United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING
MOTION FOR RECONSIDERATION
J. QUIST UNITED STATES DISTRICT JUDGE
August 9, 2017, Magistrate Judge Kent issued a Report and
Recommendation (R & R) recommending that the Court deny
Petitioner's petition for writ of habeas corpus. (ECF No.
49.) The Court has reviewed the R & R recommending that
the petition be denied. The R & R was duly served on
Petitioner on August 9, 2017. On August 21, 2017, Petitioner
filed a motion for an extension of time to file a response to
the R& R. The magistrate judge ordered that this motion
be denied on August, 24, 2017, however, this Court reversed
the magistrate judge on August 13, 2017, granting Petitioner
fourteen additional days to respond to the R & R. (ECF
No. 55). Petitioner submitted an objection on September 26,
2017, objecting to the magistrate judge's findings, again
arguing that he suffered from ineffective assistance of
counsel at trial and that the prosecutor committed
misconduct. (ECF No. 59.)
to 28 U.S.C. § 636(b), upon receiving objections to a
report and recommendation, the district judge “shall
make a de novo determinations of those portions of the report
or specified proposed findings or recommendations to which
objection is made.” After conducting a de novo review
of the R & R, Petitioner's Objections, and the
pertinent portions of the record, the Court concludes that
the R & R should be adopted. In his objection, Petitioner
makes meritless assertions that are adequately addressed, and
directly contradicted, by the R & R.
the Court concurs with the magistrate judge's
determination that there is no basis to argue ineffective
assistance of counsel due to the failure to request a
specific jury instruction regarding unanimity. The trial
judge provided a general instruction on jury unanimity, and
explained the individual determinations the jurors were
required to make on their own “individual considered
judgment.” There was no reason for Petitioner's
trial counsel to object to these instructions.
Petitioner's claims that his counsel “was not
competent enough to ask for the bare minimum” and that
“[t]he jury was left to potentially compromise as to
the counts and incidents alleged in this case” are
entirely baseless. (ECF No. 59 at PageID.579.)
the Court concurs with the magistrate judge's
determination that there is no basis to argue that
prosecutorial misconduct rendered Petitioner's trial
unfair. Petitioner is correct that “[c]redibility
determinations are left for the Jury [sic] to
decide.” (Id. at PageID.582.) When Petitioner
testified that the government witnesses were lying, he called
their credibility into question; this undeniably opened the
door for the prosecutor to both cross-examine Petitioner and
address his testimony on the matter of the witnesses'
credibility. That is the nature of a jury trial.
Petitioner's allegations that this made “a mockery
of the defense” and made him “a witness against
himself” are patently false and meritless.
(Id.) Accordingly, it was not ineffective assistance
of counsel to fail to object to the prosecutor's related
the Court will overrule Petitioner's Objection and adopt
the R & R as the opinion of the Court.
also filed a motion for reconsideration on September, 18,
2017. (ECF No. 65.) He seeks reconsideration of an order
docketed as No. 7 from Case No. 1:14-cv-447 dismissing a
petition Petitioner had intended to file as an amended
complaint in the instant case. He also seeks reconsideration
of the magistrate judge's January 18, 2017, order denying
his motion to amend his habeas petition. (ECF No. 46.)
seeking reconsideration of a court's ruling bears a heavy
burden. To prevail on a motion for reconsideration, the
movant must “not only demonstrate a palpable defect by
which the Court and the parties have been misled, but [must]
also show that a different disposition of the case must
result from a correction thereof.” See W.D.
Mich. LCivR 7.4(a). Petitioner fails to show a palpable
defect in the Court's prior order.
under 28 U.S.C. § 2253(c)(2), the Court must also
determine whether a certificate of appealability should be
granted. A certificate should issue if Petitioner has
demonstrated a “substantial showing of a denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The
Sixth Circuit has disapproved issuance of blanket denials of
a certificate of appealability. Murphy v. Ohio, 263
F.3d 466, 467 (6th Cir. 2001). Rather, the district court
must “engage in a reasoned assessment of each
claim” to determine whether a certificate is warranted.
Id. at 467. Each issue must be considered under the
standards set forth by the Supreme Court in Slack v.
McDaniel, 529 U.S. 473, 120 S.Ct. 1595 (2000);
Murphy, 263 F.3d at 467. Therefore, the Court has
considered Petitioner's claims, including his objections,
under the Slack standard.
Slack, 529 U.S. at 484, 120 S.Ct. at 1604, to
warrant a grant of the certificate, “[t]he petitioner
must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” For the reasons stated above, the
Court finds that reasonable jurists could not find that this
Court's denial of Petitioner's claims were debatable
or wrong. Thus, the Court will deny Petitioner a certificate
of appealability. Therefore, IT IS HEREBY
ORDERED that the Magistrate Judge's Report and
Recommendation issued August 9, 2017, (ECF No. 49) is
APPROVED AND ADOPTED as the Opinion of this
Court, and Petitioner's Objection (ECF No. 59) is
IS FURTHER ORDERED that Petitioner's habeas
corpus petition (ECF No. 1) is DENIED.
IS FURTHER ORDERED that Petitioner's motion for
reconsideration (ECF No. 56) is DENIED.
IS FURTHER ORDERED that a certificate of
appealability is ...