Derryck HENSON, Petitioner-Appellant, v. WARDEN, LONDON CORRECTIONAL INSTITUTION, Respondent-Appellee.
No. 13-4322
United States Court of Appeals, Sixth Circuit.
July 29, 2015.
616 Fed. Appx. 417
As discussed, neither Deiters‘s administrative complaint or her federal-court complaint claimed that the posting of her photo but not Smith‘s was an adverse employment action. We do not address this unpreserved claim, see Barner, 399 F.3d at 749, beyond observing that, after Smith and Deiters were returned to work in October 2011, Smith‘s employment was terminated effective in January 2012, while Deiters was not discharged.
C.
Deiters asserts that the district court erroneously determined that she attempted to establish pretext only by disagreeing with USPS‘s business judgment or decision. She argues that pretext is evident from USPS‘s failure to follow its own policies and procedures before it placed her on non-duty status. According to Deiters, emergency placement on non-duty status is only used when an employee does something drastic that may risk harm to employees. Appellant Br. 42. But Article 16, § 7 of the collective bargaining agreement allows for emergency placement when an employee may be injurious to self or others. PID 168. USPS had received many complaints from employees and supervisors of the constant turmoil between the two women on the workroom floor, frequent outbursts, and frequent crying spells Deiters had. PID 114. In addition, Deiters 2010 EEO complaint alleged that she was frightened by Smith‘s “threatening stances,” near physical run-ins, and glaring, and that she frequently retreated to the women‘s bathroom sobbing. PID 274-75. We conclude that USPS reasonably believed that the conflict had the potential to be injurious to Dieters, Smith or others.
D.
Deiters‘s final challenge is to the district court‘s statement that Deiters admitted that the Union grieved and settled her emergency placement. PID 678, quoted supra n. 4. It is not clear what was intended by the observation, but, in any event, the district court did not grant summary judgment on that basis; rather, the court ruled that Deiters failed to present evidence that USPS‘s proffered reason for placing her on non-duty status either had no basis in fact, or did not actually motivate the action, or was insufficient to warrant the adverse action. Harris, 594 F.3d at 486.
For these reasons, we affirm the judgment of the district court.
HELENE N. WHITE, Circuit Judge.
Petitioner-Appellant Derryck Henson filed this
I.
An Ohio jury convicted Henson of murder, and Henson was sentenced to a minimum of fifteen years’ imprisonment. Henson‘s conviction became “final” for AEDPA purposes on March 30, 2010, when the time for filing a petition for certiorari in the Supreme Court in his direct appeal expired. Henson v. Warden, Lebanon Corr. Inst., 13-4322, Order (6th Cir. Oct. 29, 2014).
On March 16, 2009, while his direct appeal was pending, Henson filed a motion for post-conviction relief in the state trial court. Under the applicable statute in effect at the time, Henson had 180 days “after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication” to file his post-conviction motion.
The trial court addressed the merits of Henson‘s motion and denied him relief. Henson appealed the decision, and on October 26, 2011, the appellate court affirmed the trial court‘s order, but on different grounds—the appellate court sua sponte determined that Henson‘s post-conviction motion was untimely and that the time limit for filing such a motion was jurisdictional (and thus non-excusable). The Ohio Supreme Court denied Henson leave to appeal on March 7, 2012.2
The state appellate court‘s decision had two effects: (1) the merits of Henson‘s motion for post-conviction relief were not addressed by a state appellate court, and (2) the motion was not “properly filed” for purposes of AEDPA and thus the one-year statute of limitations was not tolled for any of the time it otherwise would have been tolled while Henson was pursuing post-conviction relief in state court. Henson, 13-4322, Order (6th Cir. Oct. 29, 2014). Accordingly, Henson‘s
Henson filed his
Henson did not file an objection to the Report, notwithstanding that the end of the Report referenced Federal Rule of Civil Procedure 72(b) and the process for objecting to a Report, stating, among other things, that “[f]ailure to make objections in accordance with [FRCP 72‘s] procedure may forfeit rights on appeal.” The district court adopted the Report, dismissed Henson‘s petition with prejudice, and reiterated that: “Proper notice has been given to the parties ... including notice that the parties would waive further appeal if they
II.
We review de novo a district court‘s legal conclusions in a habeas proceeding. See Miller v. Collins, 305 F.3d 491, 493 (6th Cir. 2002). The decision whether to apply equitable tolling to a case where determinative facts are undisputed is also reviewed de novo. See Solomon v. United States, 467 F.3d 928, 932 (6th Cir. 2006).
