United States District Court, W.D. Michigan, Southern Division
L. MALONEY UNITED STATES DISTRICT JUDGE
November 5, 2015, Petitioner Jaquan Henderson filed a
petition under 28 U.S.C. § 2254 seeking relief from a
state conviction. (ECF No. 1.) The State of Michigan, through
Jackson, filed its response on May 17, 2016. (ECF No. 5.) The
Magistrate Judge issued an R&R on December 27, 2017,
recommending that the petition be denied. (ECF No. 10.) The
matter is now before the Court for de novo review of
Petitioner's timely objections to the R & R. (ECF No.
takes no issue with the facts as summarized by the magistrate
judge. Since he lodges objections only to legal conclusions,
the Court ADOPTS the magistrate judge's summary of the
facts contained in the R & R. (ECF No. 10.)
respect to a dispositive motion, a magistrate judge issues a
report and recommendation, rather than an . 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.
asserted three grounds for relief in his § 2254
Whether the trial court reversibly erred in failing to
instruct the jury on duress, when there was evidence that
[Henderson] shot his gun only in response to being threatened
with a shotgun by a codefendant, and therefore violated
[Henderson's] Fourteenth Amendment rights to due process
and to a fair trial.
[Henderson's] convictions for second degree murder and
assault with intent to commit murder must be vacated because
there is insufficient evidence of malice and/or intent to
kill to sustain the convictions beyond a reasonable doubt.
U.S. Const. Am. XIV.
[Henderson's] conviction for assault with intent to
commit murder must be reversed due to a structural error in
the jury instructions i.e. failure to instruct on one of the
essential elements of the offense After thoroughly examining
each issue, the magistrate judge concluded Henderson's
arguments lacked merit and recommended that the Court deny
his petition. (ECF No. 10.) From these three grounds,
Henderson now raises seven objections. (ECF No. 13.)
1: Jury Instructions on Duress
magistrate judge concluded that the trial court did not
commit an error of constitutional magnitude by refusing to
instruct the jury on the defense of duress. The judge
reasoned that, because “States are free to define
elements of, and defenses to, crimes, ” Gimotty v. Elo,
40 Fed.Appx. 29, 32 (6th Cir. 2002), the Michigan Court of
Appeals' determination that the defense of duress was not
available to Henderson was controlling. (See ECF No. 6-11.)
now asserts that Michigan “has long recognized the
existence of the affirmative defense of duress.” (ECF
No. 13 at PageID.1559.) He cites People v. Luther, 394 Mich.
619, 622 (1975). But he does not acknowledge that duress is
not a defense to homicide under Michigan law. See People v.
Gimotty, 216 Mich.App. 254, 257 (1996). The Michigan Court of
Appeals also concluded that duress was not applicable to a
charge of Assault with Intent to Commit Murder. (See ECF No.
6-11 at PageID.1340 (“[A]pplication of a duress defense
in the context of AWIM would be entirely incongruous ...