United States District Court, W.D. Michigan, Southern Division
MEMORANDUM OPINION AND ORDER
HOLMES BELL UNITED STATES DISTRICT JUDGE.
a habeas corpus petition brought by a state prisoner under
the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C.
§ 2254. On December 6, 2016, Magistrate Judge Phillip
Green issued a Report and Recommendation
(“R&R”) recommending that the Court deny the
petition as meritless. (ECF No. 34.) The matter is before the
Court on Petitioner's objections to the R&R (ECF No.
36) and his motion for reconsideration for his request to
appoint counsel (ECF No. 35).
Court is required to make a de novo review upon the
record of those portions of the R&R to which specific
objections have been made, and 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); see also Miller v. Currie, 50 F.3d 373, 380
(6th Cir. 1995) (“[A] general objection to a
magistrate's report, which fails to specify the issues of
contention, does not satisfy the requirement that an
objection be filed. The objections must be clear enough to
enable the district court to discern those issues that are
dispositive and contentious.”).
makes several objections to the R&R. First, he raises two
“new issues.” He argues that the Court's
deferential application of the AEDPA violates the Fourteenth
Amendment right to substantive due process. He also argues
that the AEDPA violates his First Amendment right to petition
the Court for grievances. Next, Petitioner objects to the
Magistrate Judge's conclusion that his Eighth Amendment
claim is without merit.
Petitioner's new claims raised in his objection were not
raised before the Magistrate Judge, and are arguably waived
on that basis. See Murr v. United States, 200 F.3d
895, 902 n.1 (6th Cir. 2000) (“Petitioner's failure
to raise this claim before the magistrate constitutes
waiver.”); see also United States v. Waters,
158 F.3d 933, 936 (6th Cir. 1998) (noting that although the
Magistrate Judge Act, 28 U.S.C. § 631 et seq.,
permits de novo review by the district court if
timely objections are filed, absent compelling reasons, it
does not allow parties to raise at the district court stage
new arguments or issues that were not presented to the
magistrate); Marshall v. Chater, 75 F.3d 1421,
1426-27 (10th Cir. 1996) (collecting cases holding that
issues raised for the first time in objections to a
magistrate judge's report and recommendation are deemed
waived); but see Moore v. Prevo, 379 F. App'x
425, 428 n.6 (6th Cir. 2010) (construing presentation of new
claims in objection to R&R, where R&R was sua sponte
response to pro se plaintiff's complaint, as implicit
request for leave to amend).
case, Petitioner's new claims fail on the merits. The
Supreme Court has never held that a federal court's
deferential application of the AEDPA directly violated a
petitioner's substantive due process or First Amendment
rights. Rather, the Supreme Court has consistently applied
deferential review of § 2254 petitions. See, e.g.,
Harrington v. Richter, 562 U.S. 86, 105 (2011) (noting
that the AEDPA's § 2254(d) standard is “highly
deferential”); Lindh v. Murphy, 521 U.S. 320,
333 n.7 (1997) (noting “§ 2254(d)'s new,
highly deferential standard for evaluating state-court
rulings”). Petitioner does not have an unqualified
right to seek habeas review in federal court. He must satisfy
all of the AEDPA's requirements, including §
2254(d)'s highly deferential standard, in addition to any
requirements imposed by the Supreme Court. Therefore, even if
Petitioner did not waive these claims by failing to present
them to the Magistrate Judge, they are meritless, and
Petitioner is not entitled to habeas relief.
Petitioner objects to the Magistrate Judge's assessment
of his Eighth Amendment claim. He argues that the Magistrate
Judge's reliance on United States v. Thomas, 49
F.3d 253 (6th Cir. 1995) is misplaced because the case is 20
years old and society's concept of justice has advanced
since then. Petitioner contends that the Sixth Circuit's
claim that “federal courts will not engage in a
proportionality analysis except in cases where the penalty
imposed is death or life without parole” is outdated.
Id. at 261. Yet Thomas is still good law.
Since Thomas, the Supreme Court has only engaged in
proportionality analysis in the context of the death penalty
and life without parole. See, e.g., Montgomery v.
