Woods v. Woods

          ORDER ADOPTING THE REPORT AND RECOMMENDATION AND DENYING PETITIONER'S HABEAS PETITION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE

         The matter before the Court is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The matter was referred to Magistrate Judge Timothy P. Greeley, ^[1] who issued a Report and Recommendation (R & R), recommending that the Court deny Petitioner's petition, deny a certificate of appealability, and deny Petitioner's motions to compel, for a stay, and to amend. (ECF No. 21.) Petitioner timely filed objections to the R & R. (ECF No. 25.)

         Upon receiving objections to an R & R, 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.” 28 U.S.C. § 636(b)(1). This Court may accept, reject, or modify any or all of the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

         After conducting a de novo review of the R & R, the objections, and the pertinent portions of the record, the Court concludes that the R & R should be adopted and Petitioner's habeas petition should be denied. The Court will address each of Petitioner's objections in turn.

         Objections 1, 9, and 10

         Petitioner first objects to the magistrate judge's characterization and resolution of his Habeas Issue VI regarding alleged Confrontation Clause violations. Petitioner alleged three Confrontation Clause violations in Habeas Issue VI: (1) a crime scene specialist presented DNA evidence, instead of the analyst who examined the DNA; (2) a subpoena analyst with Sprint Nextel presented geographical cell site information, rather than the engineer who prepared the report; and (3) a detective testified about the Prey Smartphone application that was referenced in a recorded jail phone call between Petitioner and codefendant, Welch.

         The Court agrees that the magistrate judge focused on only the first of the three alleged Confrontation Clause violations, but that focus does not provide any relief to Petitioner. The other two sub-parts of Habeas Issue VI are not cognizable on federal habeas review-those two issues were raised in the state courts as evidentiary issues rather than constitutional issues. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991).

         Turning to the first sub-part of Habeas Issue VI, which was addressed in the R & R, the Court agrees with the magistrate judge that even if the crime scene specialist's report of the DNA test results was admitted in violation of the Confrontation Clause, the admission of the evidence was harmless error. The impact of the DNA evidence inside the white gloves was a minimal part of the prosecution's case compared with the other evidence linking Petitioner to the robbery. Furthermore, the DNA evidence was cumulative. There is no dispute that the white gloves were found in the car that Petitioner was driving when he was arrested, so there was already evidence that the gloves belonged to Petitioner. Thus, the admission of the DNA evidence did not have a “substantial and injurious effect or influence” on the jury's verdict, and Petitioner is not entitled to habeas relief. See Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722 (1993).

         Objection 2

         Petitioner argues that the magistrate judge abused his discretion in accepting Respondent's untimely filed response to the petition. On August 24, 2018, the magistrate judge entered an order denying Petitioner's motion to exclude the response because Respondent showed excusable neglect in that the petition and order to respond were sent to the wrong department of the Attorney General's Office. (ECF No. 12.) Had Petitioner wished to challenge the magistrate judge's order, he could have filed a motion for reconsideration or an appeal to this Court. But an objection several months later is not the appropriate vehicle to review the order. Moreover, the Court agrees with the magistrate judge's conclusion that Respondent showed good cause for not complying with the order to respond.

         Objection 3

         Petitioner challenges the magistrate judge's conclusion that Petitioner's motion to compel production of Rule 5 materials and for an extension of time to file his reply brief (ECF No. 15) is moot. The Court agrees with the magistrate judge.

         The Rule 5 materials were filed on August 31, 2018. It appears to the Court-as it did to the magistrate judge-that Petitioner did not receive the materials right away because of a prison transfer on August 28, 2018 (id.), and that Petitioner eventually received the materials because he cites to portions of the trial transcripts in his reply brief. (ECF No. 20.) Additionally, the reply brief was timely filed, so the request for an extension is also moot.

         Objections ...