United States District Court, W.D. Kentucky, Paducah Division
MICHAEL C. DUMAS PETITIONER
JOSEPH MEKO, Warden RESPONDENT
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge United States District Court.
matter is before the Court on Petitioner's Objection (DN
17) to the Magistrate Judge's Findings of Fact,
Conclusions of Law, and Recommendation (R&R) (DN 16). For
the following reasons, Magistrate Judge R&R is ADOPTED
and Petitioner's Objection is OVERRULED.
Magistrate Judge's Report and Recommendation
(“R&R”) sets forth in detail the relevant
facts and procedural history of this matter, which the Court
incorporates herein without recitation. (R. & R. 2-4, DN
Court has jurisdiction to “entertain an application for
a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court” pursuant to
28 U.S.C. § 2254(a).
January 26, 2017, Magistrate Judge King issued an R&R
recommending dismissal of Petitioner Michael C. Dumas'
(“Petitioner”) Petition for Writ of Habeas Corpus
because it was filed outside of the applicable one year
statute of limitations. (R. & R. 4 (citing 28 U.S.C.
§ 2244(d)(1)). Petitioner raises three objections to the
R&R. (Pet'r's Obj., DN 17). This Court reviews
de novo the portions of the R&R to which a
specific objection has been made. See 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). In conducting its
review, this Court “may accept, reject, or modify, in
whole or in part, the findings or recommendations [of] . . .
the magistrate judge.” 28 U.S.C. § 636(b)(1).
Petitioner objects to the Magistrate Judge's conclusion
that Petitioner was not entitled to equitable tolling.
(Pet'r's Obj. 3-4). The Magistrate Judge determined
that Petitioner's “pro se status, lack of legal
sophistication, restricted access to the law library, and
other difficulties attendant on the vicissitudes of prison
life do not qualify as extraordinary circumstances.”
(R. & R. 5 (citing Leon v. Parris, No.
3:15-cv-0094, 2015 WL 7283164, at *4 (M.D. Tenn. Nov. 16,
2015)). Petitioner agrees with the Magistrate Judge that
individually, these factors do not justify equitable tolling;
however, Petitioner claims that the Magistrate Judge erred
when he did not consider these factors in the aggregate.
(Pet'r's Obj. 2-3). Further, Petitioner argues that
the Magistrate Judge also failed to consider that he made
claims of actual innocence in his Petition. (Pet'r's
the statute of limitations is not jurisdictional, it is
subject to equitable tolling. Holland v. Florida,
560 U.S. 631, 645-46 (2010). The doctrine of equitable
tolling, however, should be applied “sparingly, ”
and the petitioner “bears the burden of demonstrating
that he is entitled to equitable tolling.” Vroman
v. Brigano, 346 F.3d 598, 604 (6th Cir. 2003) (citations
omitted). A petitioner seeking equitable tolling of the
statute of limitations bears the burden of establishing two
elements: “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances
stood in his way.” Holland, 560 U.S. at 649
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
Court agrees with the Magistrate Judge that Petitioner has
not demonstrated that extraordinary circumstances stood in
his way of timely filing, even when considering the
circumstances in the aggregate. The Sixth Circuit has held
that “combinations of illiteracy, pro se
status, lack of access to legal materials, ignorance of the
law, and reliance on legal assistance from others do not
amount to extraordinary circumstances.” Tanner v.
Yukins, 776 F.3d 434, 446 (6th Cir. 2015) (citations
omitted). See also Hall v. Warden, Lebanon Corr.
Inst., 662 F.3d 745, 750-52 (6th Cir. 2011) (noting that
a combination of a prisoner's pro se status,
limited law-library access, and inability to access trial
transcripts did not amount to an extraordinary circumstance
to warrant equitable tolling). Therefore, even considering
these circumstances in the aggregate, as Petitioner argues
the Magistrate Judge failed to do, the Court is satisfied
that the combination of these factors in the aggregate do not
amount to extraordinary circumstances.
the Court also finds Petitioner's argument that the
Magistrate Judge ignored the fact that he had made claims of
actual innocence is of no avail. The Sixth Circuit has held
“where an otherwise time-barred habeas petitioner can
demonstrate that it is more likely than not that no
reasonable juror would have found him guilty beyond a
reasonable doubt, the petitioner should be allowed to pass
through [AEDPA's] gateway and argue the merits of his
underlying constitutional claims.” Souter v.
Jones, 395 F.3d 577, 602 (6th Cir. 2005). This exception
requires new evidence that demonstrates factual
innocence-i.e., that the petitioner “did not commit the
acts forming the basis for his conviction . . . .”
Ross v. Berghuis, 417 F.3d 552, 555-56 (6th Cir.
2005). The Court is unable to locate where Petitioner's
claim of actual innocence. Petitioner has not put forth new
exculpatory evidence that would lead this Court to believe
that “no reasonable juror would have found him guilty .
. . .” Souter, 395 F.3d at 602 (citation
omitted). Accordingly, the Court finds Petitioner's
assertion that the Magistrate Judge ignored his claim of
actual innocence to be without merit. Therefore, the Court
holds that Petitioner's first objection to the R&R
has no merit and is overruled.
second objection is that he has “shown sufficient cause
to excuse his failure to file a timely notice of appeal in
state court” because he was suffering from severe
vertigo during that time and did not understand the
complexity of the appellate procedural rules.
(Pet'r's Obj. 4-5). The Court does not see how the
alleged cause for Petitioner's untimely state court
notice of appeal has any bearing on whether he was diligently
pursuing his right to file a federal habeas corpus petition,
as his Petition was filed three years after his untimely
notice of appeal was filed in state court. See
Vroman, 346 F.3d at 605 (rejecting petitioner's
argument that he was diligently pursuing his federal habeas
rights because the petitioner's argument “focuse[d]
on [the petitioner's] diligence in pursuing his rights in
Ohio state post-conviction proceedings. [The petitioner]
fail[ed] to address his lack of diligence in timely filing a
petition for habeas relief.”). Accordingly, the Court
overrules Petitioner's second objection.
Petitioner objects to the R&R's recommendation to
deny a certificate of appealability. Petitioner's
objection merely reiterates the standard for issuance of a
certificate of appealability. The Supreme Court in Slack
v. McDaniel, 529 U.S. 473 (2000), established a
two-prong test used to determine when a certificate of
appealability should be issued after a writ of habeas corpus
is denied on procedural grounds. Id. at 484-85. To
satisfy the test, the petitioner must show that: (1)
“jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right”; and (2) “jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Id. at 484.
Petitioner does not satisfy the second prong of the test.
Reasonable jurists could not disagree that ...