Johnson #646193 v. Berghuis

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATION 6 ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________
GREGORY DARRYL JOHNSON, JR.,
Petitioner,
v.

Case No. 1:15-CV-655

MARY BERGHUIS,

HON. GORDON J. QUIST

Respondent.
_______________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner, Gregory Darryl Johnson, Jr., has filed an Objection to Magistrate Hugh W.
Brenneman’s July 14, 2015 Report and Recommendation (R & R) (dkt. # 6), 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’s Objection, the Court will adopt the R & R and overrule Petitioner’s Objection.
Petitioner pled guilty to a drug crime in Ottawa County Circuit Court. On November 28,
2011, the trial court sentenced Petitioner. He did not appeal his conviction. On January 30, 2014,
Petitioner filed a motion for relief from judgment in the trial court. 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 June 17, 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—May 28, 2012. Thus, he had until May 28, 2013
to file a petition in this Court. However, he did not file anything attacking his conviction—in this
Court or state court—until January 30, 2014.

Petitioner argues that he could not file an appeal because his appellate attorney withdrew and
the trial court did not appoint him a new attorney. Petitioner contends that any delay in filing was
attributable to the denial of his right to counsel, and that he could not be expected to litigate his case
or follow procedural rules without the assistance of counsel. Although he does not label it as such,
the Court construes this as an argument for equitable tolling.
Pursuant to the doctrine of equitable tolling, a court may excuse late-filed habeas claims in
appropriate circumstances. McCray v. Vasbinder, 499 F.3d 568, 571 (6th Cir. 2007) (citing Souter
v. Jones, 395 F.3d 577, 588 (6th Cir. 2005)). Equitable tolling is “available only in compelling
circumstances which justify a departure from established procedures.” Puckett v. Tenn. Eastman
Co., 889 F.2d 1481, 1488 (6th Cir. 1989). The doctrine is “used sparingly by federal courts.
‘Typically, equitable tolling applies only when a litigant’s failure to meet a legally-mandated
deadline unavoidably arose from circumstances beyond the litigant’s control.’” Jurado v. Burt, 337
F.2d 638, 642 (6th Cir. 2003) (quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc.,
209 F.3d 552, 560–61 (6th Cir. 2000)) (citations omitted). “[A] ‘petitioner’ is ‘entitled to equitable
tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560
U.S. 631, 649, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125
S. Ct. 1807, 1814 (2005)).
Petitioner cannot demonstrate that he diligently pursued his rights. He waited over two years
after he was sentenced to file anything attacking his conviction. Moreover, Petitioner is not excused
from following procedural rules simply because he did not have counsel. On the contrary, the Sixth
Circuit has held that ignorance of the law alone does not warrant equitable tolling. See Griffin v.
Rogers, 399 F.3d 626, 637 (6th Cir. 2005); Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004). In
short, Petitioner cannot satisfy either of the necessary grounds for equitable tolling.

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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, 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 July 14, 2015
(dkt. #6) is ADOPTED as the Opinion of the Court, and Petitioner’s Petition (dkt. #1) is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Objection to the R & R (dkt. #7) is
OVERRULED.
This case is concluded.
A separate judgment will issue.

Dated: July 30, 2015

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

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