United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Maloney, United States District Judge
Richardson, a Michigan prisoner, filed a petition under 28
U.S.C. § 2254 challenging his state court conviction.
United States Magistrate Judge Ellen Carmody issued an
exhaustive, 211-page Report and Recommendation (R & R)
concluding that the petition should be denied but
recommending that a certificate of appealability be granted
as to Petitioner's claims of prosecutorial misconduct.
(ECF No. 27.) The matter is now before the Court on
Plaintiff's objections (ECF No. 29) and Plaintiff's
supplemental objections (ECF No. 34.)
takes no issue with the facts as summarized by the magistrate
judge. Because he lodges objections only to legal
conclusions, the Court adopts the magistrate judge's
summary of the facts contained in the R & R.
respect to a dispositive motion, a magistrate judge issues a
report and recommendation, rather than an order. After being
served with an 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).
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). “Objections” that merely voice
disagreement with the recommendations of the magistrate or
summarize what has already been presented are not entitled to
de novo review under Rule 72. See Brown v. City of Grand
Rapids, 2017 WL 4712064 (6th Cir. 2017)
objections have simply not given the Court anything to
consider. Petitioner argues forcefully that the Court must
construe his objections with all liberality, but there is
nothing to construe. His only substantive critique of the R
& R is found on Page 2 of his initial objections. (ECF
No. 29 at PageID.11658.) There, Petitioner indicates that he
agrees with the magistrate judge that “the totality of
the record exposes a great deal of prosecutorial
misconduct.” (ECF No. 29 at PageID.11658.) But
Petitioner has not made any other cognizable objections for
the Court ADOPTS Judge Carmody's
well-reasoned and all-encompassing R & R as the Opinion
of the Court.
the petition for a writ of habeas corpus is
district court must issue a certificate of appealability
either at the time the petition for writ of habeas corpus is
denied or upon the filing of a notice of appeal. Castro
v. United States, 310 F.3d 900, 903 (6th Cir. 2002) (per
curiam). A court may issue a certificate of appealability
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). See Miller-El v. Cockrell, 537
U.S. 322, 337 (2003). To satisfy this standard, the
petitioner must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve
encouragement to proceed further.'” Id.
(quoting Slack v. McDaniel, 529 U.S. 473, 483
(2000)). Courts should undertake an individualized
determination of each claim presented by the petitioner when
considering whether to issue a certificate of appealability.
Murphy v. Ohio, 551 F.3d 485, 492 (6th Cir. 2009).
the Court concurs with the Magistrate Judge's
recommendation that reasonable jurists could debate whether
the alleged prosecutorial misconduct Petitioner ...