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Steel v. Campbell

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

May 8, 2019

Samuel Steel III, Petitioner,
v.
Sherman Campbell, Respondent.

          OPINION

          PAUL L. MALONEY UNITED STATES DISTRICT JUDGE.

         On June 3, 2016, Petitioner Samuel Steel filed a Petition under 28 U.S.C. § 2254, seeking relief from his state conviction for first degree murder, felon in possession of a firearm, and two counts possession of a firearm during the commission of a felony. (ECF No. 1.) The magistrate judge ordered the state to respond and then filed a 40-page Report and Recommendation (R & R) on May 9, 2018. The magistrate judge thoroughly addressed the issues presented and concluded that the petition was meritless. (ECF No. 13.)

         The matter is now before the Court on Petitioner's objections to the R & R, which were filed on November 19, 2018, (ECF No. 16) and Petitioner's motion to hold his petition in abeyance while he returns to state court to exhaust newly-raised claims. (ECF No. 17.)

         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 writtenobjections 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).

         I.

         Before reaching the merits of Petitioner's § 2254, the Court will first address Petitioner's motions to stay the proceedings. (ECF No. 17-18.)

         After the R & R issued on his § 2254, Petitioner filed a motion to stay proceedings while he exhausted an additional claim in state court based on the alleged discovery of new evidence. Petitioner claims that a private investigator hired by his family interviewed a witness to the shooting, Ricky Perry, who was himself shot in the leg at the time of the shooting for which Petitioner stands convicted of first-degree murder. Perry allegedly gave a statement to the private investigator indicating that he saw the shooter, and while he could not identify him, it was not Petitioner.

         Petitioner asserts that he is filing a motion to collaterally attack his conviction in state court, as he must do to properly exhaust the claim here and requests that the Court hold his § 2254 petition in abeyance while he does so. Petitioner relies on Rhines v. Weber in support of his motion to hold his petition in abeyance. Rhines instructs that federal district courts have discretion to stay and hold in abeyance “mixed” § 2254 petitions (containing both exhausted and unexhausted claims) where the petitioner has “good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that [he] engaged in intentionally dilatory litigation tactics.” 544 U.S. 269, 278 (2005).

         Here, Petitioner has not presented any claim for relief which is unexhausted; instead he merely asserts that he has discovered new evidence, suggesting that the discovery may provide the basis for a future habeas claim. The Court does not find that a stay is warranted based on this discovery. Rhines is not applicable, as it dealt with mixed petitions containing both exhausted and unexhausted claims. Petitioner's § 2254 petition is not a “mixed” petition as all claims raised in the Petition are properly before the Court. And moreover, Petitioner has not addressed how the discovery of Ricky Perry-a witness who was surely known to all parties at the time of the incident since he, too, was a victim of the shooting-will lead to a meritorious claim for habeas relief under clearly-established federal law. Accordingly, the motion to stay is DENIED. The Court will next consider Petitioner's objections to the R & R filed by the magistrate judge on his § 2254 petition.

         II.

         Petitioner raised ten claims for relief in his petition, and he now raises five objections to the magistrate judge's recommended resolution of those claims.

         Objection #1: Procedural Default

         Petitioner first claims that the magistrate judge erred by finding that, because the claims raised in grounds IV and X of his petition were meritless, no discussion of procedural default was necessary. This is not an independently cognizable objection; Petitioner in effect says that his grounds for relief were meritorious so the magistrate judge should have analyzed whether or not they were procedurally defaulted. ...


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