United States District Court, W.D. Michigan, Southern Division
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND
HOLMES BELL UNITED STATES DISTRICT JUDGE.
a habeas corpus petition brought by a state prisoner under 28
U.S.C. § 2254. The matter was referred to Magistrate
Judge Phillip Green, who issued a Report and Recommendation
(“R&R”) on December 6, 2016, recommending
that this Court deny the petition on its merits. (ECF No.
58.) The matter is before the Court on Petitioner's
objections to the R&R. (ECF No. 61.)
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.”).
objects to the Magistrate Judge's conclusion that his
petition is without merit. In his objection, Petitioner
raises the same arguments that he already set forth in his
petition and attaches his previously-filed brief in support
as an exhibit. The Court has conducted a de novo
review of the record, and finds that the R&R accurately
recites the f a c ts and correctly applies pertinent law.
Thus, the Court agrees with and adopts the Magistrate
also wrote a letter to the clerk, inquiring about his
previously-filed motion for an evidentiary hearing (ECF No.
4) that was denied by Magistrate Judge Scoville, pending the
Court's plenary review of the case (ECF No. 7). (ECF No.
62.) An evidentiary hearing is not mandatory. Section
[i]f the applicant has failed to develop the factual basis of
a claim in State court proceedings, the court shall not hold
an evidentiary hearing on the claim unless the application
(A) the claim relies on--
(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for the
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). “The strictures of §
2254(e)(2) do not apply, however, where an applicant has not
failed to develop-i.e., has been diligent in developing-the
factual basis of his claim in state court.”
Robinson v. Howes, 663 F.3d 819, 824 (6th Cir. 2011)
(citing Williams v. Taylor, 529 U.S. 420, 432
(2000)). “Diligence for purposes of § 2254(e)(2)
depends upon ‘whether the prisoner made a reasonable
attempt, in light of the information available at the time,
to investigate and pursue claims in the state
court.'” Id. (quoting McAdoo v.
Elo, 365 F.3d 487, 500 (6th Cir. 2004) (internal
quotation omitted)). Where an applicant has been diligent,
the decision to grant an evidentiary hearing is left to the
district court's sound discretion. Id. (citing
Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
(noting that AEDPA did not change the “basic
rule” that the decision to grant an evidentiary hearing
is left to the discretion of the district courts, though
AEDPA deference should guide the decision)).
appellate counsel filed an amended motion for a new trial
and/or Ginther hearing on September 4, 2007. (ECF
No. 5-1, PageID.218-24.) The trial court denied the motion
(ECF No. 13), and the Michigan Court of Appeals affirmed (ECF
No. 50). Petitioner also filed a motion for relief from
judgment, raising claims of ineffective assistance of trial
counsel, which the trial court denied. (ECF Nos. 47, 5-2.)
Because Petitioner has diligently pursued the factual basis
of his ineffective assistance of counsel claim, §
2254(e)(2) does not apply.
the Court must taken into account § 2254's
deferential standards when deciding whether to grant an
evidentiary hearing. See Schriro, 550 U.S. at 465.
Thus, the Court must consider “whether the hearing
could enable an applicant to prove the petition's factual
allegations, which, if true, would entitle the applicant to
federal habeas relief.” Id. “[I]f the
record refutes the applicant's factual allegations or
otherwise precludes habeas relief, a district court is not
required to hold an evidentiary hearing.” Id.
succeed on an ineffective assistance of counsel claim,
Petitioner must establish that (1) trial counsel's
performance fell below an objective standard of
reasonableness; and (2) there is a reasonable probability
that, but for counsel's deficient performance, the
outcome of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 694 (1984).
A reasonable probability is one that is “sufficient to
undermine confidence in the outcome.” Id.
Movant bears the burden of proof for each prong, and the
Court may dismiss a claim of ineffective assistance of
counsel if she fails to carry her burden of proof on either
one. Id. at 687, 697. When evaluating the
Strickland prongs, the Court must afford
“tremendous deference to trial counsel's
decisions.” Campbell v. Coyle, 260 F.3d 531,
551 (6th Cir. 2001). There is a strong presumption that
counsel's conduct fell within the wide range of