United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
T. NEFF, UNITED STATES DISTRICT JUDGE
isahabeas corpus petition filed pursuant to 28 U.S.C. §
2254. The matter was referred to the Magistrate Judge, who
issued a Report and Recommendation (R&R) recommending
that this Court deny the petition (ECF No. 20). The matter is
presently before the Court on Petitioner's objections to
the Report and Recommendation (ECF No. 24). In accordance
with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(3),
the Court has performed de novo consideration of those
portions of the Report and Recommendation to which objections
have been made. The Court denies the objections and issues
this Opinion and Order. The Court will also issue a Judgment
in this § 2254 proceeding. See Gillis v. United
States, 729 F.3d 641, 643 (6th Cir. 2013) (requiring a
separate judgment in habeas proceedings).
sets forth eight, numbered objections. In the first,
Petitioner asserts the Magistrate Judge erred in finding
"the erroneous Dury] in[st]ruction is procedurally
defaulted because Petitioner's trial counsel failed to
object to it, and that counsel's failure did not rise to
the level of a sixth amendment violation" (Pet'r
Obj., ECF No. 24 at PageID. 1165; R&R, ECF No. 20 at
PageID.1135-1138). Petitioner misreads the Report and
Recommendation. The jury instruction issue was determined on
its merits. The Magistrate Judge properly applied case law
and determined that Petitioner failed to show the given
instruction was incorrect under state law (id. at
1137). Petitioner's assertion that counsel's failure
to object to the jury instruction contributed to
counsel's overall ineffectiveness is moot, since the
issue lacks merit. This objection is denied.
second objection is to the Magistrate Judge's finding
that Petitioner failed to show admission of the testimony of
witnesses Thomas L. Coe and Trooper Joseph Young was contrary
to Supreme Court precedent (Pet'r Obj., ECF No. 24 at
PagelD. 1166; R&R, ECF No. 20 at PageID.1141-1142).
Petitioner acknowledges Michigan's Rules of Evidence
apply in his case, but asserts Daubert v. Merrell Dow
Pharmaceuticals, Inc.should control based on the comment to
Michigan Rule of Evidence 702, which states it is identical
to Federal Rule of Evidence 702 (ECF No. 24 at PageID.1166).
As noted by the Magistrate Judge, "[t]he court may only
grant relief if Petitioner is able to show that the state
court's evidentiary ruling was in conflict with a
decision reached by the Supreme Court on a question of law or
if the state court decided the evidentiary issue differently
than the Supreme Court did on a set of materially
indistinguishable facts" (ECF No. 20 at PagelD.
1139-1140, citing Sanders v. Freeman, 221 F.3d 846,
860 (6th Cir. 2000)). The Magistrate Judge correctly
concluded that Petitioner failed to show either basis upon
which relief may be granted. This objection is denied.
third objection is to the Magistrate Judge's finding that
he failed to show the interpreter was inadequate (Pet'r
Obj., ECF No. 24 at PageID.1167; R&R, ECF No. 20 at
PageID.1145). Despite taking a different path for this
objection than he did in his petition (a general assertion of
the interpreter's failure to explain the proceedings, as
opposed to failure of the Court to qualify the interpreter as
an expert), the conclusion is not altered. As the Magistrate
Judge observed, Petitioner has no recognized constitutional
right to a court-appointed interpreter. See Nguyen v.
Booker, 496 F.App'x 502, 506 (6th Cir. 2012).
Therefore, this is not an issue upon which habeas relief can
be granted. The Magistrate Judge's conclusion is proper.
This objection is denied.
fourth objection is to the Magistrate Judge's finding
that Petitioner failed to show the prosecutor improperly used
a peremptory strike to remove one of two Latinos from the
jury (Pet'r Obj., ECF No. 24 at PageID.1167; R&R, ECF
No. 20 at PageID.1149). Petitioner's objection merely
reiterates the claim in his petition. Petitioner failed to
show that the prosecutor's proffered non-discriminatory
reason for striking the juror was pretextual. The Magistrate
Judge properly determined that Petitioner is not entitled to
habeas relief based on the evidence before the Court. This
objection is denied.
fifth objection is to the Magistrate Judge's
determination that Petitioner failed to show ineffective
assistance of trial counsel (Pet'r Obj., ECF No. 24 at
PagelD. 1168; R&R, ECF No. 20 atPageID.1150-1153).
Petitioner makes the claim of ineffective assistance of trial
counsel based on his assertion that trial counsel failed to
voir dire an expert witness, failed to challenge two jurors,
and failed to provide "adversarial testing" of the
prosecutor's case (ECF No. 24 at PageID.1168). Petitioner
does not offer any specific assertions of factual or legal
error in his objection,  but merely states generally that
counsel did not meet the standards of Strickland v.
Washington, 466 U.S. 668 (1984). The Report and
Recommendation demonstrates the Magistrate Judge's
careful review of the facts of the case under the proper
legal standards (ECF No. 20 at PageID.1150-1154). The
Magistrate Judge's conclusion is sound. This objection is
sixth objection is to the Magistrate Judge's statement
that Petitioner's claim that his counsel did not provide
adversarial testing for the prosecutor's case is
"patently frivolous" (Pet'r Obj., ECF No. 24 at
PageID.1168; R&R, ECF No. 20 at PageID.1154). Petitioner
objects to the wording of the Report and Recommendation,
however, the merits of the underlying finding have already
been addressed here, and are not altered by Petitioner's
objection. This objection is denied.
seventh objection is to the Magistrate Judge's finding
that Petitioner failed to show ineffective assistance of
appellate counsel (Pet'r Obj., ECF No. 24 at
PageID.1168-1169; R&R, ECF No. 20 at PagelD. 1156).
Again, Petitioner makes a general reassertion of his petition
argument without asserting any specific legal or factual
error made by the Magistrate Judge. Petitioner's
conclusory statements do not change the analysis or
conclusion properly reached by the Magistrate Judge. This
objection is denied.
final objection is to the Magistrate Judge's
recommendation that a certificate of appealability should be
denied (Pet'r Obj., ECF No. 24 at PageID.1169; R&R,
ECF No. 20 at PageID.1157). Having determined
Petitioner's objections lack merit, the Court must
further determine pursuant to 28 U.S.C. § 2253(c)
whether to grant a certificate of appealability as to the
issues raised. See Rules Governing § 2254
Cases, Rule 11 (requiring the district court to "issue
or deny a certificate of appealability when it enters a final
order"). The Court must review the issues individually.
Slack v. McDaniel, 529 U.S. 473 (2000); Murphy
v. Ohio, 263 F.3d 466, 466-67 (6th Cir. 2001).
a district court has rejected the constitutional claims on
the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong." Slack, 529 U.S. at 484. Upon review,
this Court finds that reasonable jurists would not find the
Court's assessment of Petitioner's habeas claims
debatable or wrong. A certificate of appealability will
therefore be denied. Petitioner's objection is therefore
HEREBY ORDERED that the Objections (ECF No. 24) are DENIED
and the Report and Recommendation of the Magistrate Judge
(ECF No. 20) is APPROVED and ADOPTED as the Opinion of the
FURTHER ORDERED that the petition for habeas corpus relief
(ECF No. 1) is DENIED for the reasons stated ...