Louisiana, 136 S.Ct. 718 (2016) (mandatory life without
parole for juvenile homicide offenders); Hall v.
Florida, 134 S.Ct. 1986 (2014) (death penalty for the
intellectually disabled); Kennedy v. Louisiana, 554
U.S. 407 (2008) (death penalty); Roper v.
Simmons, 543 U.S. 551 (2005) (death penalty for juvenile
offenders); Atkins v. Virginia, 536 U.S. 304 (2002)
(death penalty for mentally-retarded criminals). Petitioner
was not sentenced to the death penalty or life without
parole, nor is he a juvenile offender. Therefore,
sentence-proportionality analysis is not appropriate.
Petitioner argues that he was sentenced as punishment for a
mental disorder. But Petitioner pleaded guilty to bank
robbery; and the court sentenced Petitioner on the basis of
his guilty plea, not his mental illness. See United
States v. Organek 65 F.3d 60, 62 (6th Cir. 1995)
(“[A]lthough Organek's psychiatric histor y w a s e
v i d e n t l y a f a c t o r t h a t the district court
considered when imposing sentence, Organek was not sentenced
because of his mental illness[.]”). There is nothing in
the record to support Petitioner's claim that he was
sentenced as punishment for his mental illness.
R&R accurately recites the facts and correctly applies
pertinent law. The Court agrees with and adopts the
Magistrate Judge's analysis of Petitioner's claims.
With regard to the sections of the R&R not specifically
objected to, the Court has reviewed the matters and concludes
that the R&R correctly analyzes the issues and makes a
a certificate of appealability is not granted under 28 U.S.C.
§ 2253(c)(2). A certificate should issue only if
Petitioner has demonstrated “a substantial showing of a
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). The Sixth Circuit Court of Appeals has
disapproved of the issuance of blanket denials of a
certificate of appealability. Murphy v. Ohio, 263
F.3d 466 (6th Cir. 2001). Rather, the Court must
“engage in a reasoned assessment of each claim”
to determine whether a certificate is warranted. The Court
must assess each claim under the standard set forth in
Slack v. McDaniel, 529 U.S. 473 (2000). Under
Slack, Petitioner “must demonstrate that
reasonable jurists would find the district court's
assessment of constitutional claims debatable or
wrong.” Id. at 484. For the reasons stated in
the R&R and above, reasonable jurists would not conclude
that this Court's assessment of Petitioner's claims
is debatable or wrong. Therefore, the Court denies Petitioner
a certificate of appealability.
the Court finds that Petitioner's claims are without
merit, and denies a certificate of appealability,
Petitioner's motion for reconsideration for his request
to appoint counsel is moot. Further, to succeed on a motion
for reconsideration, Petitioner must “not only
demonstrate a palpable defect by which the Court and the
parties have been misled, but also show that a different
disposition of the case must result from a correction
thereof.” W.D. Mich. LCivR 7.4(a). “A defect is
palpable if it is easily perceptible, plain, obvious, readily
visible, noticeable, patent, distinct or manifest.”
Witherspoon v. Howes, No. 1:07-cv-981, 2008 WL
4155350, at *1 (W.D. Mich. Sep. 5, 2008) (citing
Compuware Corp. v. Serena Software Int'l, Inc.,
77 F.Supp.2d 816, 819 (E.D. Mich. 1999)). The decision to
grant or deny a motion for reconsideration under this Local
Rule falls within the district court's discretion.
See Evanston Ins. Co. v. Cogswell Props., LLC, 683
F.3d 684, 691 (6th Cir. 2012). Petitioner has not shown a
palpable defect in the Court's decision nor has he shown
that a different disposition must result. Accordingly, IT IS
HEREBY ORDERED that the R&R (ECF No. 34) is APPROVED and
ADOPTED as the opinion of the Court.
FURTHER ORDERED that Petitioner's objections to the
R&R (ECF No. 36) are OVERRULED.
FURTHER ORDERED that Petitioner's motion for
reconsideration of the request to appoint counsel (ECF No.
35) is DENIED as moot.
FURTHER ORDERED that a certificate of appealability is
DENIED. 28 U.S.C. § 2253(c). Reasonable jurists would
not disagree with the Court's conclusion that the claims