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Bailey v. Woods

United States District Court, W.D. Michigan, Northern Division

January 18, 2017

QUANTAE DERRILL BAILEY, Petitioner,
v.
JEFFREY WOODS, Respondent.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

          GORDON J. QUIST, UNITED STATES DISTRICT JUDGE

         On July 25, 2016, Magistrate Judge Timothy P. Greeley issued a Report and Recommendation (R & R) recommending that the Court deny Petitioner's habeas petition and deny Petitioner a certificate of appealability. Petitioner raised the following issues in his petition:

I. Prosecutorial misconduct in closing argument denied Mr. Bailey his due process right to a fair trial.
II. Defense trial counsel was constitutionally ineffective in violation of the Sixth amendment by failing to object to the instances of prosecutorial misconducts [sic] in closing arguments.
III. The trial court's [sic] abused it's [sic] discretion when it denied Defendant[‘s] motion for relief from judgment, motion for bond, and motion for [an] evidentiary hearing, and declined to adjudicate the issues presented on it's [sic] merits.
IV. Defense trial counsel was constitutionally ineffective in violation of the Sixth Amendment by failing to investigate, interview, and present exculpatory alibi witnesses, also by failing to comply with the notice of alibi defense MCL 768.20 and by failing to impeach the prosecution[‘s] key witnesses with their criminal offenses.
V. Defender appellate counsel was constitutionally ineffective in violation of the Sixth Amendment by failing to raise the above issues in Defendant's initial appeal of right which is sufficient for showing good cause.

(ECF No. 1 at PageID.6-7, 9-10, 12.)

         With regard to Petitioner's prosecutorial misconduct claim, although Respondent argued that such claim was procedurally defaulted, the magistrate judge considered the claim on the merits and concluded that the three instances of alleged prosecutorial misconduct did not warrant habeas relief. (ECF No. 18 at PageID.1462-65.) The magistrate judge next concluded that Petitioner's ineffective assistance of counsel claim in claim II failed because counsel could not have been ineffective for failing to object when there were no instances of prosecutorial misconduct. Thus, the magistrate judge concluded that the Michigan Court of Appeal's decision was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. (Id. at PageID.1467.) With regard to Petitioner's third claim, the magistrate judge concluded that such claim raised only state-law issues not subject to federal habeas review. (Id. at PageID.1468.) With regard to Petitioner's fourth claim-ineffective assistance based on trial counsel's failure to investigate, interview, and present exculpatory alibi witnesses at trial, failure to comply with the notice of alibi defense requirement under M.C.L. § 768.20, and failure to impeach the prosecution's key witnesses with their criminal histories-the magistrate judge analyzed the claim on the merits, although Respondent argued the claim was procedurally defaulted. The magistrate judge concluded that trial counsel was not ineffective for failing to investigate, interview, and present exculpatory alibi witnesses at trial because, even if counsel's performance was deficient, Petitioner failed to demonstrate prejudice. In particular, the magistrate judge noted that it was unlikely that the testimony of Petitioner's alibi witnesses would have overpowered the weight of two eyewitnesses, including the victim, who were able to identify Petitioner and describe how the crime occurred. The magistrate judge also concluded that, because counsel's failure to file a notice of alibi defense was based on trial counsel's failure to call the alibi witnesses, Petitioner could not have been ineffective as no prejudice resulted. The magistrate judge also concluded that Petitioner's claim that trial counsel was ineffective for failing to question the eyewitnesses about their criminal histories should be denied because Petitioner did not identify the crimes of which the eyewitnesses had been convicted. (Id. at PageID.1471.) Finally, the magistrate judge concluded that Petitioner's ineffective assistance of appellate counsel claim fails because appellate counsel did raise two claims, could not have raised two other claims, and Petitioner failed to show that the remaining claim, relating to alibi witnesses, was clearly stronger than the two issues appellate counsel chose to raise on appeal. (Id. at PageID.1472-73.)

         Petitioner has filed Objections to the R & R. Pursuant to 28 U.S.C. § 636(b), upon receiving an objection to a report and recommendation, the district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” After conducting a de novo review of the R & R, Petitioner's Objection, and the pertinent portions of the record, the Court concludes that the R & R should be adopted and the petition denied.

         Initially, the Court notes that in his Objections, Petitioner states that he relies on his prior filings. To the extent Petitioner fails to provide specific reasons for his Objections, such will be overruled. The Sixth Circuit has held that objections to a report and recommendation must be specific. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “The filing of vague, general, or conclusory objections does not meet the requirement of specific objections and is tantamount to a complete failure to object.” Drew v. Tessmer, 36 F. App'x 561 (6th Cir. 2002).

         Petitioner's only specific objections relate to his ineffective assistance of trial counsel claim regarding counsel's failure to investigate and present alibi witnesses at trial and to file a notice of alibi defense and Petitioner's ineffective assistance of appellate counsel claim for failing to raise these arguments on appeal.

         Petitioner argues that the magistrate judge erred in concluding that, assuming trial counsel's performance was deficient, Petitioner's claim fails because he cannot show that counsel's deficient performance affected the outcome of his trial. The magistrate judge reasoned that because the prosecution presented two eye-witnesses who identified Petitioner and described how the crime occurred, it was unlikely that Petitioner's proffered alibi witnesses would have overpowered the strong weight of the eyewitness testimony. (Id. at PageID.1470.) The Court disagrees with the magistrate judge's assessment because eyewitness testimony “is often times extremely unreliable.” Moss v. Hofbauer, 286 F.3d 851, 874 (6th Cir. 2002) (citing, among others, Watkins v. Sowders, 449 U.S. 341, 349-50, 101 S.Ct. 654, 659 (1981) (Brennan, J., dissenting)); see also United States v. Russell, 532 F.2d 1063, 1066 (6th Cir. 1976) (“There is a great potential for misidentification when a witness identifies a stranger based on a single brief observation, and this risk is increased when the observation was made at a time of stress or excitement.”). Moreover, there was no evidence bolstering the eyewitness testimony, such as, for example, that either witness knew Petitioner before the alleged incident. Cf. Cobble v. Smith, 154 F. App'x 447, 452 (6th Cir. 2005) (finding no prejudice under Strickland where the”witnesses . . . knew the petitioner beforehand and . . . positively identified the petitioner from the beginning”). Nonetheless, the Court concludes that Petitioner's ineffective assistance claim is procedurally defaulted.

         When a state-law default prevents further state consideration of a federal issue, the federal courts ordinarily are precluded from considering that issue on habeas corpus review. See Ylst v. Nunnemaker, 501 U.S. 797, 801, 111 S.Ct. 2590, 2593 (1991); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558 (1982). To determine whether a petitioner procedurally defaulted a federal claim in state court, the Court must consider whether: (1) the petitioner failed to comply with an applicable state procedural rule; (2) the state court enforced the rule so as to bar the claim; and (3) the state procedural default is an “independent and adequate” state ground properly foreclosing federal habeas review of the federal constitutional claim. See Hicks v. Straub,377 F.3d 538, 551 (6th Cir. 2004); accord Lancaster v. Adams, 324 F.3d 423, 436-37 (6th Cir. 2003); Greer v. Mitchell, 264 F.3d 663, 672 (6th Cir. 2001); Buell v. Mitchell, 274 F.3d 337, 348 (6th Cir. 2001). In ...


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