United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING
§ 2254 PETITION
L. Maloney United States District Judge
Brown, a prisoner under the control of the Michigan
Department of Corrections, filed a petitioner for habeas
relief under 28 U.S.C. § 2254. The magistrate judge has
reviewed the petition and the record and issued a report
recommending the petition be denied. (ECF No. 11.) Brown
filed objections. (ECF No. 12.)
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).
magistrate judge identified four grounds for relief advanced
in Brown's petition: (1) insufficient evidence to sustain
the convictions for second degree murder and for assault with
the intent to commit murder; (2) violation of due process for
failure to provide trial counsel with the criminal histories
of prosecution witnesses; (3) reversible error when the trial
court overruled a defense objection to the flight
instruction; and (4) reversible error when scoring offense
variables. Each of the claims were raised on appeal and
rejected by the Michigan Court of Appeals. The magistrate
judge concluded the first three claims should be denied for
lack of merit. The magistrate judge concluded the fourth
claim should be denied because it is not cognizable on habeas
Court finds the magistrate judge's summary of the
relevant facts accurate and the application of the relevant
law appropriate. Brown has not identified any factual or
legal errors in the report that would warrant rejecting or
modifying the magistrate judge's recommendations. The
Court comment briefly on each of Brown's claims and the
Sufficiency of the Evidence. Brown does not object to the
factual findings and legal conclusion on this first claim. In
his objection, Brown asserts that the prosecutor failed to
present to the jury the fact that certain shell casings were
found later in the investigation. Brown's objection does
not establish any error. Defense counsel was successful in
securing testimony that those casings were found, but not
submitted to the lab for testing. (ECF No. 8-5 Tr. Trans. at
132 PageID.458.) In closing, defense counsel discussed the
fact that there were shell casing found from guns of three
different calibers. (ECF No. 8-6 Tr. Trans. at 165-66
PageID.520.) Accordingly, the evidence of which Brown
complains was presented to the jury.
Criminal Histories. Brown contends that the prosecutor was
required to produce the criminal histories of its witnesses,
citing Michigan Court Rule 6.201(A)(4). Brown is incorrect.
Rule 6.201(A)(4) requires the party intending to use a
criminal history to impeach a witness to provide the record
to all other parties. See People v. Walker, No.
191601, 1997 WL 33330939, at *2 (Mich. Ct. App. Dec. 30,
1997). Because Brown wanted to impeach the prosecution's
witness, the rule places the obligation on Brown, not the
prosecutor. Rule 6.201(A)(5), on the other hand, requires a
disclosure the criminal convictions, known to the prosecuting
attorney, of any witness the prosecutor may call. The
magistrate judge summarized the manner in which the Michigan
Court of Appeals resolved this issue; the state court found
no evidence that the prosecutor was aware of Toliver's
criminal history. Brown does not object to this conclusion.
In addition, the magistrate judge found that defense counsel
was able to thoroughly examine Toliver about his criminal
history, undermining any potential prejudice. (See ECF
No. 8-4 Tr. Trans. at 194-95 PageID.382.)
Instruction on Flight. Brown's objection on this issue is
rejected outright. In his objection (ECF No. 12 PageID.860),
Brown quotes the trial court's instruction to the jury
out of context. The Michigan Court of Appeals explained why
there was no error in the instruction. The magistrate judge
identified the difficult standard Brown must overcome to
succeed on a jury instruction claim, a conclusion of law to
which Brown does not object.
Scoring of Offense Variables. Brown does not offer any
objections on this issue.
these reasons, the Report and Recommendation (ECF No. 11) is
ADOPTED as the Opinion of this Court.
Brown's § 2254 petition for habeas relief is
addition, the Court DENIES a Certificate of
Appealablity. The Court has reviewed the issues independently
for the purpose of determining whether to issue a
Certificate. The Court concludes reasonable jurists would not
disagree with its conclusions.
IS SO ORDERED.