The opinion of the court was delivered by: Honorable Paul L. Maloney
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OVER OBJECTIONS
Toran Peterson, a prisoner under the control of the Michigan Department of Corrections (MDOC), filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. In 2000, Mr. Peterson (Petitioner) was convicted by a jury of first degree murder and possession of a firearm during the commission of a felony. The magistrate judge has issued a report recommending the petition be denied. Petitioner filed objections.
After being served with a report and recommendation (R&R) issued by a magistrate judge, a party has ten days to file written objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005). A district court judge reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). Only those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district court need not provide de novo review where the objections are frivolous, conclusive or too general because the burden is on the parties to "pinpoint those portions of the magistrate's report that the district court must specifically consider"). The United States Supreme Court has held that the statute does not "positively require some lesser review by the district court when no objections are filed." Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to file an objection results in a waiver of the issue and the issue cannot be appealed. Sullivan, 431 F.3d at 984; see also Arn, 474 U.S. at 155 (upholding the Sixth Circuit's practice). The district court judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b).
Petitioner asserts the magistrate judge, who he refers to as "lead prosecutor," is biased because the magistrate judge has "taken everything and twisted it." (Obj., 1.) Prejudice or bias must arise from some extra-judicial source and typically not from a judge's ruling or participation in an action. Ullmo v. Gilmore Acad., 273 F.3d 671, 681 (6th Cir. 2001); see Liteky v. United States, 510 U.S. 540, 555-56 (1994). Petitioner has not established the magistrate judge is biased or that a reasonable person would question the magistrate judge's impartiality.
Petitioner identifies several factual discrepancies with the background material provided in the report and recommendation. Petitioner has not explained how these factual disputes are material to any of his claims or the resolution of those claims.
Claims 1-4 involve claims for ineffective assistance of trial counsel. Claim 5 asserts ineffective assistance of appellate counsel for failing to raise claims 1-4 on direct appeal. The magistrate judge's review of the law regarding procedural default is accurate and the recommendations are well taken. Petitioner argues, without authority, that federal courts must take an independent look at claims which were barred in state court. Alleging ineffective assistance of appellate counsel, Petitioner claims to have good cause for failing to raise the issues in his post-conviction motions.*fn1
Petitioner's objections do not undermine the well reasoned conclusions contained in the report. Petitioner's first four claims have been procedurally defaulted. In the state circuit court's opinion denying Petitioner's collateral attack filed under M.C.R. 6.508, the court concluded Petitioner could not establish good cause for failing to raise claims for ineffective assistance of trial counsel on direct appeal because appellate counsel was not ineffective. Both the Michigan Court of Appeals and the Michigan Supreme Court issued summary orders denying Petitioner's leave to appeal because he failed to establish entitlement to relief under M.C.R. 6.508(D). The Sixth Circuit Court of Appeals has consistently applied the procedural default rule to similar or identical orders of the Michigan courts. See Alexander v. Smith, 311 F.App'x 875, 880-84 (6th Cir. 2009).
Petitioner's fifth claim, that appellate counsel was ineffective for failing to raise the ineffectiveness of trial counsel, might provide cause for failing to raise the defaulted claims. Howard v. Bouchard, 405 F.3d 459, 478 (6th Cir. 2005). To establish that appellate counsel was ineffective where appellate counsel raise some effectiveness of trial counsel claims, a petitioner must show that the issues raised were "clearly stronger that the issues that counsel did present." Alexander, 311 F.App'x at 885 (quoting Smith v. Robbins, 528 U.S. 288-89 (2000) and Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003)). Petitioner must also show that, but for appellate counsel's unreasonable failure, he or she had a reasonable probability of prevailing on appeal. Id. (quoting Robbins, 528 U.S. at 285). Appellate counsel need not raise every non-frivolous claim on direct appeal. Jones v. Barnes, 463 U.S. 745, 751-52 (1983). "To be sure, 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Joshua, 341 F.3d at 441 (quoting Smith v. Murray, 477 U.S. 527, 536 (1986)). By these standards, Petitioner is not entitled to habeas relief on the basis of any of the first five claims. Petitioner has not established that appellate counsel's strategic choices were inherently flawed in that the seven claims for ineffective assistance of counsel ...