Filed: Jan. 05, 2015
Latest Update: Jan. 05, 2015
Summary: ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY MICHAEL W. FITZGERALD, District Judge. Pursuant to 28 U.S.C. 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination. Petitioner's Objections generally reiterate the arguments made in the Opposition to Respondent's Moti
Summary: ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY MICHAEL W. FITZGERALD, District Judge. Pursuant to 28 U.S.C. 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination. Petitioner's Objections generally reiterate the arguments made in the Opposition to Respondent's Motio..
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ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY
MICHAEL W. FITZGERALD, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the Magistrate Judge's Report and Recommendation, Petitioner's Objections to the Report and Recommendation, and the remaining record, and has made a de novo determination.
Petitioner's Objections generally reiterate the arguments made in the Opposition to Respondent's Motion to Dismiss, and lack merit for the reasons set forth in the Report and Recommendation.
More specifically, Petitioner's contention that tolling may excuse 28 U.S.C. § 2254's "in custody" requirement is wrong as a matter of law. See Hensley v. Mun. Court, 411 U.S. 345, 351 (1973) ("The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty."); Dewald v. Wriggelsworth, 2012 WL 3205859, at *2 (W.D. Mich. Aug. 7, 2012) (where petitioner "cite[d] no case suggesting that a petitioner's status as `in custody' can somehow be equitably tolled," the court "decline[d] to create the first such precedent"), rev'd on other grounds, 748 F.3d 295 (6th Cir. 2014).
Accordingly, IT IS ORDERED THAT:
1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Petition and dismissing this action without prejudice; and
3. The Clerk serve copies of this Order on the parties.
Additionally, for the reasons set forth above and in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability.
