Sanders #148207 v. Woods

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION 7 ; 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

SAM SANDERS,
Petitioner,

Case No. 2:15-CV-147

v.

HON. GORDON J. QUIST

JEFF WOODS,
Respondent.
/

ORDER ADOPTING REPORT AND RECOMMENDATION
On November 9, 2015, Magistrate Judge Timothy Greeley issued a Report and
Recommendation (R & R) recommending that the Court deny the habeas petition filed by Petitioner
as time-barred. Petitioner has filed objections to the R & R. Pursuant to 28 U.S.C. § 636(b)(1),
upon receiving objections to an R & R, the district judge “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which objection
is made.” After conducting a de novo review of the R & R, Petitioner’s objections, and the pertinent
portions of the record, the Court concludes that the R & R should be adopted as the Opinion of the
Court.
Petitioner objects to the magistrate judge’s conclusion that he is not entitled to equitable
tolling. The statute of limitations period for Petitioner to file a petition expired on August 26, 2015.
Petitioner asserts that, because he cannot read or write, he contacted the legal writing program in
July 2015 to assist him in preparing his petition. The legal writer believed that Petitioner had
previously filed a petition, however, and filed an application for a second or successive petition with
the Sixth Circuit rather than a petition with this Court. The legal writer did not learn of the mistake

until September 2015—after the statute of limitations deadline had passed—and prepared a new
petition at that time. Petitioner argues that because his delay in filing was due to a mistake on the
part of the legal writer, he is entitled to equitable tolling.
As the Sixth Circuit has noted, a habeas petitioner’s “lack of legal training, his poor
education, or even his illiteracy does not give a court reason to toll the statute of limitations.”
Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002). Moreover, Petitioner’s reliance on the legal
writer, who made a mistake in determining which type of document to file, is insufficient to justify
equitable tolling. See Brown v. Bauman, No. 2:10-cv-264, 2012 WL 1229397, at *9 (W.D. Mich.
Apr. 12, 2012). Although egregious behavior by an attorney may amount to an extraordinary
circumstance that justifies equitable tolling. “a garden variety claim of excusable neglect” by an
attorney does not justify equitable tolling. Holland v. Florida, 560 U.S. 631, 652, 130 S. Ct. 2549,
2564 (2010) (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 458
(1990)). Assuming that a legal writer can be equated with an attorney, an error in determining the
right type of document to file does not rise to the level of misconduct that would justify equitable
tolling. Accordingly, Petitioner is not entitled to equitable tolling.
Certificate of Appealability
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 a petitioner has demonstrated “a
substantial showing of a denial of a constitutional right.” Id. 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

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(2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined 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
reasonable jurists could not find that this Court’s dismissal of Petitioner’s claims was debatable or
wrong. Thus, the Court will deny Petitioner a certificate of appealability.
Therefore,
IT IS HEREBY ORDERED that the Report and Recommendation (dkt. #7) is ADOPTED
as the Opinion of the Court, and Petitioner’s Petition (dkt. # 1) is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Objection to the R & R (Dkt. #8) is
OVERRULED.
A separate judgment will issue.
This case is concluded.

Dated: December 8, 2015

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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