Anthony #660099 v. Napel

Filing 9

ORDER REJECTING REPORT AND RECOMMENDATION 5 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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

DEANGELO ANTHONY #660099,
Petitioner,
Case No. 2:12-CV-251
v.
HON. ROBERT HOLMES BELL
ROBERT NAPEL,
Respondent.
/
MEMORANDUM OPINION AND ORDER
On June 18, 2012, Petitioner Deangelo Anthony filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) On August 7, 2012, Magistrate Judge
Timothy P. Greeley issued a report and recommendation (“R&R”) recommending that this
action be dismissed. This matter is before the Court on Petitioner’s objection to the R&R.
(Dkt. No. 6.)
This Court makes a de novo determination of those portions of an R&R to which
specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). “[A] general
objection to a magistrate’s report, which fails to specify the issues of contention, does not
satisfy the requirement that an objection be filed. The objections must be clear enough to
enable the district court to discern those issues that are dispositive and contentious.” Miller
v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). The Court may accept, reject, or modify any or
all of the Magistrate Judge’s findings or recommendations. Id.

Petitioner’s sole objection is that the Magistrate Judge erred in concluding that the
§ 2254 petition was time barred by the one year statute of limitations. According to
Petitioner, the Magistrate Judge incorrectly concluded that the statute of limitations began
running on February 10, 2011. Petitioner contends that the statute of limitations instead
began running on June 28, 2011.
The one-year limitations period runs from “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner’s appeal to the Michigan Court of Appeals
was denied on December 16, 2010. The Magistrate Judge concluded that Petitioner did not
seek further review of the underlying judgment by the Michigan Supreme Court and thus
concluded that the limitations period began to run on February 10, 2011, which was when
Petitioner’s 56 day period for seeking review in the Michigan Supreme Court expired. (Dkt.
No. 5, at 3 (citing Mich. Ct. Rule 7.302(c)(2)).) These conclusions were unwarranted. As
Petitioner noted in his habeas petition (and as evidenced by a letter attached to his present
objection), he filed an application for leave to appeal the decision of the Michigan Court of
Appeals on February 9, 2011. (Dkt. No. 1, at ¶ 9(g); Dkt. No. 6, Ex. B.) This application
was denied on June 28, 2011. (Dkt. No. 1, at ¶ 9(g); Dkt. No. 6, Ex. C.) Consequently, the
statute of limitations did not begin running until June 28, 2011, and the present action, filed
on June 18, 2012, is timely. See 28 U.S.C. § 2244(d)(1)(A).
Accordingly,

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IT IS HEREBY ORDERED that the Magistrate Judge’s August 7, 2012 R&R (Dkt.
No. 5) is REJECTED.

Dated: August 20, 2013

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

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