United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
L. Maloney United States District Judge
matter is before the Court on Petitioner Howard
McDonald's objection to the Report and Recommendation
(R&R) issued by Magistrate Judge Phillip J. Green. (ECF
No. 29.) On June 1, 2015, Petitioner filed a habeas corpus
petition for relief from a state court decision under 28
U.S.C. § 2254. (ECF No. 1.) Petitioner subsequently
amended his petition on July 8, 2015 (ECF No. 7), and a
response was filed on January 19, 2016 (ECF No. 12). The
matter was referred to the Magistrate Judge, who recommended
the petition be denied on February 23, 2017. (ECF No. 24.)
Petitioner filed the instant objections. (ECF No. 29.)
respect to a dispositive motion, a magistrate judge issues a
report and recommendation, rather than an order. After being
served with a report and recommendation (R&R), a party
has fourteen days to file written objections to the proposed
findings and recommendations. 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). 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); 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”). Failure to file an objection
results in a waiver of the issue and the issue cannot be
appealed. United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005); see also Thomas v. Arn, 474
U.S. 140, 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); Fed.R.Civ.P.
novo review, habeas corpus petitions, such as this one, are
governed by the provisions of the Antiterrorism and Effective
Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214
(AEDPA). See Penry v. Johnson, 532 U.S. 782, 792
(2001). If a state court adjudicated the claim, deferential
AEDPA standards must be applied. 28 U.S.C. § 2254(d);
see Premo v. Moore, 562 U.S. 115, 121 (2011);
Waddington v. Sarausad, 555 U.S. 179, 190 (2009);
Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009)
((“[A]ny claim that was adjudicated on the merits in
State court proceedings' is subject to AEDPA
deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA
prevents federal habeas “retrials” and ensures
that state court convictions are given effect to the extent
possible under law. Bell v. Cone, 535 U.S. 685,
693-94 (2002). It prohibits “using federal habeas
corpus review as a vehicle to second-guess the reasonable
decisions of state courts.” Parker v.
Matthews, 132 S.Ct. 2148, 2149 (2012) (per curiam).
AEDPA standard is difficult to meet “because it was
meant to be.” Harrington v. Richter, 562 U.S.
86, 102 (2011). “Section 2254(d) reflects that habeas
corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error
corrections through appeal.” Id. at 102-03
(citation and internal quotation omitted); see Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015). Section 2254(d)
states that an application for a writ of habeas corpus on
behalf of a person who is incarcerated pursuant to a state
conviction cannot be granted with respect to any claim that
was adjudicated on the merits in state court unless the
adjudication “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision
that was based upon an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); see White v.
Wheeler, 136 S.Ct. 456, 460 (2015); Davis v. Ayala, 135 S.Ct.
at 2198; White v. Woodall, 134 S.Ct. 1697, 1702 (2014).
only definitive source of clearly established federal law for
purposes of § 2254(d)(1) is the holdings-not dicta-of
Supreme Court decisions. White v. Woodall, 134 S.Ct.
at 1702; see Woods v. Donald, 135 S.Ct. at 1377
(“Because none of our cases confront ‘the
specific question presented by this case, ' the state
court's decision could not be ‘contrary to' any
holding from this Court.”). “[W]here the precise
contours of a right remain unclear, state courts enjoy broad
discretion in their adjudication of a prisoner's
claims.” Id. (quotations and internal
filing is not very coherent; most of the submission contains
either a restatement of his prior factual assertions or an
attempt to expand the record after the Magistrate Judge
already considered each of his arguments. For example,
Petitioner repeatedly lays out his factual assertions with
the preface, “I would like to add. . . .” (ECF
No. 29 at PageID.909.) To the extent Petitioner adds to the
factual record that the Magistrate Judge already considered,
he has raised those facts too late. See e.g., Heston v.
Commissioner of Social Sec., 245 F.3d 528, 535 (6th Cir.
2001); Murr v. United States, 200 F.3d 895, 902 (6th
Cir.2000) (parties may not raise new arguments or issues at
the district court stage that were not presented to the
Magistrate Judge). To the extent Petitioner merely repeats
his factual assertions, he has not explained how,
specifically, the Magistrate Judge's report and
recommendation errs by omitting relevant facts or failing to
apply the law to his factual assertions. At no point in
Petitioner's factual exhortations does he “pinpoint
those portions of the magistrate's report that the
district court must specifically consider.”
Mira, 806 F.2d at 637.
Petitioner's objection liberally, the Court can discern
only two objections sufficient to warrant review.
Petitioner argues the Magistrate Judge erred by evaluating
his ineffective assistance of counsel claim because, in his
view, “if Dr. Haugen would have been asked to testify
to [certain] findings[, ] the jury may have not found me
guilty of 1st degree premediated murder . . . .” But,
as the Magistrate Judge noted, “it is not enough to
convince the federal habeas court that, in its independent
judgment, the state-court decisions applied
Strickland incorrectly.” (ECF No. 24 at
PageID.896.) “Rather, petitioner must show that the
state courts ‘applied Strickland to the facts
of his case in an objectively unreasonable
manner.'” (Id. (quoting Be
l v. Cone, 535 U.S. 685, 699 (2002)).)
Petitioner has not met his heavy burden under these
circumstances. Moreover, he has not shown prejudice arose
from the alleged ineffective assistance; even assuming Dr.
Haugen testified to Petitioner's liking, Petitioner has
not shown the jury would have passed on the first-degree
murder option because the other evidence was
“overwhelming.” (ECF No. 24 at PageID.894.) The
state court's judgment that “Petitioner failed to
establish prejudice” neither was contrary to, nor
represented an unreasonable application of,
Strickland. See Be l, 535
U.S. at 698-99.
Petitioner argues the Magistrate Judge misconstrued
the factual record with respect to him waiving his right to
testify. (ECF No. 29 at PageID.910-11.) Petitioner insists
that he never waived his right to testify. (Id. at
PageID.911.) At trial, Petitioner's attorney made the
strategic choice to rely on Petitioner's recorded
statement to the police and not to call defendant to testify.
(ECF No. 13-9 at PageID.371-72.) When a defendant's
counsel makes the strategic decision not to call the
defendant it is presumed that the defendant assented to not
being called. United States v. Webber, 208 F.3d 545,
551 (6th Cir. 2000) (citing United States v.
Joelson, 7 F.3d 174 (9th Cir. 1993)). If there is a
disagreement between a defendant and his counsel on whether
he should be called to testify, it is on the defendant to
bring the disagreement to the attention of the Court. See
id. “When a defendant does not alert the trial
court of a disagreement, waiver of the right to testify may
be inferred from the defendant's conduct.”
although Petitioner did eventually inform the Court that he
disagreed with his counsel and wished to represent himself
and testify, it was not until after the close of proofs that
he brought the disagreement to the Court's attention.
(ECF No. 13-9 at PageID.910- 11.) At that time, it was within
the Courts broad discretion to deny Petitioner's implicit
motion to reopen proofs and deem his right to testify waived.
See United States v. Bridgefourth, 538 F.2d 1251,
1253 (6th Cir. 1976) (citing United States v. Wade,
364 F.2d 931(6th Cir. 1966)). At a minimum, Petitioner has
not shown that the decision of the state court in deeming his
right to testify waived was ...