Equitable tolling is a doctrine that “allows courts to toll a statute of limitations when a litigant‘s failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant‘s control.” Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (internal quotation marks omitted). A petitioner, who bears the burden in this context, is entitled to equitable tolling only if he shows ” (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)). If extraordinary circumstances are present, the “statute of limitations should be equitably tolled until the earliest date on which the petitioner, acting with reasonable diligence, should have filed his petition.” Kendrick v. Rapelje, 504 Fed. Appx. 485, 487 (6th Cir. 2012) (citing Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)). “[T]he doctrine of equitable tolling is used sparingly by federal courts.” Robertson, 624 F.3d at 784 (citation omitted).
III.
The Warden argues that Henson waived his opportunity to appeal by not objecting to the Report. “Generally, the failure to file specific objections to a magistrate‘s report constitutes a waiver of those objections.” Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004). This rule, first promulgated in United States v. Walters, 638 F.2d 947 (6th Cir. 1981), is intended to promote “judicial efficiency.” Howard v. Sec‘y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Under the Walters rule, only specific objections to the Report will be preserved for appellate review. Smith v. Detroit Fed‘n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). This is because our “function is to review the case presented to the district court, rather than a better case fashioned after a district court‘s unfavorable order.” Hall v. Warden, Lebanon Correctional Inst., 662 F.3d 745, 753 (6th Cir. 2011) (internal quotation marks and citation omitted).
However, the Walters rule is “nonjurisdictional,” and we can excuse Henson‘s waiver “in the interests of justice.” Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Poss v. Morris (In re Morris), 260 F.3d 654, 664 (6th Cir. 2001). We have identified three general situations where overlooking waiver is appropriate: (1) if the case is “exceptional” and declining to review the issue would “produce a plain miscarriage of justice“; (2) if hearing the issue “would serve an overarching purpose other than simply reaching the correct result in this case“; and (3) if the issue is presented with sufficient clarity such that no factual development would be required and resolving the issue would promote the finality of litigation in the case. In re Morris, 260 F.3d at 664. We have “reiterated that the excep-
Henson concedes that he waived the opportunity to appeal, but argues that we should excuse his waiver for two reasons: (1) because this case involves “a wholly legal issue [that has been] presented with sufficient clarity;” and (2) because “this case involves unsettled issues of law, and the lack of clarity warrants addressing this appeal on the merits.”3 We disagree.
Henson‘s first argument is facially plausible only because he chose to only address one aspect of the Holland equitable-tolling test; Henson has expressly not made, or attempted to make, the diligence showing. Rather, he insists that we should remand his case to the district court for an evidentiary hearing. Had Henson addressed (or attempted to address) the second, fact-based aspect of equitable tolling, he could not plausibly argue that the “wholly legal issue” exception to waiver applies. A party cannot manufacture “a wholly legal issue,” and thus make an argument that a clear waiver should be excused, by opting not to address a factually intensive aspect of the case. Further, excusing Henson‘s waiver would require remanding the case, a result disfavored by this Court. See, e.g., Barilow, 6 F.3d at 407 (stating that “[t]he exceptions to [waiver] are narrow” and that the “rationale” for granting an exception to waiver because a pure legal question is presented “is to promote finality in the litigation process.“). This argument fails.
Henson‘s second argument fails for a similar reason—we are unable to address the supposed “unsettled issues of law,” where only one aspect of the equitable-tolling test has been briefed by both sides. Moreover, because each equitable-tolling case is necessarily fact specific, it is unlikely that addressing the merits of Henson‘s claim would “settle” this aspect of the law or resolve future cases. See, e.g., Holland, 560 U.S. at 650, 130 S. Ct. 2549 (stating that courts adjudicating equitable-tolling cases “exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.“); Robertson, 624 F.3d at 785 (“Whether equitable tolling is warranted is a fact-intensive inquiry best left to the district courts.“). As stated above, we excuse waiver when doing so would “promote finality in litigation,” In re Morris, 260 F.3d at 664, and Henson‘s case presents the exact opposite situation: if we were to excuse Henson‘s waiver, it would necessarily require remanding his case for additional proceedings.
Henson‘s arguments that we should excuse his waiver thus fail. However, taking just a glimpse at the merits of his appeal, it is clear that Henson is not entitled to relief. To satisfy the first factor of the Holland test, a petitioner has the burden of showing that he pursued his claim with “reasonable diligence.” Holland, 560 U.S. at 653, 130 S. Ct. 2549. Here, Henson had reason to know (and appears to concede as much) that on October 26, 2011, the date the state appellate court sitting in post-conviction review issued its ruling, the AEDPA statute of limitations had not been tolled by the filing of his state post-conviction motion. This was over nine months before he filed his
IV.
For the foregoing reasons, we AFFIRM the order of the district court.
FINANCIAL STRATEGY GROUP, PLC, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY, Defendant-Appellee.
No. 14-6296.
United States Court of Appeals, Sixth Circuit.
Aug. 4, 2015.