Lay #428825 v. Smith
Filing
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OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 3 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN DAVID LAY,
Petitioner,
Case No. 1:17-cv-913
v.
HON. JANET T. NEFF
WILLIE O. SMITH,
Respondent.
____________________________/
OPINION AND ORDER
This is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The matter was referred
to the Magistrate Judge, who issued a Report and Recommendation (R&R) recommending that
this Court deny the petition as barred by the statute of limitations. The matter is presently before
the Court on Petitioner’s objections (ECF No. 4) to the Report and Recommendation (ECF No. 3).
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(3), the Court has performed
de novo consideration of those portions of the Report and Recommendation to which objections
have been made. The Court denies the objections and issues this Opinion and Order. The Court
will also issue a Judgment in this § 2254 proceeding. See Gillis v. United States, 729 F.3d 641,
643 (6th Cir. 2013) (requiring a separate judgment in habeas proceedings).
Petitioner first asserts he “was unaware of any avenue for relief, until an inmate legal writer
noticed this issue” (ECF No. 4 at PageID.58-9). Petitioner’s apparent argument is that this recent
discovery revives the one-year statute of limitations pursuant to § 2244(d)(1)(D). This argument
is without merit. Petitioner fails to present any facts that support a finding that subsection (D)
applies. Further, Petitioner fails to offer any grounds or support to show that subsection (A) does
not apply. Petitioner therefore reveals no error in the Magistrate Judge’s conclusion that the
limitations period ran from “the date on which the judgment became final by the conclusion of
direct review or the expiration of time for seeking such review,” 28 U.S.C. § 2244(d)(1)(A), and
that Petitioner had one year from October 27, 2004 in which to file his habeas corpus application
(R&R, ECF No. 3 at PageID 53).
Petitioner also argues that “it would be a miscarriage of justice to allow a conviction to
stand where there is such a constitutional claim” (ECF No. 4 at PageID.59, citing Murray v.
Carrier, 477 U.S. 478 (1986)). Petitioner has not cited to any portion of Murray that advances his
objections. To the extent Petitioner refers to the miscarriage-of-justice exception to the statute of
limitations, the Magistrate Judge previously addressed such an argument in the Report and
Recommendation (ECF No. 3 at PageID.55), and Petitioner has not proffered any new claims or
evidence in support of the exception.
Finally, Petitioner argues that the limitations issue was improperly raised sua sponte by the
Magistrate Judge and “should have been an argument brought by the Attorney General” (ECF No.
4 at PageID.59). However, the Magistrate Judge is obligated to conduct a preliminary review of
§ 2254 petitions to determine if “it plainly appears form the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court.”
RULES
GOVERNING § 2254 CASES, Rule 4. See also Day v. McDonough, 547 U.S. 198, 209 (2006)
(holding that district courts may consider, sua sponte, the timeliness of a habeas action).
Having determined that Petitioner’s objections lack merit, the Court must further determine
pursuant to 28 U.S.C. § 2253(c) whether to grant a certificate of appealability as to the issues
raised. See RULES GOVERNING § 2254 CASES, Rule 11 (requiring the district court to “issue or
deny a certificate of appealability when it enters a final order”). The Court must review the issues
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individually. Slack v. McDaniel, 529 U.S. 473 (2000); Murphy v. Ohio, 263 F.3d 466, 466-67 (6th
Cir. 2001).
“When the district court denies a habeas petition on procedural grounds without reaching
the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at
least, that jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack, 529 U.S. at 484. “Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or that the petitioner
should be allowed to proceed further.” Id. Upon review, this Court finds that reasonable jurists
would not find the Court’s procedural ruling debatable. A certificate of appealability will therefore
be denied.
Accordingly:
IT IS HEREBY ORDERED that the Objections (ECF No. 4) are DENIED and the Report
and Recommendation of the Magistrate Judge (ECF No. 3) is APPROVED and ADOPTED as the
Opinion of the Court.
IT IS FURTHER ORDERED that the petition for habeas corpus relief (ECF No. 1) is
DENIED for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c) is DENIED as to each issue asserted.
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
Dated: October 10, 2018
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