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Case 2:12-cv-00190-RAED-TPG Doc #40 Filed 09/19/13 Page 1 of 2 Page ID#328

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION



MYRON JACKSON,

v.

JEFFREY WOODS,


Petitioner,

Case No. 2:12-cv-190

Honorable R. Allan Edgar

/

Respondent.

MEMORANDUM AND ORDER

On August 2, 2013, U.S. Magistrate Judge Greeley entered a Report and

Recommendation (“R&R”) recommending that Respondent’s motion for summary judgment

be granted and Petitioner’s habeas petition be dismissed as untimely. Doc. No. 35.

Petitioner has filed objections to the R&R. Doc. No. 38. Petitioner has also filed a motion

to hold this case in abeyance to allow him to present additional unexhausted claims in state

court. Doc. No. 36. This Court is required to make a de novo determination of those

portions of the R&R to which objections have been filed, and may accept, reject, or modify

any or all of the Magistrate Judge’s findings or recommendations. 28 U.S.C. § 636(b)(1);

Fed. R. Civ. P. 72(b).

In his objections, Petitioner asserts that he is entitled to equitable tolling. The Court

agrees with Magistrate Judge Greeley’s analysis that Petitioner has not demonstrated his

entitlement to equitable tolling in this case. Petitioner also asserts that he has asserted a

claim of actual innocence, thereby allowing his petition to proceed. Petitioner’s only

Case 2:12-cv-00190-RAED-TPG Doc #40 Filed 09/19/13 Page 2 of 2 Page ID#329

argument in support of this assertion is that the “cumulative effect of the constitutional errors

alleged in the habeas petition establishes plain error and makes out a prima facie case to

actual innocence.” Such a conclusory assertion lacks merit. Plaintiff has failed to establish

a credible claim of actual innocence.

Petitioner’s objections to the R&R [Doc. No. 38] are without merit and are DENIED.

Petitioner’s motion to hold this case in abeyance while he returns to state court to exhaust

additional claims [Doc. No. 36] is DENIED. Magistrate Judge Greeley’s R&R [Doc. No. 35]

is APPROVED and ADOPTED as the opinion of the Court pursuant to 28 U.S.C. §

636(b)(1) and W.D. Mich. L. Civ. R. 72.3(b). The petition for writ of habeas corpus brought

pursuant to 28 U.S.C. § 2254 is DENIED and DISMISSED WITH PREJUDICE.

If Petitioner 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, 529 U.S. at 484. Reasonable jurists could not find that this decision

to dismiss Petitioner’s claims is debatable or wrong.

A Judgment consistent with this Memorandum and Order will be entered.

SO ORDERED.

Dated: 9/19/2013

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge

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