United States District Court, W.D. Michigan, Southern Division
ORDER AFFIRMING DECISION OF MAGISTRATE JUDGE and
APPROVING AND ADOPTING REPORT AND RECOMMENDATION
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
of Magistrate Judge's Decision
appeals the Magistrate Judge's Order denying his motion
for discovery. ECF Nos. 26, 30, 31.)
considering an appeal of a magistrate judge's ruling on a
nondispositive pretrial motion, the Court applies a
“clearly erroneous or contrary to law” standard
of review. United States v. Curtis, 237 F.3d 598,
603 (6th Cir. 2001) (citing United States v.
Raddatz, 447 U.S. 667, 673 (1980)); accord Brown v.
Wesley's Quaker Maid, Inc ., 771 F.2d 952, 954 (6th
Cir. 1985) (citing 28 U.S.C. § 636(b)(1)(a)); see
also Fed. R. Civ. P. 72(a) (District judge must consider
timely objections to nondispositive pretrial orders of
magistrate judge and modify or set aside any part of order
that is clearly erroneous or is contrary to law.) A finding
is “clearly erroneous” when “‘the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'” Anderson v. City of Bessemer City,
North Carolina, 470 U.S. 564, 573 (1985) (quoting
United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)).
Court finds no error in the Magistrate Judge's decision.
To the contrary, the Court finds the Magistrate Judge's
Order entirely proper. The Orders are factually sound and
legally correct. Plaintiff's appeal lacks merit.
Petitioner's appeal (ECF No. 31) is
OVERRULED. The Magistrate Judge's Order
(ECF No. 30) is AFFIRMED.
to Report and Recommendation
Court has reviewed Magistrate Judge Kent's Report and
Recommendation in this matter (ECF No. 32) and
Plaintiff's Objections to the Report and Recommendation
(ECF No. 33). Under the Federal Rules of Civil Procedure,
where, as here, a party has objected to portions of a Report
and Recommendation, “[t]he district judge . . . has a
duty to reject the magistrate judge's recommendation
unless, on de novo reconsideration, he or she finds it
justified.” 12 Wright, Miller, & Marcus, Federal
Practice and Procedure § 3070.2, at 381 (2d ed. 1997).
Specifically, the Rules provide that:
[t]he district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed
de novo the claims and evidence presented to the Magistrate
Judge; the Report and Recommendation itself; and
Plaintiff's objections. After its review, the Court finds
that Magistrate Judge Kent's Report and Recommendation is
factually sound and legally correct.
Magistrate Judge recommends that Petitioner's habeas
corpus petition be denied. Petitioner does not object to the
Report and Recommendation's analysis rejecting the
sufficiency of the evidence claim, and the Court is satisfied
on independent review that the analysis is correct, in any
does object to the Report and Recommendation's conclusion
regarding the jury's allegedly improper learning that
Defendant was a convicted sex offender. The Court overrules
Petitioner's objections, because whatever the jury
learned about a prior sex offender conviction was from the
jury's careful and attentive evaluation of the exhibits
admitted into evidence during the trial. Apparently neither
the prosecutor nor defense counsel realized one of the
exhibits was a residency document reporting a verified
registry address for Petitioner. (Sentencing Hr'g Tr.,
ECF No. 25-11, PageID.1941-1944.) It is not unconstitutional
for a jury to give more attentive care to exhibits than did
the lawyers. Nor is there any reason to believe the
jury's careful attention to this particular exhibit had
any prejudicial impact on its overall consideration of the
evidence of guilt, which included Petitioner's
incriminating admissions to three separate people.
in Petitioner's Objections changes the fundamental
analysis. The Court finds that denial of the habeas corpus
petition is appropriate, for the very reasons the detailed in
the Report and Recommendation.
Petitioner may appeal the Court's dismissal of his
petition, a certificate of appealability must issue. 28
U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1). The
Federal Rules of Appellate Procedure extend to district
judges the authority to issue certificates of appealability.
Fed. R. App. P. 22(b); see also Castro v. United
States, 310 F.3d 900, 901-02 (6th Cir. 2002). Thus the
Court must either issue a certificate of appealability
indicating which issues satisfy the required showing or
provide reasons why such a certificate should not issue. 28
U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b)(1); In re
Certificates of Appealability, 106 F.3d 1306, 1307 (6th
certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To
make the required “substantial showing, ” the
petitioner must demonstrate that “reasonable jurists
would find the district court's assessment of the
constitutional claims debatable or wrong.”
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)
(quoting Slack v. McDaniel, 529 U.S. 473, 484