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
Case No. 2:12-cv-190
Honorable R. Allan Edgar
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.
/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge