UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIE HENDERSON,

Petitioner,

CASE NO. 2:09-CV-13143

v. JUDGE NANCY G. EDMUNDS

MAGISTRATE JUDGE PAUL KOMIVES

MARY BERGHUIS

Respondent.

 /

REPORT AND RECOMMENDATION ON RESPONDENT’S

MOTION FOR SUMMARY JUDGMENT (docket #8)

I. RECOMMENDATION: The Court should conclude that petitioner’s application for the writ

of habeas corpus is barred by the one year statute of limitations contained in 28 U.S.C. § 2244(d).

Accordingly, the Court should grant respondent’s motion for summary judgment (docket #8).

Alternatively, the Court should deny petitioner’s habeas application on the merits. If the Court

accepts either of these recommendations, the Court should also deny a certificate of appealability.

II. REPORT:

A. Procedural Background

Petitioner Willie Henderson is a state prisoner, currently confined at the Earnest C. Brooks

Correctional Facility in Muskegon, Michigan. Petitioner is serving a sentence of 35-50 years’

imprisonment imposed as a result of his 2002 state court conviction for second degree murder.

Petitioner’s application and the state court record reveal the following time line of the state court

proceedings:

• Petitioner was convicted of second degree murder following a jury trial in the Wayne

County Circuit Court. On November 14, 2002, the Court imposed its sentence.

• Petitioner appealed as of right to the Michigan Court of Appeals. The court of appeals
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Although petitioner’s application is file-stamped August 11, 2009, it is well-established that a

habeas petition is deemed “filed” for purposes of the statute of limitations on the date the petitioner

gives his motion to prison officials for mailing. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997); Beckovich

v. Coyle, 22 F. Supp. 2d 722, 723 (N.D. Ohio 1998); cf. Houston v. Lack, 487 U.S. 266, 270 (1988).

Petitioner’s application is dated August 4, 2009. Accordingly, I assume that the petition was given to

prison officials for mailing, and was thus “filed,” on August 4, 2009.

2

Petitioner also contends that his appellate counsel’s failure to file an application for leave to

appeal in the Michigan Supreme Court constitutes good cause for his failure to raise the jury instruction

claim there. This claim is not asserted as an independent basis for habeas relief, but as cause to excuse

his procedural default.

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affirmed petitioner’s conviction on December 28, 2004. See People v. Henderson, No.

247609 (Mich. Ct. App. Dec. 28, 2004).

• Petitioner attempted to file a pro se application for leave to appeal in the Michigan

Supreme Court. Petitioner contends that the application was given to prison officials

for mailing on February 21, 2005. The application was received by the Michigan

Supreme Court on March 3, 2005. On March 7, 2005, the application was rejected by

the Clerk and returned to petitioner because it was not filed within 56 days of the court

of appeals’s decision as required by MICH. CT. R. 7.302(C)(2).

• On August 23, 2007, petitioner filed a motion for relief from judgment in the trial

court pursuant to MICH. CT. R. 6.500-.509. The trial court denied the motion on

November 14, 2007. 

• Petitioner sought leave to appeal in the Michigan Court of Appeals. The court of

appeals denied petitioner’s application on July 22, 2008. See People v. Henderson,

No. 284371 (Mich. Ct. App. July 22, 2008).

• Petitioner thereafter sought leave to appeal in the Michigan Supreme Court. That

court denied petitioner’s application for leave to appeal on November 25, 2008. See

People v. Henderson, 482 Mich. 1068, 757 N.W.2d 473 (2008).

On August 4, 2009, petitioner filed this application for the writ of habeas corpus pursuant to

28 U.S.C. § 2254.1 As grounds for the writ, petitioner contends that he was denied a fair trial by the

failure of the trial court to give a lesser offense instruction on involuntary manslaughter.2

Contemporaneous with his habeas application, petitioner also filed a motion for equitable tolling,

conceding that his application is untimely but seeking equitable tolling of the limitations period.
3

As of the date of this Report, petitioner has not filed a response to respondent’s motion for

summary judgment. Pursuant to E.D. MICH. LR 7.1(e)(1)(B), petitioner had 21 days from the date of

service in which to file his response. Including the three extra days for service by mail provided for in

FED. R. CIV. P. 6(d), petitioner’s response was due 24 days from February 16, 2010, or on March 12,

2010. In any event, no further delay for a response is necessary, because petitioner’s motion for

equitable tolling presents his arguments with respect to the limitations issue.

3

Respondent filed a motion for summary judgment on February 16, 2010, arguing that petitioner’s

habeas application is untimely. For the reasons that follow, the Court should grant respondent’s

motion for summary judgment. Alternatively, the Court should dismiss the petition on the merits.3

B. Timeliness of Petitioner’s Habeas Application

1. Statutory Timeliness and Tolling

Respondent argues that petitioner’s application is barred by the one-year statute of limitations

governing habeas petitions. On April 24, 1996, President Clinton signed into law the Antiterrorism

and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1220 (Apr. 24, 1996). In

relevant part, the AEDPA amended 28 U.S.C. § 2244 to provide a one year statute of limitations for

habeas petitions. Specifically, the statute as amended by the AEDPA provides:

(1) A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of–

(A) the date on which the judgment became final by the conclusion of direct

review of the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State

action in violation of the Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized

by the Supreme Court and made retroactively applicable to cases on collateral review;

or

(D) the date on which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction

or other collateral review with respect to the pertinent judgment or claim is pending

shall not be counted toward any period of limitation under this subsection.
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The AEDPA codified a one-year statute of limitations provision for motions to vacate federal

convictions brought under 28 U.S.C. § 2255 which is nearly identical to the one found in § 2244(d)(1).

See 28 U.S.C. § 2255 para. 6. Accordingly, cases discussing the § 2255 statute of limitations are

applicable here.

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28 U.S.C. § 2244(d).4

As the language of the statute indicates, there are four possible dates on which the limitations

period may begin to run. The claims asserted in petitioner’s habeas application do not implicate

subparagraphs (B) through (D), and thus subparagraph (A) applies here. Under subparagraph (A) of

§ 2244(d), 

a judgment of conviction does not become “final” . . . until the Supreme Court affirms

the conviction and sentence on the merits or denies a timely filed petition for

certiorari.

In addition, if a defendant does not file a certiorari petition, the judgment of

conviction does not become “final” until the time for seeking certiorari review expires.

Kapral v. United States, 166 F.3d 565, 570-71 (3d Cir. 1999); see also, United States v. Simmonds,

111 F.3d 737, 744 (10th Cir. 1997) (conviction became final upon denial of certiorari); Torres v. Irvin,

33 F. Supp. 2d 257, 271 (S.D.N.Y. 1998) (“[A] judgment of conviction only becomes final upon the

expiration of the ninety days to seek a writ of certiorari from the United States Supreme Court.”);

United States v. Dorsey, 988 F. Supp. 917, 918 (D. Md. 1998) (same); cf. Penry v. Lynaugh, 492 U.S.

302, 314 (1989) (for purpose of determining whether application of new rule of law would be an

impermissible retroactive application to a case which has already become final, conviction becomes

final upon denial of the defendant’s petition for certiorari); Griffith v. Kentucky, 479 U.S. 314, 321

n.6 (1987) (“By ‘final,’ we mean a case in which a judgment of conviction has been rendered, the

availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for

certiorari finally denied.”).

Petitioner contends that his conviction became final when the Michigan Supreme Court
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rejected his late-filed application for leave to appeal on March 7, 2005. Respondent argues that,

because there was not a properly filed appeal from the Michigan Court of Appeals’s decision,

petitioner’s conviction became final 56 days after that decision, when petitioner’s time for seeking

review expired pursuant to MICH. CT. R. 7.302(C)(2). The Court need not resolve this question,

however, because even giving petitioner the benefit of the doubt, his application is still untimely.

Assuming that the Michigan Supreme Court’s March 7, 2005, rejection of petitioner’s appeal

constitutes the state courts’ last decision on direct review, petitioner’s conviction became final 90

days later when the time for seeking certiorari in the United States Supreme Court expired.

Petitioner’s conviction therefore became final on June 5, 2005. Thus, the limitations began to run on

June 5, 2005, and expired one year later, on June 5, 2006. Because petitioner did not file his habeas

application until August 4, 2009, it is untimely unless the limitations period was tolled for any reason.

Under § 2244(d)(2), the limitations period is tolled for “[t]he time during which a properly

filed application for State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending[.]” Petitioner’s motion for relief from judgment was filed in the trial

court on August 23, 2007. By this time, however, the limitations period had been expired for nearly

15 months. It is well established that subsection (d)(2) is a tolling provision and therefore a postconviction motion only pauses the limitations clock; it “does not reset the date from which the oneyear statute of limitations begins to run.” Smith v. McGinnis, 208 F.2d 13, 17 (2d Cir. 2000); see also,

Brooks v. McKee, 307 F. Supp. 2d 902, 905 (E.D. Mich. 2004) (Gadola, J.). By the time petitioner

filed his motion for relief from judgment, the one-year limitation period had already expired, and thus

this filing cannot serve to toll the limitations period. See Webster v. Moore, 199 F.3d 1256, 1259

(11th Cir. 2000); Jackson v. Dormire, 180 F.3d 919, 920 (8th Cir. 1999) (per curiam); Smith v.

Stegall, 141 F. Supp. 2d 779, 782-83 (E.D. Mich. 2001) (Gadola, J.). Thus, under the statute
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petitioner’s habeas application is untimely.

2. Equitable Tolling

Petitioner does not quarrel with the foregoing calculation, and concedes that his petition is

untimely under § 2244(d). Rather, petitioner contends that he is entitled to equitable tolling of the

limitations period. The Court should reject this argument.

To be entitled to equitable tolling of the limitations period, petitioner “must show ‘(1) that he

had been pursing his rights diligently, and (2) that some extraordinary circumstance stood in his way’

and prevented timely filing.” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v.

Diguglielmo, 544 U.S. 408, 418 (2005)). “The petitioner bears the burden of establishing that he is

entitled to equitable tolling.” McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003). Here,

petitioner has failed to point to any extraordinary circumstance which prevented timely filing.

Petitioner contends that he is entitled to equitable tolling because he had no knowledge of the

limitations period, and is an elderly prisoner who is uneducated in the law and comprehends at the

fourth grade level. The Courts have uniformly held that neither a prisoner’s pro se status nor his lack

of knowledge of the law constitute extraordinary circumstances justifying equitable tolling. Nor does

his pro se status at the time of the first motion for relief from judgment provide a basis for equitable

tolling. See Lattimore v. DuBois, 311 F.3d 46, 55 (1st Cir. 2002); Marsh v. Soares, 223 F.3d 1217,

1220 (10th Cir. 2000); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); Rodriguez v. Elo, 195

F. Supp. 2d 934, 936 (E.D. Mich. 2002) (Rosen, J.). Thus, petitioner is not entitled to equitable

tolling of the limitations period.

3. Conclusion Regarding the Limitations Issue

In view of the foregoing, the Court should conclude that petitioner’s habeas application is

untimely, and that he is not entitled to equitable tolling of the limitations period. Accordingly, the
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Court should grant respondent’s motion for summary judgment and dismiss the petition.

C. Summary Dismissal

Alternatively, or if the Court does not accept my conclusion regarding the limitations issue,

the Court should deny the petition on the merits.

1. Legal Standard

Because petitioner’s application was filed after April 24, 1996, his petition is governed by the

provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Amongst

other amendments, the AEDPA amended the substantive standards for granting habeas relief by

providing:

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any claim

that was adjudicated on the merits in State court proceedings unless the adjudication

of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

“[T]he ‘contrary to’ and ‘unreasonable application’ clauses [have] independent meaning.”

Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). “A

state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that contradicts

the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a

result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)

(quoting Williams, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535 U.S.
8

at 694. “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court to

‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme]

Court but unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v. Smith, 539

U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also, Bell, 535 U.S. at 694. However,

“[i]n order for a federal court to find a state court’s application of [Supreme Court] precedent

‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous. The state

court’s application must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21

(citations omitted); see also, Williams, 529 U.S. at 409.

By its terms, § 2254(d)(1) limits a federal habeas court’s review to a determination of whether

the state court’s decision comports with “clearly established federal law as determined by the

Supreme Court.” Thus, “§ 2254(d)(1) restricts the source of clearly established law to [the Supreme]

Court’s jurisprudence.” Williams, 529 U.S. at 412. Further, the “phrase ‘refers to the holdings, as

opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court decision.’ In

other words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or

principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v.

Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529 U.S. at 412).

Although “clearly established Federal law as determined by the Supreme Court” is the

benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) “does not

require citation of [Supreme Court] cases–indeed, it does not even require awareness of [Supreme

Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts

them.” Early, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements

of “clearly established law” are to be determined solely by the holdings of the Supreme Court, the

decisions of lower federal courts are useful in assessing the reasonableness of the state court’s
5

In addition to these witnesses, the prosecution presented the testimony of Officer Frank Horan,

a crime scene technician, who testified to his examination of the crime scene, see Trial Tr., Vol. I, at 144-

54, and Vertina Hawk, the victim’s niece, who testified to identifying the victim’s body at the hospital,

see id. at 154-56.

9

resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v.

Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F. Supp.2d 354, 359 (E.D. Mich.

2002) (Tarnow, J.).

2. Analysis

Petitioner was charged with first-degree premeditated murder in connection with the

strangulation death of his estranged wife. The evidence against petitioner consisted of his statement

to the police, as testified to by two officers, and the testimony of the assistant medical examiner. The

police officers testified that they responded to a 911 call placed by petitioner. Upon their arrival at

petitioner’s apartment building, petitioner exhibited no signs of physical injury or disheveled clothing,

and he appeared calm. He told the officers that the victim had forced her way into the apartment, and

that a struggle ensued. He attempted to restrain her by grabbing her throat and putting her on the

floor. As he held her down, she fell into unconsciousness. See Trial Tr., Vol. I, at 107-13 (testimony

of Officer Ronald Loosvelt), 130-34 (testimony of Officer Jon Rose). Dr. Leigh Hlavaty, the assistant

medical examiner, testified that the victim dies from asphyxia due to a neck hold. She testified that

with the application of constant pressure, loss of consciousness would result in about 30 seconds, with

death following if the pressure were maintained for about 21⁄2 minutes. With the application of

inconsistent pressure, death could take as long as 4-5 minutes. Although a person’s use of cocaine

increases the susceptibility to asphyxial death and the victim’s toxicology report showed evidence of

cocaine use, Dr. Hlavaty opined that the cocaine in the victim’s system did not cause or significantly

contribute to the victim’s death. See id., Vol. II, at 7-40.5

 Petitioner did not testify or offer any
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evidence on his own behalf. Counsel argued that the evidence showed that petitioner was merely

attempting to subdue the victim and had no intent to kill her or cause great bodily harm, and that the

death was an accident. See id., Vol. I, at 106-07; Vol. II, at 67-71.

