Gray #147217 v. Hoffner
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 3 ; Petitioner's Petition for Writ of Habeas Corpus 1 is dismissed; Petitioner is denied a certificate of appealability ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
MICHAEL ALAN GRAY,
CASE NO. 1:15-CV-668
HON. ROBERT J. JONKER
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Kent’s Report and Recommendation (docket # 3)
and Petitioner’s Objections to Report and Recommendation (docket # 7). 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 correctly concluded that Petitioner’s petition is barred by the one-year statute
Petitioner contends that his petition is not time-barred because, in Petitioner’s view, either
tolling under 28 U.S.C. § 2244(d)(2) applies to the period during which Petitioner’s second motion
for relief from judgment was pending, or the filing of the second motion for relief from judgment
rendered the original judgment non-final. Petitioner’s objections fail to deal in a persuasive way
with the Magistrate Judge’s analysis. The Magistrate Judge properly found that tolling under
Section 2244(d)(2) does not apply to the period during which the second motion for relief from
judgment was pending, because Petitioner’s second motion for relief from judgment was not a
“properly filed application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2) (emphasis added); see also Williams v.
Birkett, 670 F.3d 729, 733 (6th Cir. 2012); Rodriguez v. McQuidgen, No. 08-CV-1326, 2009 WL
2742004, at *3 (E.D. Mich. Aug. 25, 2009). To the extent Petitioner asserts that filing a second
motion for relief from judgment rendered the original judgment non-final, Petitioner is simply
mistaken. The petition is time-barred, for precisely the reasons the Report and Recommendation
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner may not
appeal in a habeas corpus case unless a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1). The Federal Rules of Appellate Procedure extend to district judges the
authority to issue certificates of appealability. FED. R. APP. P. 22(b); see also, Castro v. United
States, 310 F.3d 900, 901-02 (6th Cir. 2002) (the district judge “must issue or deny a [certificate
of appealability] if an applicant files a notice of appeal pursuant to the explicit requirements of
Federal Rule of Appellate Procedure 22(b)(1)”). However, a certificate of appealability may be
issued “only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
To obtain a certificate of appealability, Petitioner must demonstrate that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” MillerEl v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
While Petitioner is not required to establish that “some jurists would grant the petition for habeas
corpus,” he “must prove ‘something more than an absence of frivolity’ or the existence of mere
‘good faith.’” Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In this case, Petitioner
has not made a substantial showing of the denial of a constitutional right. Therefore, he is not
entitled to a certificate of appealability.
The Magistrate Judge properly concluded that Petitioner is not entitled to the habeas corpus
relief he seeks. Petitioner is not entitled to a certificate of appealability. Accordingly, IT IS
ORDERED that the Report and Recommendation of the Magistrate Judge (docket # 3) is
APPROVED AND ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that:
Petitioner’s Petition for Writ of Habeas Corpus (docket # 1) is DISMISSED; and
Petitioner is DENIED a certificate of appealability.
March 14, 2016
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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