Preston v. Gidley

Filing 30

ORDER Adopting 28 Report and Recommendation and a certificate of appealability is denied. Signed by District Judge Gordon J. Quist. (ATee)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

HARVEY PRESTON,
Petitioner,
v.

Case No. 2:14-CV-10606

LORI GIDLEY,

HON. GORDON J. QUIST

Respondent.
/
ORDER ADOPTING
REPORT AND RECOMMENDATION
Petitioner, Harvey Preston, filed a petition for a writ of habeas corpus raising a number of
issues. On May 31, 2017, Judge Ellen S. Carmody issued a thorough 37 page Report and
Recommendation (R & R) recommending that the Court deny Preston’s petition. (ECF No. 28.)
Pursuant to Federal Rule of Civil Procedure 72(b), a petitioner “may serve and file specific
written objections” to the R & R, and the Court is to consider any proper objection. Local Rule
72.3(b) likewise requires that written objections “shall specifically identify the portions” of the R
& R to which a petitioner objects. The Sixth Circuit has held that objections to an R&R must be
specific. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “The filing of vague, general, or
conclusory objections does not meet the requirement of specific objections and is tantamount to a
complete failure to object.” Drew v. Tessmer, 36 F. App’x 561 (6th Cir. 2002). Therefore, if a
petitioner does not provide specific reasons for his objections, the objections are to be overruled.
Preston did not specifically object to the magistrate judge’s report and recommendation.
Rather, his objections read more like an initial petition. Therefore, Preston’s objections are deemed
waived. As the Sixth Circuit has observed:

This circuit has established that failure to file objections to a magistrate judge’s
report and recommendation constitutes a waiver of the right to appeal. United
States v. Real Prop. Located at 1184 Drycreek Rd., Granville, Ohio 43023, 174
F.3d 720, 725 (6th Cir. 1999). [Plaintiff] did file a timely objection. However, not
only must objections be timely, they must also be specific; an objection to the report
in general is not sufficient and results in waiver of further review. Miller v. Currie,
50 F.3d 373, 380 (6th Cir. 1995); Howard v. Sec’y of Health & Human Servs., 932
F.2d 505, 508-09 (6th Cir. 1991).
Thrower v. Montgomery, 50 F. App’x 262, 263-64 (6th Cir. 2002).
Nevertheless, the Court has done a de novo review of the R & R and adopts the R & R.
Pursuant to 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of
appealability should be granted.

A certificate should issue if Preston has demonstrated a

“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit has disapproved issuance of blanket denials of a certificate of appealability. Murphy v.
Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Rather, the district court must “engage in a reasoned
assessment of each claim” to determine whether a certificate is warranted. Id. at 467. Each issue
must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529
U.S. 473, 120 S. Ct. 1595 (2000); Murphy, 263 F.3d at 467. Therefore, the Court has considered
Preston’s claims, including his objections, under the Slack standard.
Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to warrant a grant of the certificate, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” For the reasons stated above, the Court finds that
reasonable jurists could not find that this Court’s denial of Preston’s claims were debatable or
wrong. Thus, the Court will deny Preston a certificate of appealability. Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
issued May 31, 2017 (ECF No. 28) is APPROVED AND ADOPTED as the Opinion of this
Court, and Petitioner’s Objection (ECF No. 29) is OVERRULLED.
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IT IS FURTHER ORDERED that Petitioner’s habeas corpus petition is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED by this
Court.
A separate judgment will issue.

Dated: October 12, 2017

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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