United States District Court, W.D. Michigan, Northern Division
ROLANDO Q. ALVARADO, Petitioner,
CATHERINE BAUMAN, Respondent.
OPINION AND ORDER
T. NEFF UNITED STATES DISTRICT JUDGE.
a habeas corpus petition filed pursuant to 28 U.S.C. §
2254. The matter was referred to the Magistrate Judge, who
issued a Report and Recommendation (R&R) recommending
that this Court deny the petition. The matter is presently
before the Court on Petitioner's three, numbered
objections to the Report and Recommendation. In accordance
with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(3),
the Court has performed de novo consideration of those
portions of the Report and Recommendation to which objections
have been made. The Court denies the objections and issues
this Opinion and Order. The Court will also issue a Judgment
in this § 2254 proceeding. See Gillis v. United
States, 729 F.3d 641, 643 (6th Cir. 2013) (requiring a
separate judgment in habeas proceedings).
Ground for Habeas Relief.
Magistrate Judge concluded that (1) the state appellate court
was not unreasonable in rejecting Petitioner's
ineffective-assistance-of-counsel claim and (2) “the
record strongly supports the [state] court's
analysis” (R&R, ECF No. 12 at PageID.416). Based on
statements made by the prosecutor in closing, the Magistrate
Judge determined that, “the prosecutor clearly
recognized that Petitioner's trial counsel had called
into question Price's credibility” (id. at
PageID.417-418). The Magistrate Judge also found that
“there is ample support in the record for court of
appeal's determination that it would have been
strategically imprudent to ask the jury to more closely focus
on the seriousness of Price's wounds” (id.
first objection to the Report and Recommendation, Petitioner
argues that he is entitled to habeas relief on his single
claim of ineffective assistance of counsel because
“trial counsel failed to use exculpatory material
scientific evidence (victim's medical records) and
request for a ‘Daubert hearing' and present
‘expert testimony' to impeach the victim
Price's testimony” (Objs., ECF No. 13 at
PageID.421). Petitioner's objection merely reiterates the
arguments he made in his petition. Petitioner does not
demonstrate any factual or legal error in the Magistrate
Judge's analysis or conclusion. Therefore,
Petitioner's first objection is without merit and is
Request for an Evidentiary Hearing.
Magistrate Judge concluded that “[n]othing more is
required to satisfy Strickland's deferential
standard of review” than the previously mentioned
determination that the state court analysis is not
unreasonable (R&R, ECF No. 12 at PageID.416). The
Magistrate Judge noted that Petitioner requested the state
appellate court remand for an evidentiary hearing and that
request was denied when the state appellate court concluded
that further factual development was unnecessary
(id. at PageID.411).
Petitioner's second and third numbered objections, he
argues that he is entitled to an evidentiary hearing.
Specifically, “Petitioner contends that the state
court's adjudication and evidentiary findings without
holding an evidentiary hearing and [providing] Petitioner an
opportunity to present evidence … resulted in an
unreasonable determination of facts” (Objs., ECF No. 13
at PageID.422). According to Petitioner, the
“essence” of his “objection to the
Magistrate Judge's report and recommendation is that the
record in state court proceedings, and in this honorable
court is inadequately developed[, ] and the failure to
provide Petitioner a full and fair hearing would be a
‘manifest injustice'” (id. at
objections must “specifically identify the portions of
the proposed findings, recommendations or report to which
objections are made and the basis for such objections.”
W.D. Mich. LCivR 72.3(b). Petitioner's objections fail to
identify-let alone demonstrate-specific factual or legal
errors in the Report and Recommendation. Therefore,
Petitioner's second and third numbered objections are
also properly denied.
determined that Petitioner's objections lack merit, the
Court must further determine pursuant to 28 U.S.C. §
2253(c) whether to grant a certificate of appealability as to
the issues raised. See Rules Governing § 2254
Cases, Rule 11 (requiring the district court to “issue
or deny a certificate of appealability when it enters a final
order”). The Court must review the issues individually.
Slack v. McDaniel, 529 U.S. 473 (2000); Murphy
v. Ohio, 263 F.3d 466, 466-67 (6th Cir. 2001).
“Where a district court has rejected the constitutional
claims on the merits, the showing required to satisfy §
2253(c) is straightforward: The petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack, 529 U.S. at 484. Upon review,
this Court finds that reasonable jurists would not find the
Court's assessment of Petitioner's
ineffective-assistance-of-counsel claim debatable or wrong. A
certificate of appealability will therefore be denied.
IS HEREBY ORDERED that the Objections (ECF No. 13)
are DENIED and the Report and Recommendation of the
Magistrate Judge (ECF No. 12) is APPROVED and ADOPTED as the
Opinion of the Court.
IS FURTHER ORDERED that the petition for habeas
corpus relief (ECF No. 1) is DENIED for the reasons stated in
the Report and Recommendation.
IS FURTHER ORDERED that a certificate of
appealability pursuant to 28 U.S.C. § 2253(c) is ...