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Nolen v. Hofbauer

March 12, 2010

ARLANDUS M. NOLEN, PETITIONER,
v.
GERALD HOFBAUER, RESPONDENT.



The opinion of the court was delivered by: Gordon J. Quist United States District Judge

HON. GORDON J. QUIST

ORDER ADOPTING REPORT AND RECOMMENDATION

The Court has before it Petitioner's Objection to the report and recommendation dated November 19, 2009, in which Magistrate Judge Greeley recommended that Petitioner's habeas petition be denied. Petitioner raised the following claims:

I. Lack of probable cause to bind Petitioner over for trial.

II. Violation of 14 day rule -- right to speedy trial.

III. Violation of due process -- destruction of evidence.

IV. Ineffective assistance of trial counsel.

V. Violation of constitutional right to a speedy trial.

VI. Presentation of false evidence.

VII. Petitioner was in shackles in the presence of the jury.

VIII. Trial court erred by assigning Petitioner an attorney that he had a conflict of interest with.

The magistrate judge concluded that all of Petitioner's claims should be rejected because they lack merit. First, regarding lack of probable cause and violation of the fourteen day rule under M.C.L. § 766.4 and the 180 day rule under M.C.L. § 780.131, the magistrate judge concluded that these are solely issues of state law for which federal habeas relief is unavailable. Second, the magistrate judge concluded that the Michigan Court of Appeals properly considered the four factors in Barker v. Mingo, 407 U.S. 514, 92 S.Ct. 2182 (1972), in addressing Petitioner's speedy trial claim under the Sixth Amendment and, therefore, its rejection of that claim was not unreasonable. Third, the magistrate judge concluded that Petitioner could not show that his due process rights were violated when two pieces of evidence were destroyed before Petitioner could make a request for production because Petitioner failed to show either that the evidence was exculpatory or that the government destroyed it in bad faith. Fourth, the magistrate judge concluded that Petitioner's claim of ineffective assistance of counsel should be rejected because Petitioner failed to show that his counsel's alleged errors were not sound trial strategy. Fifth, the magistrate judge concluded that Petitioner's claim that the prosecutor elicited false testimony from Lieutenant Michael Yon should be rejected because Petitioner failed to show that false testimony was presented or that the prosecutor knowingly elicited false testimony. Sixth, the magistrate judge concluded that Petitioner's shackling claim should be rejected because Petitioner failed to show that prejudice resulted from any juror viewing him in shackles. Finally, the magistrate judge concluded that the Michigan Court of Appeals' decision rejecting Petitioner's claim that the trial court erred in reappointing Petitioner's counsel after Petitioner decided that he no longer represented himself was not unreasonable and that Petitioner's appellate counsel was not ineffective.

In his Objection, Petitioner focuses upon his claims of ineffective assistance of counsel, failure to appoint new counsel, shackling, and violation of his right to a speedy trial. Although Petitioner does not specifically address the other claims that the magistrate judge concluded should be rejected, Petitioner states that he relies on the same arguments for those claims that he presented to the magistrate judge. Because Petitioner did not specifically object to those portions of the magistrate judge's report and recommendation, the Court will treat those claims as waived. As the Sixth Circuit has observed:

This circuit has established that failure to file objections to a magistrate judge's report and recommendation constitutes a waiver of the right to appeal. United States v. Real Prop. Located at 1184 Drycreek Rd., Granville, Ohio 43023, 174 F.3d 720, 725 (6th Cir. 1999). [Plaintiff] did file a timely objection. However, not only must objections be timely, they must also be specific; an objection to the report in general is not sufficient and results in waiver of further review. Miller ...


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