Gibbs #137358 v. Smith
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 8 ; granting in part and denying in part motion for leave to file excess pages and for extension of time to file further objections 10 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
PAUL D. GIBBS,
Case No. 1:16-cv-570
HON. ROBERT HOLMES BELL
MEMORANDUM OPINION AND ORDER
APPROVING AND ADOPTING REPORT AND RECOMMENDATION
On July 12, 2016, Magistrate Judge Ray Kent issued a Report and Recommendation
(“R&R”) recommending that the Court deny the petition for habeas corpus brought pursuant
to 28 U.S.C. § 2254 because it is barred by the statute of limitations. (R&R, ECF No. 8.)
Petitioner has filed two sets of objections to the R&R.1 (ECF Nos. 9, 12.)
This Court is required to make a de novo review of those portions of a R&R to which
specific objections are made, and may accept, reject, or modify any or all of the Magistrate
Judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
The R&R concludes that the petition is not timely. Pertinent to this memorandum
opinion and order, the statute of limitations required the petition to be filed within a year
from when the judgment of conviction became final, 28 U.S.C. § 2254(d)(1)(A), or within
a year from “the date on which the factual predicate of the claim . . . presented could have
The Court will refer to the second set as supplemental objections.
been discovered through the exercise of due diligence,” id. at § 2244(d)(1)(D). The statute
of limitations under § 2244(d)(1)(A) expired as early as July 9, 2010, a year after Petitioner’s
judgment of conviction became final. (R&R 9.)
According to the R&R, the statute of limitations under § 2244(d)(1)(D) expired no
later than 2013, a year after Petitioner allegedly discovered new evidence in support of his
claim. (R&R 18, referring to evidence discovered in 2010 and 2012.)2 Petitioner did not file
this action until May 2016. Consequently, construing his pleadings generously, his
application is more than two years late.
Petitioner is entitled to equitable tolling if he can show “‘(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and
prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner does not provide sufficient reason for the
substantial delay in filing his motion. In his objections, Petitioner principally relies on the
fact that he did not receive a weather report and a copy of the DNA report from his trial until
recently. As this evidence is not new, its receipt does not trigger a new limitations period, and
does not justify the delay in filing his petition. Moreover, the Court agrees with the analysis
in the R&R that Petitioner’s allegations of a mental condition, confinement in a mental
Petitioner contends that he obtained evidence of weather conditions in 2014 and a copy of
his DNA file in February 2015, but the magistrate correctly determined that the DNA file and
weather report are not “new” for purposes of the statute of limitations in § 2244(d)(1)(D).
facility, and asserted ignorance of the law are unsupported or do not qualify for equitable tolling.
Petitioner also asserts that he qualifies for the “actual innocence” exception to the
statute of limitations, ostensibly relying upon the same evidence mentioned above. To
support a claim of actual innocence, Petitioner must provide new evidence demonstrating
that, in light of all the evidence presented, it is more likely than not that no reasonable juror
would have convicted him. Schlup v. Delo, 513 U.S. 298, 327 (1995). The evidence must be
“new reliable evidence–whether it be exculpatory scientific evidence, trustworthy eyewitness
account, or critical physical evidence–that was not presented at trial.” Id. at 324.
Furthermore, actual innocence means “factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998). Because actual innocence provides an
exception to the statute of limitations rather than a basis for equitable tolling, a petitioner
who can make a showing of actual innocence need not demonstrate reasonable diligence in
bringing his claim, though a court may consider the timing of the claim in determining the
credibility of the new evidence. McQuiggin v. Perkins, 133 S. Ct. 1924, 1936 (2013).
The R&R correctly determined that the DNA report and evidence of the weather are
not “new.” Moreover, the foregoing evidence does not provide strong support for Petitioner’s
innocence. At best, the weather report suggests that it might not have been unusual for
Petitioner to have been wearing a coat and gloves when he returned to the victim’s
apartment; however, his state of dress was somewhat tangential to his guilt or innocence.
Likewise, the DNA report indicates that Petitioner could not be excluded as a donor to a
sample from one part of the alleged murder weapon.3 (See Ex. to Supplemental Objs., ECF
No. 12-2, PageID.211-12.) But this finding does not weigh strongly in favor of Petitioner’s
innocence, particularly in light of other incriminating evidence presented at trial, e.g.: the
paint chips from Petitioner’s truck that were found on the blanket covering the victim’s body;
testimony from two inmates that Petitioner admitted to killing the victim; testimony from
another individual that Petitioner was aware of the victim’s death before the police
discovered her body; security-camera footage of Petitioner walking to the victim’s apartment
on the morning she was killed; and testimony that Petitioner returned to the victim’s
apartment shortly after her disappearance and promised to pick her up from the residence of
an unknown friend but then left the state and did not return. See People v. Gibbs, No.
