Campbell #606316 v. Woods
Filing
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MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 12 re 10 : Petitioner's Objections 13 are OVERRULED and Petitioner's petition 10 and certificate of appealability are DENIED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
__________________________
JOSEPH AVERON CAMPBELL,
Petitioner,
v.
Case No. 2:11-CV-00015
JEFFREY WOODS,
HON. GORDON J. QUIST
Respondent.
__________________________/
MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. The
Magistrate Judge issued a Report and Recommendation July 26, 2011, recommending that the
petition be denied as barred by the one-year statute of limitations set forth in 28 U.S.C. § 2254(d).
Petitioner has filed objections.
Having conducted a de novo review of the Report and
Recommendation and Petitioner’s objections thereto, the Court concludes that the Report and
Recommendation should be adopted.
As set forth in the Report and Recommendation, the one-year statute of limitations began
to run on February 23, 2009, ninety days after the November 25, 2008, order of Michigan Supreme
Court denying Petitioner’s application for leave to appeal. Thus, Petitioner had until February 23,
2010 to file his habeas application, but did not do so until January 13, 2011. Petitioner asserts that
he is entitled to equitable tolling because he did not receive the Michigan Supreme Court’s
November 2008, order until March 2010, approximately one month after he wrote a letter to the
clerk of the court asking for an update on his case. The Court agrees with Magistrate Judge that
Petitioner is not entitled to equitable tolling. To begin, Petitioner filed his application for leave to
appeal to the Michigan Supreme Court on May 23, 2008, but did not seek to determine the status
of that appeal until more than year and half later. Even after he learned that the Michigan Supreme
Court had denied his appeal, in March of 2010, he waited another ten months before filing this
petition. Petitioner’s objections provide no justification for either delay. Because Petitioner failed
to monitor the status of his appeal and to diligently pursue his § 2254 relief, equitable tolling is not
appropriate. Elliot v. Dewitt, 10 F. A’ppx 311, 313 (6th Cir. 2001); see also Coleman v. Johnson,
184 F.3d 398, 403 (5th Cir. 1999) (denying equitable tolling where the petitioner waited six months
after learning that his state petition had been denied, explaining that he “should have attempted to
expediently file his federal habeas petition upon receiving notice that his state petition had been
denied”).
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 Petitioner has demonstrated a
"substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). 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 each of
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
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reasonable jurists could not find that this Court’s denial of Petitioner’s claims was debatable or
wrong. Thus, the Court will deny Petitioner a certificate of appealability. Accordingly,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
issued July 26, 2011 (docket no. 12) is APPROVED AND ADOPTED as the Opinion of the Court
and Petitioner’s Objections To Report And Recommendation Of United States Magistrate Judge
Timothy P. Greeley (docket no. 13) are OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s habeas corpus petition is DENIED as
barred by the one-year statute of limitations.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED by this
Court.
This case is concluded.
Dated: August 24, 2011
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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