petitioner contends that U.S.C. § 2244(d)(1)(B) applies
in this case because he did not have legal assistance in filing his petition (Pet’r Obj., Dkt 14 at 6-7).
Petitioner’s argument is without merit. Under § 2244(d)(1)(B), the one-year limitation period does
not begin to run until an impediment to filing, caused by unconstitutional or unlawful State action,
is removed. Here, there is no evidence of any State action that prevented Petitioner from seeking
the advice of counsel or filing his petition. Therefore, § 2244(d)(1)(B) is irrelevant to Petitioner’s
case. Moreover, as previously stated, a petitioner’s lack of legal knowledge or legal counsel does
not prevent the petitioner from filing a habeas petition. See, e.g., Allen, 366 F.3d at 403-04;
Holland, 560 U.S. at 653.
In sum, Petitioner has not demonstrated that he is entitled to equitable tolling because he has
failed to establish that he has been pursuing his rights diligently and that some extraordinary
circumstance prevented him from filing his habeas petition. The Magistrate Judge properly
concluded that Petitioner’s habeas corpus petition is barred by the statute of limitations.
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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).
“When the district court denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a certificate of appealability 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 be allowed to proceed further.” Id. Upon review, this Court finds that
reasonable jurists would not find the Court’s procedural ruling, that the petition is time barred,
debatable. A certificate of appealability will therefore be denied.
Accordingly:
THEREFORE, IT IS ORDERED that the Objections (Dkt 14) are DENIED and the Report
and Recommendation of the Magistrate Judge (Dkt 7) is APPROVED and ADOPTED as the
Opinion of the Court.
IT IS FURTHER ORDERED that the petition for habeas corpus relief (Dkt 1) is DENIED
for the reasons stated in the Report and Recommendation.
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IT IS FURTHER ORDERED that a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c) is DENIED as to the Court’s procedural ruling that the petition is time barred.
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Dated: December ___, 2014
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
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