United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves. Chief Judge.
Michael Merrall Shepherd was 16 years old when he shot and
killed 18-year-old Megan Liebengood as she was unloading
groceries from her car at an apartment complex in Lexington,
Kentucky. Shepherd was convicted of intentional murder,
first-degree robbery, and tampering with physical evidence in
the Fayette Circuit Court in May 2006. He had turned 18 by
the time he was sentenced to life imprisonment without the
possibility of parole for 25 years for the murder, 20 years
for robbery, and 5 years for tampering with evidence.
convictions and sentences were affirmed on appeal and upheld
following two collateral challenges in state court.
Shepherd v. Commonwealth, 51 S.W.3d 309');">251 S.W.3d 309 (Ky. 2008);
Shepherd v. Commonwealth, Nos. 2010-CA-1104,
2011-CA-1021, 2012 WL 3235952 (Ky. Ct. App. Aug. 10, 2012);
Shepherd v. Commonwealth, No. 2017-CA-1725, 2018 WL
6264429 (Ky. Ct. App. Nov. 30, 2018).
now has filed a petition for habeas corpus under 28 U.S.C.
§ 2254. He contends that his sentence is
unconstitutional under the United States Supreme Court's
decision in Miller v. Alabama, 567 U.S. 460');">567 U.S. 460, 479
(2012), which held that juvenile offenders may not be
sentenced to mandatory life imprisonment without the
possibility of parole. In January 2016, the Supreme Court held
that Miller announced a new rule of substantive
constitutional law that was retroactive on collateral review.
Montgomery v. Louisiana, 136 S.Ct. 718, 732 (2016).
with local practice, this matter was referred to a United
States Magistrate Judge for preparation of a report and
recommendation. See 28 U.S.C. § 636. United
States Magistrate Judge Hanly A. Ingram issued a Recommended
Disposition on August 26, 2019, recommending that
Shepherd's petition be dismissed as time-barred. [Record
No. 5] Neither party filed objections within the 14-day
period for submitting objections.
the Court must review de novo any portions of the Recommended
Disposition to which objections are made, §
636(b)(1)(c), “[i]t does not appear that Congress
intended to require district court review of a
magistrate's factual or legal conclusions, under a de
novo or any other standard, when neither party objects to
those findings.” Thomas v. Arn, 474 U.S. 140,
150 (1985). Additionally, a party who fails to file
objections to the Magistrate Judge's Recommended
Disposition typically forfeits the right to appeal.
Berkshire v. Beauvais, 520');">928 F.3d 520 (6th Cir. 2019)
(citing Thomas, 474 U.S. at 142). Regardless, the
Court has examined the record and conducted a de
novo determination that the Recommended Disposition
should be adopted in full.
relies on the “newly recognized” right set forth
in Miller, which was issued June 25, 2012. And as
the Magistrate Judge explained, the one-year statute of
limitations for filing a habeas petition based on the holding
in Miller began running on that date. See Dodd
v. United States, 545 U.S. 353');">545 U.S. 353, 357 (2005); 28 U.S.C
§ 2244(d)(1)(C). See also Moore v. Martin, No.
CIV-18-409-R, 2018 WL 4615985, (W.D. Ok. Sept. 26, 2018)
(limitations period for similar § 2254 petition began
when Supreme Court issued Miller, not
Court assumes arguendo that the deadline for filing
the § 2254 petition was tolled during the pendency of
Shepherd v. Commonwealth, 2012 WL 3235952 (Aug. 10,
2012) (Kentucky Supreme Court denied discretionary review on
Apr. 17, 2013). See 28 U.S.C. § 2244(d)(2). It
does not appear that Shepherd petitioned for a writ of
certiorari to the United States Supreme Court, but the
deadline for doing so was July 16, 2013. Accordingly,
construing the timeline in Shepherd's favor, the deadline
for filing a § 2254 petition based on Miller
was July 16, 2014. See 28 U.S.C §
2244(d)(1)(C). Therefore, Shepherd's petition filed on
August 9, 2019, is untimely.
of the Federal Rules Governing Section 2254 Cases requires
this Court to determine whether a certificate of
appealability should issue. A certificate of appealability
may issue only if the applicant has made a substantial
showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). The petitioner satisfies this standard by
showing “that jurists of reason could disagree with the
district court's resolution of the constitutional claims
or that jurists could conclude that the issues presented are
adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322');">537 U.S. 322, 336 (2003)
(quoting Slack v. McDaniel, 529 U.S. 473');">529 U.S. 473, 478
has failed to establish that reasonable jurists could
disagree regarding this Court's dismissal of his §
2254 petition. This is not a close case, since Shepherd's
petition was filed more than five years too late and he has
not identified any bases for additional tolling of the
statute of limitations. Accordingly, it is hereby
1. The Magistrate Judge's Recommended Disposition [Record
No. 5] is ADOPTED in full and
INCORPORATED here by reference
2. Michael Merrall Shepherd's petitions under 28 U.S.C.
§ 2254 [Record Nos. 1, 4] are DISMISSED
pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
3. The Clerk of the Court is directed to mail a copy of this
Memorandum Opinion and ...