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Michael Allan Frost v. Paradise Baxter Sci Albion

September 28, 2011

MICHAEL ALLAN FROST, PETITIONER,
v.
PARADISE BAXTER SCI ALBION, ET AL., RESPONDENTS.



The opinion of the court was delivered by: District Judge Sean J. McLaughlin

Magistrate Judge Susan

MEMORANDUM ORDER SEAN J. McLAUGHLIN, District Judge.

This habeas action filed by Michael Allan Frost was referred to United States Magistrate Judge Susan Paradise Baxter for a report and recommendation in accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Local Rules for Magistrate Judges. On September 7, 2011, the Magistrate Judge issued a Report and Recommendation ("R&R") [ECF No. 60], in which she recommended that the petition be denied as untimely and that a certificate of appealability ("COA") be denied. She further recommended that Frost's outstanding motions [ECF Nos. 57, 58, and 59] be denied as moot. On September 19, 2011, Frost filed Objections [ECF No. 61] to the R&R.

Where, as here, objections have been filed, the Court is required to make a de novo determination as to those portions of the R&R to which objections were made. See 28 U.S.C. § 636(b)(1). Accordingly, this Court has carefully examined de novo all claims raised by Frost in his Objections and we agree with the Magistrate Judge that his habeas petition is untimely and that he is not entitled to a COA on any of his claims. Frost's Objections are overruled and we approve and adopt the R&R, as supplemented herein. We write only to address his contention that his petition should be construed as being filed pursuant to 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254.

I.

In the R&R, the Magistrate Judge explained that this proceeding is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996 ("AEDPA"). That statute provides:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a) (emphasis added).

AEDPA requires, with a few exceptions not applicable here, that habeas corpus petitions under § 2254 be filed within one year of the date the petitioner's judgment of sentence became final. 28 U.S.C. § 2244(d)(1)(A). Because Frost did not meet that deadline, the Magistrate Judge explained, his federal habeas claims are untimely and they must be denied for that reason.

In his Objections, Frost insists that his federal habeas petition should be construed as being filed pursuant to 28 U.S.C. § 2241, which provides:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. The order of a circuit judge shall be entered in the records of the district court of the district wherein the restraint complained of is had. - - -

(c) The writ of habeas corpus shall not extend to a prisoner unless --

(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or

(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a ...


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