United States District Court, W.D. Michigan, Northern Division
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
J. QUIST, UNITED STATES DISTRICT JUDGE
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
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.)
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.)
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.
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).
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.
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.
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 ...