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Kohn v. Smith

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

March 19, 2018

FLOYD E. KOHN, Petitioner,
v.
WILLIE SMITH, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE

         This is a habeas corpus action brought by Floyd Kohn, a state prisoner, under 28 U.S.C. § 2254. Respondent filed an opposition to Kohn's petition (ECF No. 10), and Kohn responded. (ECF No. 12.) Magistrate Judge Phillip Green issued a thorough 33-page Report and Recommendation (R & R) recommending that the Court deny Kohn's habeas petition. (ECF No. 15.) Kohn filed a 17-page[1] Objection to the R & R. (ECF No. 16.)

         Under Federal Rule of Civil Procedure 72(b), a petitioner “may serve and file specific written objections” to the R & R, and the Court is to consider any proper objection. Local Rule 72.3(b) likewise requires that written objections “shall specifically identify the portions” of the R & R to which a petitioner objects. Under 28 U.S.C. § 636(b), upon receiving objections to a report and recommendation, the district judge “shall make a de novo determination 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, Kohn's Objections, and the pertinent portions of the record, the Court concludes that the R & R should be adopted.

         The R & R provided a thorough overview of the facts of Kohn's criminal case, Kohn's appellate history, the applicable standards, and reasons to deny each ground in Kohn's habeas petition. The R & R recommended denying the petition because:

• Many of Kohn's ineffective assistance of counsel claims were procedurally defaulted;
• Kohn failed to allege a valid conflict of interest claim;
• Kohn failed to show how a polygraph exam-which is inadmissible at trial in Michigan- would have affected the trial's outcome;
• Kohn's assertions that his absence from statewide and national pseudoephedrine databases are without merit;
• Kohn failed to identify any grounds to warrant a mistrial or dismissal;
• The jury's not-guilty verdict for Kohn's charge of unauthorized use of a vehicle nullified any need for further questioning on the subject at trial;
• Kohn's sufficiency of the evidence arguments were without merit and not in line with clearly established federal law;
• Kohn's withholding of favorable evidence claim was procedurally defaulted;
• Kohn's claim for a new trial based on the pseudoephedrine database is not cognizable, and any error would be harmless.

         Kohn's Objection is largely comprised of a recounting of the facts and arguments he raised in his initial petition. Kohn repeatedly objects that the R & R is “incomplete/unfinished/odd/illogical.” (ECF No. 16 at PageID.1086.) On the contrary, the Court finds that the R & R demonstrated a thorough understanding of the case-the factual and procedural history and relevant law. “An ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented ...


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