United States District Court, W.D. Michigan, Southern Division
L. MALONEY UNITED STATES DISTRICT JUDGE
22, 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 Hoffner, filed its response on
July 6, 2016. (ECF No. 10.) The Magistrate Judge issued an
R&R on March 8, 2018, recommending that the petition be
denied. (ECF No. 14.) The matter is now before the Court for
de novo review of Petitioner's timely objections to the R
& R. (ECF No. 15.)
“objects to the Magistrate's erroneous
determination of the facts.” (ECF No. 15.)
Specifically, Petitioner objects that the magistrate judge
“misquoted the information” and “left out
important facts.” He asserts that the Magistrate could
have included more testimony from Officer Runcie and the
victim, John Allegretti.
to facts in an R & R are reviewed under the
“clearly erroneous” standard. The Court does not
find that any of the facts presented in the R & R are
clearly erroneous. However, it will consider all of the
additional trial testimony that Petitioner has quoted
liberally within his objections.
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).
asserted seven grounds for relief in his § 2254
I. Appellate counsel failed to raise ineffective assistance
of counsel against trial counsel when he had knowledge of
[her] deficient performance.
II. Appellate counsel failed to add trial transcript
notations to Petitioner's Standard 4 brief filed in the
Michigan Court of Appeals.
III. Appellate counsel failed to assert that Petitioner was
entitled to a fair trial and a jury pool that represents the
cross-section. Afro-americans were excluded.
IV. Appellate counsel failed to assert that Petitioner's
trial counsel committed perjury in the trial court.
V. Appellate counsel failed to assert the trial court's
failure to instruct the jury on tracking dog evidence.
VI. Appellate counsel was deficient for failing to raise that
trial counsel was ineffective for failing to raise
prosecutorial misconduct for failing to disclose that the
prosecution's star witness had an outstanding warrant.
VII. The evidence was insufficient to prove that Petitioner
aided and abetted either of the two gun-carrying robbers to
commit the crime of felony- firearm.
examining each issue, the magistrate judge concluded
Petitioner's arguments lacked merit and recommended that
the Court deny his petition in a 36-page Report &
Recommendation. (ECF No. 11.) Petitioner now lodges 39 pages
of objections to the magistrate judge's conclusions. (ECF
Sufficiency of the evidence
magistrate judge concluded that Petitioner's claim for
habeas relief based on the sufficiency of the evidence was
meritless. The standard is “whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). When
brought in a § 2254 proceeding, the AEDPA standard also
applies, so “the law commands deference at two levels
in this case: First, deference should be given to the
trier-of-fact's verdict, as contemplated by
Jackson; second, deference should be given to the
Michigan Court of Appeals' consideration of the
trier-of-fact's verdict, as dictated by AEDPA.”
Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008).
on this standard, the magistrate judge concluded that
Petitioner's claim was meritless because Petitioner
ignored the evidence cited by the Michigan Court of Appeals
as supporting the determination that Petitioner aided and
abetted the possession of a firearm by the other participants
in the robbery. That court concluded:
When viewed in the light most favorable to the prosecution,
defendant's actions and words demonstrated an intent to
procure, counsel, aid, or abet the possession of a firearm
during the commission of the armed robbery. Defendant called
Allegretti and procured an invitation to watch football at
Allegretti's apartment, thereby ensuring that Allegretti
would open his apartment door when defendant later knocked.
Defendant arrived at Allegretti's door with two men, each
armed with a gun. The three men entered Allegretti's
apartment together after Allegretti opened the apartment
door. The man carrying a pistol pointed it at
Allegretti's face, forcing Allegretti to back into the
apartment. Defendant demanded Allegretti to hand over
“the guap, ” and when Allegretti questioned
defendant, the man with the shotgun hit Allegretti in the
face with the butt of the gun. Defendant then ordered the two
men to check Allegretti's pockets for money. Defendant
encouraged and assisted his accomplices' possession of
firearms by specifically relying on the firearm possession to
intimidate Allegretti, all of which was accomplished by
defendant ensuring entrance into Allegretti's apartment.
Accordingly, defendant's conviction for felony-firearm
based on an aiding and abetting theory is supported by
(ECF No. 11-16 at PageID.115-17.)
objections, Petitioner asserts that there was no evidence
that he knew either of the unknown gunmen, that they knew
him, or that the three of them had a plan. Petitioner also
asserts that there was no evidence that he ever possessed a
weapon, gave a weapon to the gunmen, or made any gesture to
Petitioner asserts that Allegretti gave a statement to the
responding officer (Officer Runcie) after the incident and
did not mention the Petitioner telling the gunmen to check
his pockets. Thus, Petitioner reasons that Allegretti's
testimony at trial may not have been accurate. However, the
existence of some contradictory evidence will not support a
sufficiency of the evidence claim. See, e.g.,
Barron v. Moore, 2014 WL 907193, at *3 (S.D. Ohio
Mar. 7, 2014) (“[T]he Habeas Court can not consider
such arguments as: ‘there was contradictory evidence,
' or ‘whether the corroborating witness had a
motive to lie' etc.”).
continues to ignore the evidence that the Michigan Court of
Appeals cited as supporting his conviction. When viewed in
the light most favorable to the prosecution, it is clear that
Petitioner's claim must fail. According to Allegretti,
Petitioner secured an entry into Allegretti's home, went
to Allegretti's residence with two armed gunmen, told
Allegretti to turn over the “guap” (slang for
money), and ordered the two gunmen to check Allegretti's
pockets. Thus, the Michigan Court of Appeals determination
that the testimony of John Allegretti was sufficient to
support the jury's verdict was not contrary to, nor an
unreasonable application of clearly established federal law.
The Court will overrule the Petitioner's objection on