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McGowan v. MacLaren

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

July 26, 2017

Clint Allan McGowan, Petitioner,
v.
Duncan MacLaren, Respondent.

          OPINION AND ORDER

          Paul L. Maloney United States District Judge.

         This matter is before the Court on Petitioner Clint McGowan's objections to the Report and Recommendation (R&R) issued by Magistrate Judge Phillip J. Green. (ECF No. 18.) On August 19, 2013, Petitioner filed a motion under 28 U.S.C. § 2254 seeking relief from a final state court decision (ECF No. 1); with leave of the Court, he amended his petition on October 17, 2013. (ECF No. 6.) The State of Michigan, through MacLaren, filed its response on April 25, 2014. (ECF No. 10.) Initially, the Magistrate Judge recommended this Court deny McGowan's petition as time barred. (ECF No. 14.) However, this Court rejected the first R&R “[b]ecause the State deliberately waived any statute of limitations defense.” (ECF No. 16 at PageID.5153.) Thus, this Court once again referred this matter to the Magistrate Judge for an R&R on the merits of the petition. (Id.) The Magistrate Judge issued an R&R on March 31, 2017, recommending that the petition be denied. (ECF No. 17.) Petitioner filed the instant objections on April 14, 2017. (ECF No. 18.)

         I. Statement of Facts & Factual Objections

         As an initial matter, the Court adopts those facts contained in the Magistrate Judge's report to which Petitioner has no objection.

         Petitioner does object to the following facts:

(1) A group of six people were at Mr. Marrott's house when he was beaten.
(2) The other three were Petitioner, his brother Heath and his friend Edward Griffes. (Trial Tr. V, ECF No. 11-8, PageID.1827-1828; Trial Tr. VII ECF No. 11-10, PageID.2468; Trial Tr. IX ECF No. 11-12, PageID2817.)
(3) The four males went inside. (Trial Tr. V, ECF No. 11-8, PageID.1831; Trial Tr. VII, ECF No. 11-10, PageID.2474; Trial Tr. IX, ECF No. 11-12, PageID.2821.)

(ECF No. 18 at PageID.5209-10)

         Petitioner asserts that the facts in question are not supported by the testimony of the witnesses contained in the record. Petitioner argues that the testimony of Michael Hansen, (ECF No. 11-8 at PageID.1827-43), Melissa Mudget, (ECF No. 11-10 at PageID.2468-86), and Tara Waldorf, (ECF No. 11-12 at PageID.2817-21), does not identify him as being present, any of his actions on the night of the robbery, or that he ever even entered the Marrott home. (ECF No. 18 at PageID.5210.) The specific portions of the testimony indicated by the Petitioner as contradicting the Magistrate Judge's findings of fact, however, do not support his assertion.

         While Mr. Hansen's testimony is less than clear, it does establish several things: (1) himself, Heath McGowan, Mr. Griffes, and Petitioner discussed the robbery of the Marrott home together prior to going to the home (ECF No. 11-8 at PageID.1824-25); the four men along with two girls went to the Marrott home to steal OxyContin pills (Id. at PageID.1826- 27); at the house, the four men got out of the car and entered the home (Id. at PageID.1831); while in the home, the four men ransacked the place looking for the OxyContin (Id. at PageID.1833-35); and (5) while in the home, an altercation occurred between Heath McGowan and Mr. Marrott. (Id. at PageID.1835).

         Ms. Mudget's testimony indicates that the same four men, Heath McGowan, Mr. Hansen, Mr. Griffes, and Petitioner, along with herself and Ms. Waldorf, all drove to the Marrott home together to get pills. (See ECF No. 11-10 at PageID.2468-71.) Ms. Mudget further testifies that once they were at the home the four men got out of the car and entered the house. (Id. at PageID.2474-75.) Likewise, Ms. Waldorf's testimony also indicates that the same six individuals traveled to the Marrott home and that the four men got out of the car and entered the house. (ECF No. 11-12 at PageID.2816-21.)

         The crux of Petitioner's argument against the Magistrate Judge's findings of fact is that none of the testimony described above specifically indicates that he went into the house or that any of his actions occurred in the house. (ECF No. 18.) Petitioner, however, relies on isolated segments of testimony to support his assertions without considering those segments in the larger context of the testimony as a whole. The testimony does not need to be a second-by-second account of Petitioner's actions in order to establish an outline of the events that occurred that night. The testimony of the three witnesses described above was consistent and adequately described the events of that night: six individuals-Heath McGowan, Eddie Griffes, Mike Hansen, Melissa Mudget, Tara Waldorf, and Petitioner-went to a house, later identified as the Marrott home, to steal pills and once at the house the four men got out of the car and went inside.

