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Pugh v. McKee

United States District Court, W.D. Michigan, Southern Division

October 17, 2017

Donovan Terrell Pugh, Petitioner,
v.
Kenneth McKee, Respondent.

          OPINION

          HONORABLE PAUL L. MALONEY UNITED STATES DISTRICT JUDGE.

         On April 1, 2015, Petitioner filed a motion under 28 U.S.C. § 2254 seeking relief from a state conviction. (ECF No. 1.) The State of Michigan, through McKee, filed its response on October 9, 2015. (ECF No. 5.) The Magistrate Judge issued an R&R on May 23, 2017, recommending that the petition be denied. (ECF No. 11.) Petitioner filed the instant objections on June 8, 2017. (ECF No. 12.) The matter is now before the Court for de novo review of Petitioner's objections to the R & R.

         I. Statement of Facts

         Petitioner takes no issue with the facts as summarized by the Magistrate Judge. Since he lodges objections only to legal conclusions, the Court adopts the summary of the facts contained in the R & R. (ECF No. 11.)

         II. Legal Framework

         With 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); 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) (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. 72(b).

         III. Analysis

         Petitioner asserted several grounds for relief in his § 2254 petition: (1) the government's failure to produce eyewitnesses at his trial violated his constitutional right to confrontation; (2) his trial was tainted by evidence of an impermissibly suggestive pretrial identification; and (3) ineffective assistance of counsel. (ECF No. 1.) After examining each issue, the Magistrate Judge concluded Petitioner's arguments lacked merit and recommended that the Court deny his petition. (ECF No. 11.) Petitioner now lodges objections to the magistrate judge's legal recommendations. (ECF No. 12.) Although not a model of clarity, the Court construes Petitioner's objections liberally to raise two challenges to the Magistrate Judge's conclusions: (1) that the Michigan Court of Appeals erred by concluding that an impermissibly suggestive identification at trial was harmless error; and (2) that he was deprived of his Sixth Amendment right to counsel because his trial attorney failed to object to or move to exclude evidence of the impermissible identification.

         A. Impermissible Identification

         Petitioner first renews his argument that introduction of the impermissibly suggestive identification at trial justifies relief from his conviction. He argues that if evidence of the identification had not been admitted, his conviction would not have been supported by sufficient evidence. (ECF No. 12 at PageID.1325-27.) However, Petitioner did not raise a sufficiency of the evidence claim in his § 2254 petition or at any time before the Magistrate Judge. (See ECF No. 1, 1-1.) Petitioners seeking habeas review cannot raise new grounds for relief when objecting to an R & R. See Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir.2000) (“Petitioner's failure to raise this claim before the magistrate constitutes waiver.”) Instead, the Court will construe Petitioner's objection as challenging the Michigan Court of Appeals conclusion that admission of the improper identification was harmless error.[1]

         Petitioner's arguments relating to the impermissibly suggestive identification were thoroughly addressed by the Michigan Court of Appeals, as the magistrate judge noted. (ECF No. 11 at PageID.1313-14.) There, the court relied upon Supreme Court precedent to determine that the government's identification procedure was unduly suggestive and should not have been admitted. It then proceeded to consider whether the improper identification was harmless error:

Notwithstanding the above conclusion, we find that reversal is not warranted in this case. To warrant reversal under the plain error standard, a defendant must show that the plain error affected his substantial rights; that is, “that the error affected the outcome of the lower court proceedings.” Carines, 460 Mich. at 763-764. Defendant cannot do so in this case. First, it is apparent from the record that any prejudicial effect resulting from Williams' identification of defendant as the perpetrator was minimized by his defense counsel's rigorous cross-examination of Williams regarding his initial description of the assailants and the subsequent identification procedure that took place at the police station. Thus, the jury was well aware of the problems associated with Williams' identification of defendant. Moreover, while Williams' identification of defendant was the only direct evidence linking him to the armed robbery, we find the other, circumstantial evidence in this case was strong and sufficient to support defendant's convictions. Circumstantial evidence, along with the reasonable inferences drawn therefrom, can be sufficient to support a conviction. People v Wilkens, 267Mich App 728, 738; 705 N.W.2d 728 (2005).
In this case, the evidence established that defendant was in the Ford Escape after the armed robbery occurred. Moreover, when defendant was later found hiding under a porch, he was in possession of Williams' stolen iPhone. See People v Hayden,132 Mich.App. 273, 283 n4; 348 N.W.2d 672 (1984) (“It is well established that the jury may infer that the possessor of recently stolen property was the thief”). Finally, black mask with eye holes cut out, which Williams testified was similar to the one used during the robbery, was found in the roadway near where the Ford Escape was stopped by police. Defendant could not be excluded as a donor of DNA found on that mask. It was reasonable for the jury to infer from all of this evidence that defendant was involved in the armed robbery. ...

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