United States District Court, W.D. Michigan, Southern Division
MEMORANDUM OPINION AND ORDER
J. QUIST 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 Ellen S. Carmody, who issued a Report and
Recommendation (“R&R”) on June 13, 2017,
recommending that this Court deny the petition. (ECF No. 13.)
The matter is before the Court on Petitioner's objection
to the R&R. (ECF No. 14.)
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
disagrees with the findings in the R&R, and argues that
the Magistrate Judge failed to consider the fact that
Petitioner is “still entitled to a qualitative analysis
of the evidence presented to determine if the requisite
standard for a guilty verdict had been met.” (ECF No.
Petitioner's objection, she argues that the Magistrate
Judge did not determine whether there was sufficient evidence
to prove each element of the crime beyond a reasonable doubt.
(ECF No. 14, PageID.1538.) Petitioner did not raise an
insufficiency-of-evidence claim in her § 2254 petition;
and an objection to the R&R is not the appropriate time
to raise a new claim for habeas relief. Because this ground
was not raised before the Magistrate Judge or in her §
2254 petition, she arguably has waived it. Robinson v.
Curtin, No. 1:11-cv-698, 2011 WL 6042606, at *1 (W.D.
Mich. Dec. 5, 2011) (citing 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.”)).
event, Petitioner has not exhausted this claim in state
court. Before a federal court may grant habeas relief to a
state prisoner, the prisoner must exhaust remedies available
in the state courts. 28 U.S.C. § 2254(b)(1);
O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). Exhaustion requires a petitioner to “fairly
present” federal claims so that state courts have a
“fair opportunity” to apply controlling legal
principles to the facts bearing upon a petitioner's
constitutional claim. See O'Sullivan, 526 U.S.
at 842; Picard v. Connor, 404 U.S. 270, 275-77
(1971) (cited by Duncan v. Henry, 513 U.S. 364, 365
(1995) and Anderson v. Harless, 459 U.S. 4, 6
(1982)). To fulfill the exhaustion requirement, a petitioner
must first fairly present her federal claims to all levels of
the state appellate system, including the state's highest
court. Duncan, 513 U.S. at 365-66; Silverburg v.
Evitts, 993 F.2d 124, 126 (6th Cir. 1993); Hafley v.
Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
“[S]tate prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process.” O'Sullivan, 526 U.S. at
845. Petitioner has not raised an insufficiency-of-evidence
argument to the Michigan Court of Appeals or the Michigan
Supreme Court. Stoll, 2014 WL 5409004, at *2; (ECF
No. 8-10, PageID.1462-1467, 1478-82).
petitioner has not exhausted available state remedies if she
has the right under state law to raise, by any available
procedure, the question presented. 28 U.S.C. § 2254(c).
Petitioner has at least one available procedure by which to
raise this argument: she may file a motion for relief from
judgment under Michigan Court Rule 6.502. Under Michigan law,
one such motion may be filed after August 1, 1995. M.C.R.
6.502(G)(1). Petitioner has not yet filed a motion for relief
from judgment in state court, so she has at least one
available state remedy. Thus, to the extent that Petitioner
properly raises a new claim in her objection, it is denied on
28 U.S.C. § 2253(c)(2), the Court must determine whether
a certificate of appealability should be granted. A
certificate should issue 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 district
court must “engage in a reasoned assessment of each
claim” to determine whether a certificate is warranted.
Id. at 467. Each issue must be considered under the
standards set forth by the Supreme Court in Slack v.
McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d
at 467. Consequently, this Court has examined
Petitioner's due process claim under the Slack
standard. Under Slack, 529 U.S. at 484, to warrant a
grant of the certificate, “[t]he petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.” Id. “A petitioner satisfies
this standard by demonstrating that . . . jurists could
conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). In applying this
standard, the Court may not conduct a full merits review, but
must limit its examination to a threshold inquiry into the
underlying merit of Petitioner's claim. Id. The
Court finds that reasonable jurists could not find that this
Court's dismissal of Petitioner's due process claim
was debatable or wrong.
extent that Petitioner properly raises an unexhausted new
claim in her objection, the Court may only issue a
certificate of appealability “when the prisoner shows,
at least (1) that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and (2) that jurists of reason would
find it debatable whether the district court was correct in
its procedural ruling.” Slack, 529 U.S. at
484. Both showings must be made to warrant the grant of a
certificate. Id. The Court finds that reasonable
jurists could not debate that this Court correctly dismissed
Petitioner's insufficiency-of-evidence claim on
exhaustion grounds. “Where a plain procedural bar is
present and the district court is correct to invoke it to
dispose of the case, a reasonable jurist could not conclude
either that the district court erred in dismissing the
petition or that the petitioner should be allowed to proceed
further.” Id. Therefore, the Court will deny
Petitioner a certificate of appealability.
IT IS ORDERED that Petitioner's objection to the R&R
(ECF No. 14) is OVERRULED.
FURTHER ORDERED that the R&R (ECF No. 13) is APPROVED and
ADOPTED as the opinion of the Court.
FURTHER ORDERED that Petitioner's § 2254 petition
(ECF No. 1) is DENIED.
FURTHER ORDERED that a certificate of appealability is