Birge #667967 v. Berghuis

Filing 6

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 4 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil)

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

DONTREL MARQUIS BIRGE,
Petitioner,

Case No. 1:14-CV-439

v.

HON. ROBERT J. JONKER

MARY BERGHUIS,
Respondent,
/
ORDER
APPROVING AND ADOPTING REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge’s Report and Recommendation (docket # 4)
filed on June 9, 2014. Petitioner filed his objections to the Report and Recommendation (docket
# 5) on June 23, 2014.
Under the Federal Rules of Civil Procedure, where, as here, a party has objected to
portions of a Report and Recommendation, “[t]he district judge . . . has a duty to reject the
magistrate judge’s recommendation unless, on de novo reconsideration, he or she finds it
justified. 12 WRIGHT , MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381
(2d ed. 1997). Specifically, the Rules provide that:
The district judge to whom the case is assigned shall make a de
novo determination upon the record, or after additional evidence,
of any portion of the magistrate judge’s disposition to which
specific written objection has been made in accordance with this
rule. The district judge may accept, reject, or modify the
recommended decision, receive further evidence, or recommit the
matter to the magistrate judge with instructions.
FED . R. CIV . P. 72(b). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the
Report and Recommendation itself; and Petitioner’s objections. After its review, the Court finds

that Magistrate Judge Brenneman’s Report and Recommendation is factually sound and legally
correct.
I. Birge’s Objections
The Report and Recommendation carefully examines each of three separate claims
Petitioner makes against the defendant, and finds that they are all barred by the one-year statute
of limitations under 28 U.S.C. § 2244(d)(1). The record shows that the one year limitations
period began to run on December 27, 2011. The period was tolled on February 27, 2012 when
petitioner sought relief from judgment in state court, and began to run again on May 28, 2013
when the Michigan Supreme Court denied his appeal. Thus Petitioner had until March 28, 2014
to file the instant petition. The petition however, was filed April 16, 2014, more than two weeks
after the statute of limitations had run. Petitioner, in his objection, alleges that the Magistrate
Judge was in error in concluding Petitioner was not entitled to equitable tolling because of his
alleged reliance on assertions made by employees of the legal writers program at his place of
incarceration. The Court is not persuaded by Petitioner’s objections. Every court-appointed
counsel is paid with state or federal money too, but their mistakes would not provide a basis for
relief in the instant case. Bad advice – from a lawyer, a prisoner, a legal writing program, or
anyone else is not a basis for equitable tolling. There is no other alleged basis for tolling in this
case.

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 Birge’s claims under the Slack
standard. Under Slack, to warrant a grant of the certificate, “[t]he petitioner must demonstrate
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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 could not find that this Court’s dismissal of Birge’s claims was debatable or
wrong. Thus, the Court will deny Birge a certificate of appealability.
ACCORDINGLY, IT IS ORDERED that Birge’s objections (doc. #5) are overruled.
IT IS FURTHER ORDERED that the Report and Recommendation of the Magistrate
Judge (doc. #4) is approved and adopted as the opinion of the Court.
A separate judgment will issue.
IT IS SO ORDERED.

Dated: August 21, 2014

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

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