The opinion of the court was delivered by: Robert J. Jonker United States District Judge
ORDER APPROVING REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge's Report and Recommendation (docket # 36) and Petitioner's objection to it (docket # 44). Under the Federal Rules of Civil Procedure, where, as here, a party has objected to portions of a Report and Recommendation, "[t]he district judge . . . has a duty to reject the magistrate judge's recommendation unless, on de novo reconsideration, he or she finds it justified." 12 WRIGHT, MILLER, & MARCUS, FEDERALPRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997). Specifically, the Rules provide that:
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.
FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C). De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). After de novo review, the Court concludes that Petitioner Nolan Hall's petition for a writ of habeas corpus under 28 U.S.C. § 2254 should be denied.
Following a trial in 2003, the jury convicted Mr. Hall of second-degree murder under Mich. Comp. Laws 750.317. He was sentenced as a fourth habitual offender to forty to sixty years' imprisonment. Mr. Hall, with counsel, raised six issues on direct appeal and a seventh through a supplemental brief. The Michigan Court of Appeals affirmed the conviction, but it remanded for resentencing because Mr. Hall was not properly convicted of the habitual fourth offender charge. On remand, the trial court resentenced Mr. Hall to thirty-two to fifty years' imprisonment.
Through counsel, Mr. Hall then raised four issues in his application for leave to appeal to the Supreme Court of Michigan: (1) the government violated due process by bringing him to trial twenty-one years after the offense was committed, which deprived him of evidence in his defense; (2) he was denied a fair trial because the trial court denied his motion for mistrial after the prosecutor argued in closing that Mr. Hall's prior arrest on a gun charge was relevant to his credibility; (3) he was denied the right to present a defense because the trial court excluded hearsay statements, made by a deceased cab driver, that were critical to his defense; and (4) he was denied effective assistance of counsel because his counsel failed to interview and call to trial defense witnesses. The Supreme Court denied his request for leave to appeal.
Mr. Hall now has filed a petition seeking habeas relief under section 2254 on the four issues discussed in his original appeal.
Mr. Hall seeks relief under section 2254, which provides that "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. Before a petitioner may seek federal relief under section 2254, he must exhaust his claims by fairly presenting them to all available state courts. See 28 U.S.C. § 2254(b)(1)(A). Here, Mr. Hall properly exhausted his claims.
Where the state court has adjudicated the petitioner's claims on the merits, the federal court's section 2254 review is limited by the Antiterrorism and Effective Death Penalty Act of 1996. AEDPA prevents federal courts from retrying state cases and "ensure[s] that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693-94 (2002). Under AEDPA, an application for writ of habeas corpus cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).
A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams v. Taylor, 529 U.S. 362, 411 (2000). Instead, the issue is whether the state court's application of clearly established federal law is "objectively unreasonable." Id. at 410. Additionally, AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The Report and Recommendation recommends that Mr. Hall's section 2254 petition be denied without an evidentiary hearing. It concludes that the Court of Appeals decided each of Mr. Hall's contentions on the merits, and none of the Court of Appeals' conclusions were contrary to clearly established federal law, an unreasonable application of clearly established federal law, or based upon an unreasonable determination of the facts in light of the evidence presented in the state court ...