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Harris v. Burt

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

July 27, 2017

Marquise Lesjuan Harris, Petitioner,
v.
Sherry Burt, Respondent.

          OPINION AND ORDER

          Paul L. Maloney United States District Judge

         This matter is before the Court on Petitioner Marquise Harris' objections to the Report and Recommendation (R&R) issued by Magistrate Judge Phillip J. Green. (ECF No. 24.) On August 12, 2014, 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 15, 2014. (ECF No. 6.) The State of Michigan, through Burt, filed its response on June 16, 2015. (ECF No. 11.) The Court referred this matter to the Magistrate Judge for an R&R on the merits of the petition. The Magistrate Judge issued an R&R on May 4, 2017, recommending that the Court deny the petition. (ECF No. 23.) Petitioner filed the instant objections on May 22, 2017. (ECF No. 24.)

         I. Finding of Facts

         Petitioner takes no issue with the facts that the Magistrate Judge lays out. Since Petitioner only lodges objections against the legal findings of the Magistrate Judge, the Court ADOPTS the finding of facts contained in the Magistrate Judge's report. (ECF No. 23.)

         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 and Legal Objections

         Petitioner asserts that he is entitled to relief on several grounds: (1) insufficient evidence to support his conviction, (2) violation of his rights under the Confrontation Clause, (3) violation of due process by prosecutorial misconduct in using “bad acts” evidence, (4) ineffective assistance of defense counsel, and (5) ineffective assistance of appellate counsel. (ECF No. 6.) After examining each issue on the merits, the Magistrate Judge found all of Petitioner's arguments lacking and recommended that the Court deny his petition. (ECF No. 23.) Petitioner now lodges objections against the Magistrate Judge's recommendation as to first and second claims. (ECF No. 24.)

         As an initial matter, since Petitioner does not raise any objections to the Magistrate Judge's recommendation as to claims three, four, and five, the Court ADOPTS the Magistrate Judge's recommendation as to those claims.

         A. Insufficient Evidence to Support a Conviction

         First, Petitioner asserts that there was insufficient evidence presented at trial to support his conviction. (ECF No. 6 at PageID.109.) In Jackson v. Virginia, the Supreme Court established that in order for a habeas petitioner to succeed on a claim of insufficient evidence, they must show that “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could [not] have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. 307, 319 (1979) (citing Johnson v. Louisiana, 406 U.S. 356, 360 (1972)) (emphasis in original). Further, as the Michigan Court of Appeals has previously ruled on this claim, the question before the Court is not whether Petitioner is entitled to relief under the Jackson standard, but rather if the state court's decision resulted in an unreasonable application of Jackson. See Eady v. Morgan, 515 F.3d 587, 594-95 (6th Cir. 2008).

         After reviewing the record, the Magistrate Judge found that the Michigan Court of Appeals had reasonably applied the Jackson standard when it determined that there was sufficient evidence to support Petitioner's conviction. (ECF No. 23 at PageID.681.)

         Petitioner objects to this finding, conceding that the Magistrate Judge applied the correct standard but arguing that the Michigan Court of Appeals unreasonably applied the Jackson standard because the evidence that supported his conviction was not “properly before the jury.” (ECF No 24 at PageID.694-96.) Petitioner asserts that the prosecution read the “perjured testimony” of a co-defendant-who, allegedly, later changed his story before trial and was not allowed to testify-to the jury. (Id.) This argument, however, does not serve to challenge the finding that the evidence was sufficient to support a conviction; rather, it presents a whole new claim-that the trial court erroneously allowed the alleged false testimony to be presented to the jury in the first place. As such, this argument is not properly before the Court, as a Petitioner may not raise a new claim for the first time in an objection to a magistrate judge's R&R. See, e.g., Heston v. Comm'r of Soc. 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). Accordingly, Petitioner's first objection must be OVERRULED.

         B. Violation of Rights Under the ...


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