Cloy #195877 v. McKee

Filing 12

ORDER ADOPTING REPORT AND RECOMMENDATION 9 : Petitioner's petition and certificate of appealability are DENIED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

ROBERT LEE CLOY,
Petitioner,
v.

Case No. 1:15-CV-286

KENNETH MCKEE,

HON. GORDON J. QUIST

Respondent.
_________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner, Robert Lee Cloy, has filed Objections to Magistrate Ellen S. Carmody’s May 14,
2015 Report and Recommendation (R & R) (dkt. # 9), in which the magistrate judge recommends
that the Court deny the habeas corpus petition. Pursuant to 28 U.S.C. § 636(b)(1), upon receiving
objections to a report and recommendation, the district judge “shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which objection
is made.” After conducting a de novo review of the R & R and Petitioner Objections, the Court will
adopt the R & R and overrule Petitioner’s Objections.
Petitioner was convicted by a jury in Berrien County Circuit Court on September 16, 2002.
He did not file an appeal. On October 13, 2012—ten years after his conviction—Petitioner filed a
motion for relief from judgment in the circuit court, which was denied. Thereafter, Petitioner sought
leave to appeal to the Michigan Court of Appeals and the Michigan Supreme Court, but those
requests were denied. Petitioner filed a habeas petition in this Court on April 24, 2015.

A habeas petitioner must file a petition within one year of the date on which the conviction
became final. See 28 U.S.C. § 2244(d)(1). In this case, Petitioner’s conviction became final upon
the deadline for seeking appeal of his conviction—September 16, 2003. Petitioner did not file his
habeas petition until more than ten years later.
Petitioner’s argument that the one-year clock began to run only after he exhausted the
appeals on his post-conviction motion is unavailing. When Petitioner filed his motion for relief
from judgment, the period for filing a habeas petition had already expired, and was not restarted by
the filing of that motion. See Grayson v. Grayson, 185 F. Supp. 2d 747, 750 (E.D. Mich. 2002) (“A
state court post-conviction motion that is filed following the expiration of the limitations period for
seeking federal habeas relief cannot toll that period because there is no period remaining to be
tolled.”). Thus, the one-year period for filing had expired long before Petitioner filed his petition.
Petitioner’s argument that he is entitled to equitable tolling fares no better. A petitioner
seeking equitable tolling must demonstrate (1) that he has pursued his rights diligently; and (2) that
an extraordinary circumstance stood in the way. See Holland v. Florida, 560 U.S. 631, 649 (2010).
Even if Petitioner’s appellate counsel were to blame for the failure to file an appeal, Petitioner could
not demonstrate that he diligently pursued his rights. Petitioner did not file a post-conviction motion
in state court until more than 10 years after his conviction, and more than seven years after his
appellate attorney was removed from his case. Because Petitioner’s actions do not demonstrate due
diligence, he is not entitled to equitable tolling.
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
2

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, 120 S. Ct. 1595
(2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined Petitioner’s claims under
the Slack standard.
Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, 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.” For the reasons stated above, the Court finds that
reasonable jurists could not find that this Court’s dismissal of Petitioner’s claims was debatable or
wrong. Thus, the Court will deny Petitioner a certificate of appealability.
Therefore,
IT IS HEREBY ORDERED that the Report and Recommendation issued May 14, 2015
(dkt. #9) is ADOPTED as the Opinion of the Court, and Petitioner’s Petition (dkt. #1) is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Objections to the R & R (dkt. #10) are
OVERRULED.
This case is concluded.
A separate judgment will issue.

Dated: July 20, 2015

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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