United States District Court, W.D. Michigan, Northern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
J. QUIST UNITED STATES DISTRICT JUDGE
Brian Anthony Peeples, objects to Magistrate Judge Maarten
Vermaat's April 3, 2019, Report and Recommendation (R
& R) recommending that the Court deny Petitioner's
habeas petition and deny Petitioner a certificate of
appealability. Petitioner raised four claims:
(1) his trial counsel was ineffective for failing to move for
a Walker (suppression) hearing in order to litigate
whether Petitioner's incriminating statements to the
police at the time of his arrest were made in violation of
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602
(2) he was denied his right to a fair trial by the admission
of text messages sent from, and received by, a cell phone
number that Petitioner allegedly used, where the text
messages were not admissible under any exception to the
(3) he was denied his right to a fair trial because the text
messages were not sufficiently linked to Petitioner as
required by MRE 901; and
(4) the evidence, absent Petitioner's statements to the
police at the time of his arrest and the text messages, was
insufficient to sustain his conviction.
issue 1, the magistrate judge concluded that the
state-court's application of the “public
safety” exception set forth in New York v.
Quarles, 467 U.S. 649, 104 S.Ct. 2626 (1984), to
Petitioner's statement that he had already disposed of
the gun, and the state-court's determination that
Petitioner's statements to the crowd did not violate
Miranda because Petitioner volunteered them without
prompting by the police, were neither contrary to, nor an
unreasonable application of, clearly established law of the
United States Supreme Court. (ECF No. 24 at PageID.954-56.)
In light of that conclusion, the magistrate judge found that
the Michigan Court of Appeals correctly rejected
Petitioners's ineffective assistance claim because
counsel cannot be ineffective for failing to file meritless
motions. (Id. at PageID.960-61.) As for issues 2 and
3, the magistrate judge observed that Petitioner failed to
cite any federal authority undermining the state-court's
determination that the phone records and texts were
admissible, or supporting the proposition that such evidence
was constitutionally inadmissible. (Id. at
PageID.958-59.) Finally, as to issue 4, the magistrate judge
concluded that the Michigan Court of Appeals'
determination that the prosecution presented sufficient
evidence to convict Petitioner-with or without the text
messages and Petitioner's incriminating statements-was
not an unreasonable application of Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
(Id. at PageID.963.)
to 28 U.S.C. § 636(b), upon receiving an objection to a
report and recommendation, 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.” After conducting a de novo
review of the R & R, Petitioner's Objections, and the
pertinent portions of the record, the Court concludes that
the R & R should be adopted and the petition denied.
argues that the magistrate judge erred in concluding that the
state court properly concluded that the “public
safety” exception and the voluntariness of
Petitioner's statements rendered Petitioner's
statements properly admissible. As to the “public
safety” exception, Petitioner argues that the exception
is inapplicable because no witness testified that the
officers felt they were in danger after they apprehended
Petitioner. But the public safety exception is not so narrow.
As the Sixth Circuit has observed, the exception
“requires an officer to have reason to believe (1) that
the defendant might have (or recently have had) a weapon, and
(2) that someone other than police might gain access to that
weapon and inflict harm with it.” Hart v.
Steward, 623 Fed.Appx. 739, 746 (6th Cir. 2015)
(internal quotation marks omitted). Thus, the exception
applies if officers or members of the public might
be in danger if someone gains access to the weapon. Here,
Petitioner does not argue that the officers lacked a reason
to believe that Petitioner either possessed or had disposed
of a weapon. In fact, Detective York testified that he told
Petitioner that several kids lived around the area and that
he did not want one of them to find a gun if Petitioner had
tossed one. (ECF No. 19-5 at PageID.471.) Thus, as the
magistrate judge concluded, Detective York's question to
Petitioner “fit squarely within the exception.”
(ECF No. 24 at PageID.955.) As for Petitioner's assertion
that his additional, voluntary statements were subject to
Miranda because he was in custody when he made them,
Petitioner fails to cite any case to support his argument.
Moreover, the law is clear that “where a defendant [in
custody] makes a voluntary statement without being questioned
or pressured by an interrogator, the statements are
admissible despite the absence of Miranda
warnings.” United States v. Murphy, 107 F.3d
1199, 1204 (6th Cir. 1997) (citing United States v.
Montano, 613 F.2d 147, 149 (6th Cir. 1980)). The
evidence was that Petitioner volunteered his additional
statements, not to the police, but to the people in the
crowd. (Id. at PageID.471-72.) Petitioner's
arguments thus lack merit.
foregoing reasons, the magistrate judge also properly
recommended that the Michigan Court of Appeals'
determination that Petitioner's trial counsel was not
ineffective for failing to file a meritless motion to
suppress was not contrary to, nor an unreasonable application
of, Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052 (1984).
of the Evidence
asserts that the magistrate judge erred in recommending that
the Court conclude that Petitioner is not entitled to relief
on his sufficiency of the evidence claim. Petitioner again
argues that, absent the evidence of Petitioner's
statements at the time of his arrest and the text messages
Petitioner sent to the mother of his child, the evidence was
insufficient to convict Petitioner. The Michigan Court of
Appeals analyzed the evidence with and without
Petitioner's statements and the text messages and
concluded that, in either case, the evidence was sufficient
to convict Petitioner.
fails to show that the magistrate judge erred in recommending
that Petitioner be denied relief on this ground. As the
magistrate judge observed, there was sufficient evidence to
allow the jury to infer that Petitioner was the shooter.