Perkins #233916 v. McQuiggin

Filing 11

OPINION ADOPTING REPORT AND RECOMMENDATION 7 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION F L O Y D PERKINS, P e titio n e r, v. G. McQUIGGIN, R e sp o n d e n t. _________________________________/ O P I N IO N ADOPTING REPORT AND RECOMMENDATION T h is is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The matter was ref erre d to the Magistrate Judge, who issued a Report and Recommendation ("R&R"), rec o m m en d in g that this Court deny the petition (docket #7). The matter presently is before th e Court on Petitioner's objections to the R&R (docket #8). For the reasons that follow, P e titio n e r's objections are rejected and the R&R is adopted, as clarified by the instant O p in io n . I. T h i s Court reviews de novo those portions of an R&R to which specific objections are m a d e . 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). See also U.S. Fidelity and Guar. Co. v . Thomas Solvent Co., 955 F.2d 1085, 1088 (6th Cir. 1992) (noting that a district court c o n d u c ts de novo review of magistrate judge's rulings on dispositive motions); Miller v. C u rr ie , 50 F.3d 373, 380 (6th Cir. 1995) ("[A] general objection to a magistrate's report, w h ic h fails to specify the issues of contention, does not satisfy the requirement that an F I L E NO. 2:08-CV-139 H O N . ROBERT HOLMES BELL

o b jectio n be filed. The objections must be clear enough to enable the district court to discern th o s e issues that are dispositive and contentious."). The Court may accept, reject or modify a n y or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1). II. P e titio n e r was convicted of murder by a Genessee County jury and was sentenced to lif e imprisonment on October 27, 1993. The Magistrate Judge recommended that the petition b e dismissed because it was barred by the statute of limitations. Petitioner has filed lengthy o b je c tio n s to the R&R. While he does not dispute that his petition is untimely, he contends th a t he should be entitled to equitable tolling because he has raised a claim of actual in n o c e n ce . P e titio n e r's application is barred by the one-year statute of limitations provided in 28 U .S .C . § 2244(d)(1), which became effective on April 24, 1996, as part of the Antiterrorism a n d Effective Death Penalty Act, PUB. L. NO. 104-132, 110 STAT. 1214 ("AEDPA"). Section 2 2 4 4 ( d )( 1 ) provides: (1 ) A 1-year period of limitation shall apply to an application for a writ of h a b e a s corpus by a person in custody pursuant to the judgment of a State court. T h e limitation period shall run from the latest ofS (A ) the date on which the judgment became final by the conclusion of direct re v ie w or the expiration of the time for seeking such review; (B ) the date on which the impediment to filing an application created by State a c tio n in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C ) the date on which the constitutional right asserted was initially recognized 2

b y the Supreme Court, if the right has been newly recognized by the Supreme C o u rt and made retroactively applicable to cases on collateral review; or (D ) the date on which the factual predicate of the claim or claims presented c o u ld have been discovered through the exercise of due diligence. 2 8 U.S.C. § 2244(d)(1). The running of the statute of limitations is tolled when "a properly f ile d application for State post-conviction or other collateral review with respect to the p e rtin e n t judgment or claim is pending." 28 U.S.C. § 2244(d)(2); see also Duncan v. W a lk e r, 533 U.S. 167, 121 S. Ct. 2120 (2001) (limiting the tolling provision to only State, a n d not Federal, processes); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (defining "properly f i le d " ) . T h e Magistrate Judge concluded that § 2244(d)(1)(A) provides the period of limitation in this case and that the other subsections do not apply to the grounds that Petitioner has ra is e d . Under § 2244(d)(1)(A), the one-year limitation period runs from "the date on which th e judgment became final by the conclusion of direct review or the expiration of the time f o r seeking such review." Petitioner appealed his conviction to the Michigan Court of A p p e a ls and Michigan Supreme Court. The Michigan Supreme Court denied his application o n February 3, 1997. Petitioner did not petition for certiorari to the United States Supreme C o u rt. The one-year limitations period, however, did not begin to run until the ninety-day p e rio d in which Petitioner could have sought review in the United States Supreme Court had e x p ire d . The ninety-day period expired on Monday, May 5, 1997. The statute of limitations b e g a n running that date and expired on May 5, 1998. The petition was not filed until 2008,