The trial court instructed the jury on the elements of first degree murder as charged, and on

the lesser included offenses of second degree murder and voluntary manslaughter, see id., Vol. II, at

83-86, but declined to give petitioner’s requested lesser offense instruction on involuntary

manslaughter, see id. at 55-58. The jury found petitioner guilty of the lesser offense of second degree

murder. In his habeas claim, as on appeal, petitioner contends that he was denied a fair trial by the

trial court’s refusal to give an instruction on involuntary manslaughter. The Michigan Court of

Appeals rejected this claim, reasoning that an instruction on involuntary manslaughter was not

warranted under the evidence. See Ct. App. op., at 1-2. The Court should conclude that petitioner

is not entitled to habeas relief on this claim, for two reasons.

First, the court of appeals’s determination was not contrary to or an unreasonable application

of any clearly established Supreme Court law. Although the Eighth Amendment and the Due Process

Clause require that a trial court instruct the jury on lesser included offenses in the context of a capital

case, see Beck v. Alabama, 447 U.S. 625, 637-38 (1980) (trial court required to instruct sua sponte

on lesser included offenses where the failure to do so would result in the jury being given an “all or

nothing” choice of convicting on the capital charge or acquitting the defendant), “the Constitution

does not requires a lesser-included offense instruction in non-capital cases.” Campbell v. Coyle, 260

F.3d 531, 541 (6th Cir. 2001). As the Sixth Circuit has noted, even where a lesser offense instruction

is requested, the failure of a court to instruct on a lesser included or cognate offense in a non-capital

case is generally “not an error of such magnitude to be cognizable in federal habeas corpus review.”

Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1990) (en banc); see also, Scott v. Elo, 302 F.3d 598,
11

606 (6th Cir. 2002). At a minimum, there is no clearly established Supreme Court law which requires

the giving of a requested lesser offense instruction in the non-capital context, as is required for habeas

relief under § 2254(d)(1). See Samu v. Elo, 14 Fed. Appx. 477, 479 (6th Cir. 2001); Kuroda v. Bell,

No. 2:07-CV-12310, 2007 WL 1657410, at *2 (E.D. Mich. June 7, 2007) (Cohn, J.); Adams v. Smith,

280 F. Supp. 2d 704, 717 (E.D. Mich. 2003) (Tarnow, J.). Thus, the Michigan Court of Appeals’s

resolution of this claim was not contrary to, or an unreasonable application of, clearly established

federal law, and petitioner is therefore not entitled to habeas relief on this claim.

Second, because the jury was instructed on the lesser offense of voluntary manslaughter,

which is an intermediate charge between second degree murder and involuntary manslaughter, any

error in the failure to give the involuntary manslaughter instruction was harmless. As noted by one

circuit court, the Supreme Court has recognized that “in cases involving offenses on a ladder, if the

trial court wrongfully refuses to charge the offense at the bottom rung, that error is harmless

provided the jury returns a guilty verdict for an offense higher up rather than for an intermediate

offense which is also charged.” Geschwendt v. Ryan, 967 F.2d 877, 884 (3d Cir. 1992) (discussing

Schad v. Arizona, 501 U.S. 624, 647-48 (1991)); accord Six v. Delo, 94 F.3d 469, 478 (8th Cir.

1996), petition for cert. filed, No. 96-8471 (U.S. Mar. 31, 1997); Allridge v. Scott, 41 F.3d 213, 220

(5th Cir. 1994); Slade v. Taylor, 689 F. Supp. 595, 599 (E.D. Va. 1988). Accordingly, because

petitioner was convicted of the greater offense of second degree murder over the intermediate

offense of voluntary manslaughter, petitioner was not prejudiced by the trial court’s failure to

instruct on involuntary manslaughter. For these reasons, petitioner is not entitled to habeas relief

on his claim, even if his petitioner were other wise timely.

D. Recommendation Regarding Certificate of Appealability

1. Legal Standard
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As amended by the Antiterrorism and Effective Death Penalty Act, section 2253 provides that

a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge issues

a certificate of appealability. See 28 U.S.C. § 2253(c)(1). The statute further provides that “[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). As the Sixth Circuit has noted, this language

represents a codification of the Supreme Court’s decision in Barefoot v. Estelle, 463 U.S. 880 (1983),

and “[t]he AEDPA thus makes no change to the general showing required to obtain a certificate[.]”

Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997); accord Slack v. McDaniel,

529 U.S. 473, 483 (2000). Although the statute does not define what constitutes a “substantial

showing” of a denial of a constitutional right, the burden on the petitioner is obviously less than the

burden for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the

courts that have considered the issue have concluded that “‘[a] substantial showing requires the

applicant to “demonstrate that the issues are debatable among jurists of reason; that a court could

resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement

to proceed further.”’” Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999) (quoting Drinkard v.

Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot, 463 U.S. at 893 n.4)); accord Slack, 529

U.S. at 483-84. Although the substantive standard is the same, “[t]he new Act does, however, require

that certificates of appealability, unlike the former certificates of probable cause, specify which issues

are appealable.” Lyons, 105 F.3d at 1073. (citing 28 U.S.C. § 2253(c)(3)).

Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254

Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court

must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”

Rule 11(a), 28 U.S.C. foll. § 2254. The rule tracks § 2253(c)(3)’s requirement that any grant of a
13

certificate of appealability “state the specific issue or issues that satisfy the showing required by §

2253(c)(2),” Rule 11(a), but omits the requirement contained in the pre-amendment version of Federal

Rule of Appellate Procedure 22(b)(1) that the court explain “why a certificate should not issue.” FED.

R. APP. P. 22(b)(1) (version effective prior to 2009 amendment); see id., advisory committee note,

2009 amendments. In light of the new Rule 11 requirement that the Court either grant or deny the

certificate of appealability at the time of its final adverse order, I include a recommendation regarding

the certificate of appealability issue here.

2. Analysis

Where, as here, a petition is dismissed on a procedural basis, the inquiry under § 2253(c) is

two-fold. In such a case, a certificate of appealability “should issue when the prisoner shows, at least,

that jurists of reason would find it debatable whether the petition states a valid claim of the denial of

a constitutional right and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Slack, 529 U.S. at 485 (emphasis added). As the Court explained,

“[w]here 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. In such a circumstance, no appeal

would be warranted.” Id. at 486.

If the Court accepts the foregoing recommendation, petitioner cannot show either that the

Court’s ruling on the procedural question is reasonably debatable, nor can he show that the petition

states a valid claim of the denial of a constitutional right. With respect to the former, as noted above

petitioner concedes that his habeas application is untimely, and argues only that he is entitled to

equitable tolling based on his pro se status and lack of education. Because the courts have repeatedly

and uniformly rejected these as bases for equitable tolling, the Court’s rejection of equitable tolling
14

in this case is not reasonably debatable. With respect to the later, as explained above petitioner’s jury

instruction claim is clearly without merit because the Supreme Court has suggested that state courts

are required under the Constitution to give instructions on lesser offenses in non-capital cases, and

because any error in failing to give an involuntary manslaughter instruction was harmless.

Accordingly, the Court should conclude that petitioner is not entitled to a certificate of appealability.

E. Conclusion

In view of the foregoing, the Court should conclude that petitioner’s application for the writ

of habeas corpus is barred by the statute of limitations governing habeas petitions. Accordingly, the

Court should grant respondent’s motion for summary judgment and dismiss the petition.

Alternatively, the Court should deny the petition on the merits. If the Court accepts either of these

recommendations, the Court should deny the certificate of appealability..

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED.

R.CIV. P. 72(b). Failure to file specific objections constitutes a waiver of any further right of appeal.

Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505

(6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which

raise some issues but fail to raise others with specificity, will not preserve all the objections a party

might have to this Report and Recommendation. Willis v. Secretary of Health & Human Servs., 931

F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370,

1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served

upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the
15

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: 3/16/10

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record by

electronic means or U.S. Mail and Willie Henderson at

Earnest C. Brooks Correctional Facility on March 16,

2010.