Murray #245927 v. Capello

Filing 11

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 10 and denying motion to remand 3 ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

JEFFREY CLYDE MURRAY #245927,
Petitioner,
v.

Case No. 2:11-cv-17
HON. R. ALLAN EDGAR

GARY CAPELLO,
Respondent.
_____________________________________/

MEMORANDUM AND ORDER

Petitioner Jeffrey Clyde Murray, a Michigan state prisoner in the custody of the Michigan
Department of Corrections, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254.
The case was referred to Magistrate Judge Timothy P. Greeley for a report and recommendation.
On June 3, 2011, Magistrate Judge Greeley submitted his report recommending that the
habeas petition be denied and dismissed with prejudice on the ground that it is time-barred by the
one-year statute of limitations in 28 U.S.C. § 2244(d)(1). [Court Doc. No. 10]. It is further
recommended that a certificate of appealablity be denied under 28 U.S.C. § 2253(c)(2). Petitioner
Murray has not timely filed an objection.
After reviewing the record, the Court ACCEPTS and ADOPTS the report and
recommendation pursuant to 28 U.S.C. § 636(b)(1) and W.D. Mich. LCivR 72.3(b). The Court
concludes that the petition for writ of habeas corpus brought under 28 U.S.C. § 2254 shall be

1

DENIED and DISMISSED WITH PREJUDICE on the ground that it is time-barred by the oneyear statute of limitations in 28 U.S.C. § 2244(d)(1). Petitioner Murray has not met his burden of
showing that he is entitled to equitable tolling of the statute of limitations.
On January 13, 2011, this Court received from petitioner Murray a separate “motion to
remand” his case to the Michigan state trial court, i.e. the Circuit Court of Genessee County,
Michigan. The motion to remand [Court Doc. No. 3] is DENIED.
If petitioner Murray files a notice of appeal, it will be treated as an application for a certificate
of appealability which shall be DENIED pursuant to 28 U.S.C. § 2253(c)(2); Fed. R. App. P.
22(b)(1); and Slack v. McDaniel, 529 U.S. 473, 484 (2000) for the same reasons expressed in the
report and recommendation. Reasonable jurists could not find it debatable whether the habeas
petition has been properly dismissed on the ground that it is time barred the statute of limitations in
28 U.S.C. § 2244(d)(1).
A separate judgment will enter.
SO ORDERED.
Dated: June 24, 2011.

/s/

R. Allan Edgar
R. ALLAN EDGAR

UNITED STATES DISTRICT JUDGE

2