The opinion of the court was delivered by: Hon. Robert J. Jonker
ORDER APPROVING REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge's Report and Recommendation (docket # 58), Respondent's objection to it (docket # 59), Petitioner's objection to it (docket # 60), and Petitioner's response to Respondent's objections (docket # 61). 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 ANDPROCEDURE§ 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 Jeffrey Duane Cox's motion to amend should be denied, but his petition for a writ of habeas corpus under 28 U.S.C. § 2254 should be conditionally granted.
Following a trial, a jury convicted Mr. Cox of two counts of third-degree criminal sexual conduct ("CSC III") under Mich. Comp. Laws 750.520d(1)(c). The conviction was for engaging in sexual contact with an alleged mentally incapable person. The alleged victim was 17 at the time of the offense and therefore an adult for the purposes of the crime, but the state asserted that the victim was not mentally capable of consenting to the acts. Less than two weeks before filing the felony complaint against Mr. Cox, however, the state authorized a felony complaint against Timothy Cieslak, Mr. Cox's purported victim. Mr. Cieslak was found by the court to be mentally competent to enter a guilty plea in his criminal case. Additionally, Mr. Cieslak appeared at a hearing on a bench warrant which was issued for his failure to pay his fine and costs. Although Mr. Cox sent the prosecution a discovery request for information it had related to Mr. Cieslak's criminal record, the prosecution did not turn over any of this potentially exculpatory evidence to Mr. Cox. Mr. Cox's first trial resulted in a hung jury. On retrial, the Calhoun County Prosecutor argued extensively during his opening and closing statements that Mr. Cieslak could not consent to sex with Mr. Cox because he had only the mental capacity of a child. The prosecutor further argued that Mr. Cox was a predator who preyed on, groomed, and manipulated young boys. In the second trial, the jury found Mr. Cox guilty of engaging in sexual contact with an adult who was mentally incapable of consenting to the acts.
Mr. Cox, with counsel, raised four issues on direct appeal. He contended that (1) his conviction was constitutionally deficient because there was insufficient evidence, (2) he was entitled to a new trial based on the suppression of exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), or based on newly discovered exculpatory evidence, (3) he was denied a fair trial by the prosecution's impermissible and inflamatory comments, and (4) he should be resentenced because his offense was mis-scored and he was sentenced on the basis of inaccurate information. The Michigan Court of Appeals, over a vigorous dissent, denied Mr. Cox's motion for a new trial and affirmed his conviction. Mr. Cox raised those same four issues in his application for leave to appeal to the Michigan Supreme Court, which the Court denied.
Mr. Cox then filed in the Eastern District of Michigan a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The action was transferred to this district and Mr. Cox amended his petition to raise the same four grounds he raised on direct appeal. After he filed a motion for discovery on the issue of Mr. Cieslak's criminal record and the State failed to respond, this Court appointed a federal public defender to represent Mr. Cox and granted the motion for discovery. The record before the Court therefore has been expanded to include several documents related to Mr. Cieslak's felony charge, plea, and sentencing.
Mr. Cox 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, however, he must exhaust his claims by fairly presenting them to all available state courts. See 28 U.S.C. § 2254(b)(1)(A).
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. Cox's motion to amend (docket # 51) be denied. It further recommends that Mr. Cox's section 2254 petition for a new trial be conditionally granted on the grounds that (1) the prosecutor committed a Brady violation, (2) the prosecutor engaged in misconduct, and (3) the assistance of trial counsel was ineffective. See Rule 8, Rules Governing § 2254 Cases in the United States District Courts. The Report and Recommendation additionally recommends that, unless a date for a new trial is scheduled within ninety days of this order granting the writ, Mr. Cox be unconditionally released from custody and the charges be dismissed. The Respondent raises ...