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te n years after the statute of limitations expired. The Magistrate Judge concluded, therefore, th a t , absent equitable tolling, the petition was time-barred. The Magistrate Judge also c o n c lu d e d that equitable tolling was unwarranted on the facts of the case. P e titio n e r objects to the R&R, contending that he is entitled to equitable tolling b e c au s e he has raised a credible claim of actual innocence. He also vaguely suggests that the s ta tu te of limitations should be calculated under 28 U.S.C. 2244(d)(1)(D), from the date on w h ic h "the factual predicate of the claim or claims presented could have been discovered th r o u g h the exercise of due diligence." To the extent Petitioner suggests that the statute of limitations should be calculated u n d e r § 2244(d)(1)(D), he puts forward the affidavits of Ronda Hudson, Demond Louis and L in d a Fleming, all of whom make averments related to the likelihood that the government's k e y eyewitness was the actual murderer. (See Hudson Aff., docket #8 at 10; Louis Aff., d o c k e t #6 at 16; Fleming Aff., docket #6-2 at 12.) Those affidavits are unhelpful to P e titio n e r. First, the affidavit of Ronda Hudson was signed on January 30, 1997, before his c o n v ic tio n became final. Demond Louis' affidavit was signed on March 16, 1999. Linda F lem in g 's affidavit was signed on July 16, 2002. Even assuming that the affidavits contain n e w ly discovered evidence, a dubious conclusion in light of Petitioner's admitted knowledge a b o u t the underlying facts involving these possible witnesses at the time of trial, his petition re m a in s untimely under § 2244(d)(1)(D). Assuming that the statute of limitations began to ru n as of the date of the latest of these affidavits, July 16, 2002, absent tolling, Petitioner had

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u n til July 16, 2003 in which to file his habeas petition. He did not file until June 2008. M o re o v e r, according to the allegations of the amended complaint, Petitioner did not file any p o s t- c o n v i c tio n motion after that date that could have tolled the statute of limitations. As a re su lt, absent equitable tolling, Petitioner's claim is time-barred. A petitioner bears the burden of showing that he is entitled to equitable tolling. See A lle n v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004); Jurado v. Burt, 337 F.3d 638, 642 (6th C ir. 2003); Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). The Sixth Circuit has re p e a te d ly cautioned that equitable tolling should be applied "sparingly" by this Court. See J u ra d o , 337 F.3d at 642; Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002); Dunlap, 250 F .3 d at 1008-1009. In Pace v. DiGuglielmo, 544 U.S. 408, 418-19 (2005), the Supreme C o u rt held that a petitioner seeking equitable tolling of the habeas statute of limitations has th e burden of establishing two elements: "(1) that he has been pursuing his rights diligently, a n d (2) that some extraordinary circumstance stood in his way." Id. at 418 (applying standard s e t forth in Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). P e titio n e r generally claims that he is actually innocent of the offenses for which he w a s convicted. The Sixth Circuit has held that a habeas petitioner who demonstrates a c r e d ib l e claim of actual innocence based on new evidence may, in exceptional circumstances, b e entitled to equitable tolling of habeas limitations. See McCray v. Vasbinder, 499 F.3d 5 6 8 , 571 (6th Cir. 2007); Souter v. Jones, 395 F.3d 577, 597-98 (6th Cir. 2005). Petitioner, h o w e v e r , fails to present such exceptional circumstances.