         Here, Petitioner is asking the Court to use a hyper-technical reading of the record when coming to its conclusions because no witness specifically testified he “entered” the house. The context of the testimony as a whole, however, makes it clear that Petitioner was one of the six individuals that went to the Marrott home and that when the group arrived at the home the four men in the car, including Petitioner, got out of the car and entered the house. Accordingly, Petitioner's objections to the Magistrate Judge's findings of fact are OVERRULED, and the Court ADOPTS the Magistrate Judge's findings of fact in his report in full.

         II. Legal Framework

         With 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) issued by a magistrate judge, 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. 72(b).

         III. Analysis & Legal Objections

         Petitioner asserts that he is entitled to relief on several grounds: (1) prosecutorial misconduct, (2) violation of due process by denial to appoint an expert witness, (3) violation of due process by exclusion of an alibi witnesses, (4) violation of due process by denial of a motion for separate trials/juries, (5) ineffective assistance of defense counsel, and (6) ineffective assistance of appellate counsel. (ECF No. 6.) After examining each issue on the merits, the Magistrate Judge found each of Petitioner's arguments lacked merit and recommended that the Court deny his petition. (ECF No. 17.) Petitioner now lodges several objections to the Magistrate Judge's legal recommendations. (ECF No. 18.)

         A. Prosecutorial Misconduct

         Petitioner first alleges the prosecutor in his case presented improper arguments in his closing statement and rebuttal. (ECF No. 6 at PageID.133.) Specifically, Petitioner alleges three instances of improper argument, which he views as “prosecutorial misconduct”: (1) introduction of excluded prior bad acts evidence, (2) arguing facts not in evidence, and (3) misleading the jury to believe the burden of proof was on Petitioner at trial. (Id.)

         In a habeas corpus action, a petitioner must do more than just show erroneous prosecutorial conduct in order to be entitled to relief. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). There is no standalone right to be free from any “prosecutorial misconduct” in the United States Constitution. Rather, the right sounds in due process. “The relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)) (internal quotations omitted). “[T]he remarks must be examined within the context of the trial to determine whether the prosecutor's behavior amounted to prejudicial error.” United States v. Young, 470 U.S. 1, 12 (1985).

         In Macias v. Makowski, the Sixth Circuit outlined a two-part test to determine if alleged prosecutorial misconduct rises to the level of violating a defendant's due process rights. 291 F.3d 447 (6th Cir. 2002). The Court must first consider whether the prosecutor's conduct and remarks were improper, and second apply a four-factor test to determine “whether the impropriety was flagrant and thus violated the defendant's due process rights.” Id. at 452 (quoting United States v. Carter, 236 F.3d 777 (6th Cir. 2001)) (internal quotations omitted). The four factors are “(1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and (4) whether the evidence against the defendant was strong.” Carter, 236 F.3d at 783; accord United States v. Carroll, 26 F.3d 1380, 1385 (6th Cir. 1994).

         Petitioner here has failed to show that the contested remarks of the prosecutor in his case rise to the level of violating his due process rights.

         1. Introduction of Prior Bad Acts Evidence

         Petitioner first alleges his due process rights were violated when the prosecutor brought up his methamphetamine use in her rebuttal statements. (ECF No. 6 at PageID.133.) Specifically, Petitioner takes issue with the statement: “Heath, Clint, and Eddie are in that same category. He can't separate those three out from all the other witnesses because they're all meth addicts. They're all using.” (ECF No. 1-1 at PageID.41.) After reviewing the record, the Magistrate Judge found that while this statement may have been slightly improper, the inclusion of the statement did not rise to the level of violating Petitioner's due process rights. (ECF No. 17 at PageID.5167-68.) Petitioner takes issue with the Magistrates Judge's conclusion that the statements did not amount to a violation of due process, and argues that the prosecutor used the statement to imply that “if [Petitioner] ever used methamphetamine, he had to be part of the killing.” (ECF No. 18 at PageID.5212.) Petitioner's argument, however, fails to place the prosecutor's statement into the context of the rebuttal as a whole.

         The specific section of the rebuttal argument Petitioner is challenging reads as follows:

During [Defendant Griffes' counsel's] closing he said all the witnesses are meth addicts and that's doubt. Well, if that's true, then Heath, Clint, and Eddie are in the same category. He can't separate those three out from all the other witnesses because they're all meth addicts. They're all using. So that just doesn't make any sense because he wants you to believe that Heath's memory was perfectly fine even though he was a meth addict.

         (ECF No. 11-15 at PageID.3829-30.) The statement was not being used, as Petitioner alleges, to draw a connection between his drug use and the murder charge, but rather it was being used to challenge assertions made by Defendant Griffes' counsel that the testimony of Mr. Hansen, Ms. Mudget, and Ms. Waldorf could not be trusted because they were meth addicts and their memories were impaired. (Id. at PageID.3778-80.) While the prosecutor certainly may have exaggerated the point, since Defendant Griffes' counsel never said that all of the witnesses were meth addicts, and ...


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