Opinion
FILE NO. 1:06-CV-913.
April 11, 2007
ORDER ADOPTING REPORT AND RECOMMENDATION
This is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The matter was referred to the Magistrate Judge, who issued a Report and Recommendation ("R R"), recommending that this Court deny the petition (docket #10). The matter presently is before the Court on Petitioner's objections to the R R (docket #11).
This Court reviews de novo 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). See also U.S. Fidelity and Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085, 1088 (6th Cir. 1992) (noting that a district court conducts de novo review of magistrate judge's rulings on dispositive motions); Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) ("[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."). The Court may accept, reject or modify any or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1).
In the R R, the Magistrate Judge concluded that the habeas petition was time-barred and that Petitioner had failed to identify an appropriate basis for equitable tolling of the statute of limitations. In his sole objection, Petitioner argues that the Magistrate Judge failed to apply the standard for equitable tolling set forth in Allen v. Yukins, 366 F.3d 396, 401 (6th Cir. 2004). Since Allen, however, the Supreme Court has declared the correct standard for equitable tolling of the statute of limitations for habeas petitions. See Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). That standard, which was applied by the Magistrate Judge, requires a petitioner to demonstrate two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Lawrence, 127 S. Ct. at 1085 (citing Pace, 544 U.S. at 418). The Court has reviewed the analysis of the Magistrate Judge and finds no error in his application of the Lawrence standard.
Having considered each of Petitioner's objections and finding no error, the Court hereby denies Petitioner's objections and adopts the Report and Recommendation of the Magistrate Judge as the opinion of the Court. The Court therefore will dismiss the petition as time-barred.
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 a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This Court's dismissal of Petitioner's action under Rule 4 of the Rules Governing § 2254 Cases is a determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the Court has already determined that the action is so lacking in merit that service is not warranted. See, e.g., Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is "somewhat anomalous" for the court to summarily dismiss under Rule 4 and grant a certificate).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner's claims under the Slack standard.
This Court denied Petitioner's application on the procedural grounds that it was barred by the statute of limitations. Under Slack, 529 U.S. at 484, when a habeas petition is denied on procedural grounds, a certificate of appealability may issue only "when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Both showings must be made to warrant the grant of a certificate. Id. The Court finds that reasonable jurists could not debate that this Court correctly dismissed each of Petitioner's claims on the procedural ground that the petition is barred by the statute of limitations. "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id. Therefore, the Court denies Petitioner a certificate of appealability.
Accordingly,
IT IS ORDERED that Petitioner's objections (docket #11) to the Report and Recommendation of the Magistrate Judge are DENIED and the Report and Recommendation of the Magistrate Judge is ADOPTED in its entirety as the opinion of this Court.
IT IS FURTHER ORDERED that the habeas corpus petition is DENIED because it is barred by the statute of limitations.
IT IS FURTHER ORDERED that Petitioner is DENIED a certificate of appealability.