274003, slip op. at 3-6 (Mich. Ct. App. Sept. 9, 2008) (summarizing evidence).
Petitioner also contends that statements by a witness changed or were mischaracterized by the prosecution at trial. According to Petitioner, the victim’s daughter, who
was seven years old at the time of her mother’s death, initially told the police that she saw
Petitioner pick up the victim and carry her to a white car in the parking lot. (Supplemental
Objs., ECF No. 12, PageID.146-47.) At trial, the prosecutor read the daughter’s testimony
from the preliminary examination, in which she stated that she saw Petitioner pick up her
mother and walk away from the apartment. (Ex. to Supplemental Objs., ECF No. 12-1,
Petitioner focuses on the fact that an expert incorrectly testified that Petitioner’s DNA type
at one particular locus is “7,9.3” and the victim’s DNA type at that locus is “6” (Ex. to Supplemental
Objs., ECF No. 12-2, PageID.218), whereas the reverse is true. (See DNA report, ECF No. 12-2,
PageID.201-02). But the DNA report indicates that both DNA types were found on the murder
weapon. (See DNA report, PageID.201.)
PageID.172.) At the time of trial, however, the victim’s daughter could not recall these
details, but she did affirm that she saw Petitioner and the victim walking to the car. (Id. at
PageID.173.) According to Petitioner, the prosecutor improperly represented to the jury that
the victim’s daughter saw Petitioner pick up the victim from inside the apartment, whereas
Petitioner claims that the victim’s daughter only testified that she saw a man outside walking
with the victim, and assumed that this man was Petitioner. This inconsistency is not new
evidence. It was apparent at the time of trial.
Finally, Petitioner refers to video footage and a store receipt purporting to establish
that he was at a Meijer store around the time that the victim’s daughter claimed to have seen
Petitioner leaving the apartment. The store receipt, dated July 14, 2014 (Id. at PageID.181)
is not new. Indeed, evidence of Petitioner’s presence at Meijer was mentioned at trial. (Id.
at PageID.197.) Neither is the video evidence, as it, too, was discussed at trial. (Id. at
PageID.177.) Thus, Petitioner has failed to provide the requisite new evidence of innocence
to avoid the statute of limitations.4 Consequently, his objections to the R&R will be
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
In his objections, Petitioner initially stated that he needed more time to file exhibits in
support of his objections. (Objs., ECF No. 9, PageID.102.) He subsequently withdrew his request
for more time when filing the supplement to his objections. (See ECF No. 11.) In his supplement,
he suggests that there is other evidence unavailable to him which is part of the file that he submitted
to the state court. (Supplemental Objs., ECF No. 12, PageID.159.) He does not explain what this
evidence might be or indicate how it would demonstrate actual innocence, which is his burden to
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
Court’s dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases
is a determination that the habeas action, on its face, lacks sufficient merit to warrant service.
It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth
Circuit Court of Appeals that an issue merits review, when the Court has already determined
that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952
F.2d 10 (1st Cir. 1991) (it is “somewhat anomalous” for the court to summarily dismiss under
Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring
reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v.
Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was “intrinsically
contradictory” to grant a certificate when habeas action does not warrant service under Rule
4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would
be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a
certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (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. Under Slack, 529 U.S. at 484, 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.” Id. “A petitioner satisfies this standard by
demonstrating that . . . jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
The Court finds that reasonable jurists would not conclude that this Court’s dismissal
of the petition as barred by the statute of limitations as debatable or wrong. Therefore, the
Court will deny Petitioner a certificate of appealability.
IT IS HEREBY ORDERED that Petitioner’s objections (ECF Nos. 9, 12) are
IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 8)
is APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that the petition under § 2254 (ECF No. 1) is
IT IS FURTHER ORDERED that the motion for leave to file excess pages and for
extension of time to file further objections (ECF No. 10) is GRANTED IN PART and
DENIED IN PART. It is granted insofar as Petitioner’s objections exceed any page limits.
It is denied insofar as Petitioner seeks additional time.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
Dated: August 9, 2016
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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