Henson v. Warden, Lebanon Correctional Institution

Filing 25

ORDER adopting Report and Recommendations re 20 Report and Recommendation; declining to adopt 23 Report and Recommendation; a certificate of appealability shall issue on a limited question of whether Petitioner is entitled to equitable tolling of the ADEPA one-year statute of limitations. Signed by Judge Michael R. Barrett on 7/23/14. (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DERRYCK HENSON,

CASE NO.: 1:12-CV-602

PETITIONER,

BARRETT, J.
MERZ, M.J.

v.
WARDEN, LEBANON CORRECTIONAL
INSTITUTION,
RESPONDENT.
ORDER
This matter is before the Court on the November 21, 2013 Report and Recommendation
(Doc. 20) and the December 27, 2013 Supplemental Report and Recommendation of the
Magistrate Judge. (Doc. 23).
Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including
notice that the parties may forfeit rights on appeal if they failed to file objections to the
Supplemental Report and Recommendation in a timely manner. United States v. Walters, 6348
F.2d 947 (6th Cir. 1981). The Respondent filed objections to the November 21, 2013 Report and
Recommendation (Doc. 21), but no objections have been filed to the December 27, 2013
Supplemental Report and Recommendation.
I.

BRIEF BACKGROUND
On October 11, 2013, the Magistrate Judge issued a Report and Recommendation in

which he recommended that the petition be dismissed with prejudice on statute of limitations
grounds. (Doc. 11). The Report recommended, however, that Petitioner be granted a certificate
of appealability on the issue of equitable tolling because the law of equitable tolling remains in
development. (Doc. 11). As no objections were filed, the undersigned adopted the Report and
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dismissed the petition with prejudice. (Doc. 12). In doing so, the undersigned indicated that a
certificate of appealability should issue if Petitioner appealed the decision. (Id.).
Subsequent to that Order, Petitioner's counsel sought to withdraw from the case. (Doc.
14). By notation order, counsel was advised that he needed to take appropriate steps to protect
his client's right to appeal by filing (1) a notice of appeal, (2) a motion for certificate of
appealability, and (3) an application to proceed on appeal in forma pauperis, if appropriate. In
this Court, Petitioner's counsel filed his notice of appeal (Doc. 15), a motion for certificate of
appealability (Doc. 18), and a motion for leave to appeal in forma pauperis (Doc. 19).
As is relevant here, the Magistrate Judge issued a Report and Recommendation
recommending (consistent with the undersigned's prior order) that the certificate of appealability
issue on the limited question of whether Petitioner was entitled to equitable tolling of the
AEDPA one-year statute of limitations. (Doc. 20). At that time, the Respondent objected on the
grounds that Petitioner failed to preserve his right to appeal by failing to object to the Report.
(Doc. 23). The Magistrate Judge agreed, relying on Souter v. Jones, 395 F.3d 577, 585-86 (6th
Cir. 2005). (Doc. 23, PageID 1298).
II.

ANALYSIS
Having reviewed the issue presented, the Court holds that a certificate of appealability

should issue. As the undersigned and the Magistrate Judge both have recognized, Petitioner has
made the requisite showing for the issuance of a certificate of appealability on the limited issue
of whether he was entitled to equitable tolling of the AEDPA one-year statute of limitations. See
28 U.S.C. § 2253. Whether Petitioner objected or failed to object to the Report does not change
that determination, as the standards for a waiver and the standards for issuance of a certificate of
appealability, though related, are substantively distinct from one another. See Carson v. Hudson,

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421 F. App'x 560, 563-64 (6th Cir. 2011) (issuing a certificate of appealability and then
considering whether the petitioner's failure to object to the Report constituted a waiver) (citing
Souter v. Jones, 395 F.3d 577, 585-86 (6th Cir. 2005)). Indeed, a certificate of appealability may
still issue even when a waiver may have occurred. See id. As the Sixth Circuit has recognized,
a waiver for failure to object "'plainly is not a jurisdictional rule; the court of appeals retains
subject matter jurisdiction over the appeal regardless of the untimely filing or nonfiling of
objections.'" Souter, 395 F.3d at 585 (quoting Kent v. Johnson, 821 F.2d 1220, 122 (6th Cir.
1987)). The Sixth Circuit may excuse any default in failing to object if it determines it is within
the interests of justice to do so. Id. (citing Thomas v. Arn, 474 U.S. 140, 155 (1985)). As such,
the undersigned believes that the question of waiver is more appropriately addressed by the Sixth
Circuit on appeal and that it does not preclude the issuance of a certificate of appealability in this
matter.
III.

CONCLUSION
For the foregoing reasons, the undersigned ADOPTS the recommendation in the

November 21, 2013 Report (Doc. 20) and DECLINES TO ADOPT the recommendation in the
December 27, 2013 Supplemental Report (Doc. 23). A certificate of appealability shall issue on
the limited question of whether Petitioner is entitled to equitable tolling of the AEDPA one-year
statute of limitations.
IT IS SO ORDERED.
s/Michael R. Barrett
JUDGE MICHAEL R. BARRETT
UNITED STATES DISTRICT COURT

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