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T o support a claim of actual innocence, a petitioner must demonstrate that, in light of a ll the evidence, it is more likely than not that no reasonable juror would have convicted him. S o u te r, 395 F.3d at 590, 598-99; Bousley v. United States, 523 U.S. 614, 623 (1998); Allen, 3 6 6 F.3d at 405. A valid claim of actual innocence requires a petitioner "to support his alleg atio n s of constitutional error with new reliable evidence ­ whether it be exculpatory s c ie n tif ic evidence, trustworthy eyewitness account, or critical physical evidence ­ that was n o t presented at trial." Schlup v. Delo, 513 U.S. 298, 324 (1995). Furthermore, actual in n o c e n c e means "factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 6 2 3 . A petitioner "must produce evidence of innocence so strong that the court can not have c o n f id e n c e in the outcome of the trial unless the court is also satisfied that the trial was free o f nonharmless constitutional error." Allen, 366 F.3d at 405 (internal quotations and citations o m itte d ). Petitioner has made no such showing in this case. His alleged newly discovered e v id e n c e was substantially available to him at trial. While the precise contours of the a f f id a v its may have been new as of 1997, 1999 and 2002, one theory of the defense at trial w a s that Petitioner was being framed by the prosecution's lead witness, who himself was resp o n sible for the murder. M o re o v e r, nothing about the Sixth Circuit's recognition of actual innocence as a basis f o r equitable tolling suggests that such evidence will indefinitely toll the statute of lim ita tio n s . Instead, The Supreme Court has clearly indicated that equitable tolling,

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re g a rd le ss of its basis, always requires the petitioner to demonstrate that he has acted d ilig e n tly to pursue his rights. See Pace, 544 U.S. at 418. Petitioner has failed utterly to d e m o n s tra te the necessary diligence in exercising his rights. By July 2002, Petitioner had a c q u ire d all of the evidence that he recites to support his actual innocence, yet he waited until J u n e 2008 to bring his claim before any court. Such a delay falls far short of demonstrating the requisite diligence. As a result, Petitioner has failed to demonstrate that his is the "rare a n d extraordinary case," Souter, 395 F.3d at 590, in which evidence of actual innocence s h o u ld toll the statute of limitations. I I I. H av in g considered each of Petitioner's objections and finding no error, the Court h e re b y denies Petitioner's objections and adopts the Report and Recommendation of the M a g is tra te Judge, as clarified by this Opinion. Under 28 U.S.C. § 2253(c)(2), the Court also must determine whether a certificate of a p p e ala b ility should be granted. A certificate should issue if Petitioner has demonstrated a "s u b sta n tial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth C irc u it Court of Appeals has disapproved issuance of blanket denials of a certificate of a p p e a la b ility. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "e n g a g e in a reasoned assessment of each claim" to determine whether a certificate is w a rra n te d under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S.

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4 7 3 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of P e titio n e r's claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the certificate, "[t]he petitioner m u s t demonstrate that reasonable jurists would find the district court's assessment of the c o n s titu t io n a l claims debatable or wrong." Id. "A petitioner satisfies this standard by d e m o n s tra ti n g that . . . jurists could conclude the issues presented are adequate to deserve e n c o u r a g e m e n t to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In a p p lyin g this standard, the court may not conduct a full merits review, but must limit its e x a m in a tio n to a threshold inquiry into the underlying merit of petitioner's claims. Id. This Court denied Petitioner's application on the procedural grounds that it was barred b y the statute of limitations. Under Slack, 529 U.S. at 484, when a habeas petition is denied o n procedural grounds, a certificate of appealability may issue only "when the prisoner s h o w s , at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Both showings m u s t be made to warrant the grant of a certificate. Id. The Court finds that reasonable jurists c o u ld not debate that this Court correctly dismissed each of Petitioner's claims on the p ro c e d u ra l ground that the petition is barred by the statue of limitations. "Where a plain p ro c e d u ra l 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

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p e t itio n or that the petitioner should be allowed to proceed further." Id. Therefore, the Court d e n ie s Petitioner a certificate of appealability. A Judgment consistent with this Opinion shall be entered.

Dated: June 18, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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