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Moore v. Hoffner

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

May 25, 2018

Robert Moore, Petitioner,
v.
Bonita Hoffner, Respondent.

          OPINION

          PAUL L. MALONEY UNITED STATES DISTRICT JUDGE

         On July 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.)

         Statement of Facts

         Petitioner “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.

         Objections 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.

         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).

         Analysis

         Petitioner asserted seven grounds for relief in his § 2254 petition:

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.

         After 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 No. 12.)

         I. Sufficiency of the evidence

         The 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).

         Based 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 sufficient evidence.

(ECF No. 11-16 at PageID.115-17.)

         In his 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 them.

         Additionally, 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.”).

         Petitioner 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 this ground.

         II. Ineffective ...


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