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Miller v. Curtin

March 3, 2010

TONY MILLER, PETITIONER,
v.
CINDI CURTIN, RESPONDENT.



The opinion of the court was delivered by: Robert Holmes Bell United States District Judge

HON. ROBERT HOLMES BELL

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION IN PART

This matter is before the Court on a habeas corpus petition filed pursuant to 28 U.S.C. § 2254 by Petitioner Tony Miller. (Dkt. No. 42.) The Magistrate Judge has issued a Report and Recommendation ("R&R") recommending that this Court deny the petition. (Dkt. No. 43.) Petitioner has filed objections to the R&R. (Dkt. No. 44.)

This Court makes a de novo determination of issues in an R&R to which specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court may accept, reject, or modify any or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

First, Petitioner objects to the conclusion of the R&R that Petitioner failed to satisfy the second two prongs of the test in Duren v. Missouri, 439 U.S. 357 (1979), for whether the composition of his jury panel violated the fair cross-section requirement of the Sixth Amendment, i.e.:

(2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and

(3) that this under-representation is due to systematic exclusion of the group in the jury-selection process.

Id. at 364. In his objections, Petitioner contends that the Magistrate Judge ignored his proffer of the census report for Wayne County in 2004 and a newspaper article from 2006 stating that reports had indicated that 42% of Wayne County's residents were African-American while only 27% of those reporting for jury duty were African-American. However, the foregoing evidence fails to satisfy Petitioner's burden, and his reliance on Smith v. Berghuis, 543 F.3d 326 (6th Cir. 2008), is misplaced. Petitioner has not offered any evidence of a general disparity from the time of his proceedings in 2004. Cf. id. at 340 (noting evidence of a "persistent disparity" over a period of seventeen months, including the month in which the petitioner's jury was drawn). Nor has Petitioner identified any processes used in Wayne County during the time of his proceedings that might have resulted in the systematic exclusion of African-Americans from the jury-selection process. See id. at 343 (noting that "the proof must be sufficient to support an inference that a particular process results in the under-representation of a distinctive group") (emphasis added). Thus, Petitioner's claim fails for the foregoing reasons as well as those stated in the R&R.

Second, Petitioner objects to the denial of his claim that the jury selection in his case violated his right to equal protection. Petitioner cites Castaneda v. Partida, 430 U.S. 482 (1977), but does not identify any error in the R&R. On de novo review, the Court agrees with the determination of the Magistrate Judge for the reasons stated in the R&R.

Third, Petitioner objects to the determination that the admission of testimony regarding ammunition found at his residence did not deprive him of a fair trial. Petitioner indicates in his objections that the officer that discovered the ammunition testified that one type of ammunition found at his residence was unrelated to the shooting for which Petitioner was charged because it was for a different caliber of firearm. (See Dkt. No. 20, Trial Tr. 175-76.) On de novo review, the Court agrees with the R&R that the admission of this evidence did not violate fundamental fairness, in part because it served to demonstrate Petitioner's access to a weapon. Even if the ammunition found at his residence was not of the same type as that used in the shooting, it was still relevant to the charge of being a felon in possession of a firearm. Moreover, considering that several different types of ammunition were discovered at Petitioner's residence (Id. at 173-74), the Court is not persuaded that the admission of evidence regarding one additional form of ammunition denied Petitioner a fair trial. Petitioner's assertion that photographs, rather than witness testimony, were necessary to lay a foundation for the admission of this evidence is without merit.

Fourth, Petitioner restates his arguments regarding his sufficiency-of-the-evidence claim, but he does not identify any error in the R&R, or indicate how the state court's denial of this claim was contrary to or involved an unreasonable application of federal law.

Fifth, Petitioner objects to the determination that his counsel was not ineffective for failing to present his girlfriend, Tamichia Latham, as an alibi witness. In a statement signed in September of 2004 Ms. Latham asserts:

. . . I can't feel Tony Millers [sic] attorney didn't represent his case to the best of his ability. I was a witness, Tony was home with me. The police came to my house, questioned Tony and released him. Tonys [sic] attorney knew this but said that I didn't need to testify. Tony wanted me to testify. (Dkt. No. 1, App'x C.)

The Magistrate Judge determined that the affidavit was insufficient support for Petitioner's ineffective assistance claim under the prejudice prong of Strickland because the vague assertion by Petitioner's girlfriend that "Tony was home with me" lacks context and, thus, is not an alibi. (R&R 24.) Second, the Magistrate Judge determined that Petitioner did not offer any evidence ...


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