United States District Court, W.D. Michigan, Southern Division
L. Maloney, United States District Judge.
Rios, a Michigan prisoner, filed a petition under 28 U.S.C.
§ 2254 challenging his state court conviction. The
magistrate judge issued a report and recommendation (R &
R) concluding that the petition should be denied. (ECF No.
86.) Rios timely filed objections. (ECF No. 91.) Rios sets
forth four specific objections to the R & R: (1) The
magistrate judge erred as a matter of law when he concluded
that the state presented sufficient evidence to convict him
of arson under Michigan law; (2) the magistrate judge erred
by concluding that Rios' procedurally-defaulted claims
were not saved by the “fundamental miscarriage of
justice exception; (3) the magistrate judge erred by
concluding that Rios could not show prejudice on his
ineffective assistance of counsel claims; and (4) the
magistrate judge erred by not granting an evidentiary hearing
before ruling on his ineffective assistance of counsel
claims. For the reasons to follow, the Court will adopt the R
& R as the opinion of the Court and overrule Rios'
objections to the R & R.
takes no issue with the facts as summarized by the magistrate
judge. Since he lodges objections only to legal conclusions,
the Court adopts the magistrate judge's summary of the
facts contained in the R & R. (ECF No. 85.)
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);
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.
Court first takes up Petitioner's contention that his
conviction was not supported by sufficient evidence.
Petitioner previously raised this issue on direct appeal with
the Michigan Court of Appeals. The R & R concluded that
sufficient evidence supported the conviction and was not
contrary to clearly established federal law. Rios now claims
that his conviction violated the Supreme Court's holding
in United States v. Ross-an 1875 case-that held when
circumstantial evidence is relied upon to prove a fact, the
circumstances must be proven and may not be presumed. 92 U.S.
281 (1875). Petitioner theorizes that under this standard,
the prosecution failed to “overcome the presumption
that the fire was accidental.” (ECF No. 91 at
PageID.1479.) Based on this alleged failure, he believes his
conviction was contrary to, or an unreasonable application of
clearly established federal law. 28 U.S.C. § 2254(d)(1).
Ross sheds no new light on Rios' conviction and
the objection is without merit. As the Michigan Court of
Arson cases are usually proved with circumstantial evidence.
“‘Such evidence is often of a negative character;
that is, the criminal agency is shown by the absence of
circumstances, conditions, and surroundings indicating that
the fire resulted from an accidental cause.'”
Nowack, 462 Mich. at 402-403 (citation omitted); see
also People v Wolford, 189 Mich.App. 478, 480; 473
N.W.2d 767 (1991). Further, a “prosecutor need not
negate every reasonable theory consistent with innocence,
” Nowack, 462 Mich. at 400, and an arson
investigator is not required to rule out all “remotely
possible causes of a fire for which no evidence
exists.” People v Simon, 174 Mich. 649, 654;
436 N.W.2d 695 (1989).
The prosecution presented evidence that defendant was seen
alone in his cell shortly before the fire started. Officers
responding to the scene testified that the fire appeared to
be in two or three locations in the cell. One officer
testified that he did not believe the fire was an electrical
or grease fire, although he was not a fire investigator and
did not investigate further after the fire was put out.
Another officer testified that there were no open flames,
burners, heat sources, or anything that would cause an
accidental ignition in the cells of the unit in which
defendant's cell was located. He too admitted that he was
not a fire investigator and did not investigate for the
purpose of determining the cause of the fire. A state police
officer testified that he had no reason to believe
accelerants or flammable liquids were used. A nurse who
attended to defendant testified that he said he lit his
mattress on fire. Although a state police officer testified
that the mattress was not damaged, defendant was the only one
with an opportunity to deliberately set a fire because he was
alone in his cell.
This evidence is sufficient, when viewed in a light most
favorable to the prosecution, for a rational jury to conclude
beyond a reasonable doubt that the prosecution proved all
essential elements of the crime. Ericksen, 288
Mich.App. 192, 195-196. The evidence showed multiple points
of origin, no apparent accidental causes for the multiple
fires, and that defendant possessed both the means and
opportunity to start the fires. In meeting its burden of
proof, the prosecution need not negate every theory
consistent with innocence. Nowack, 462 Mich. at 400.
(ECF No. 41-22 at PageID.802.) Therefore, as that court
noted, the prosecution put forth the evidence necessary to
prove the circumstances underlying Petitioner's
conviction; that is the obligation under Ross. The
prosecution was not required to disprove Rios'
theory that the fire was accidental. The Court thus concludes
that the Michigan Court of Appeals decision was not contrary
to clearly established federal law, nor was it an objectively