Martin #256975 v. McKee

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATION 37 and denying petition for writ of habeas corpus ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

J A C O B MARTIN, Petitioner, C a se No. 1:06-CV-536 v. HON. ROBERT HOLMES BELL K E N N E T H McKEE, R e sp o n d e n t. / O R D E R ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS T h is matter is before the Court on Petitioner Jacob Martin's objections to the M a g is tra te Judge's April 8, 2009, Report and Recommendation ("R&R") recommending th a t Petitioner's § 2254 petition for writ of habeas corpus be denied. (Dkt. No. 37.) The R & R was duly served on the parties.

This Court is required to make a de novo review upon the record of those portions of the R&R to which specific objections have been made. 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) ("[A] general objection to a magistrate's report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious."). Although the Magistrate Judge's R&R is reviewed de novo, this Court must review the state court

proceedings consistent with the standards set forth in 28 U.S.C. § 2254.
P e titio n e r objects to the conclusions reached in the R&R with respect to each of the f o u r issues raised in his petition. Petitioner contends that, contrary to the conclusions re a ch e d in the R&R, his confession was made involuntarily; the failure to instruct on the le ss e r included offense was a clear miscarriage of justice; the failure to grant his request for s u b s titu te counsel resulted in a fundamentally unfair trial; and the instruction to the jury that it could "infer" intent to kill from the use of a dangerous weapon, without an instruction to th e contrary, i.e., that the weapon could have been used for another purpose such as selfd e f e n s e , amounted to an improper shifting of the burden of proof and resulted in a f u n d a m e n ta lly unfair trial. Each of these issues has been thoroughly addressed in the R&R. Petitioner has not id e n tif ie d any specific errors in the R&R's analysis. Upon de novo review, the Court is s a tis f ie d that the R&R accurately recites the facts and correctly applies the pertinent law. A c c o r d i n g l y, I T IS HEREBY ORDERED that Petitioner's objections to the Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 38) are DENIED. I T IS FURTHER ORDERED that the April 8, 2009, R&R (Dkt. No. 37) is A P P R O V E D and ADOPTED as the opinion of the Court. I T IS FURTHER ORDERED that Petitioner's petition for writ of habeas corpus ( D k t . No. 1) is DENIED.

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I T IS FURTHER ORDERED that a certificate of appealability is DENIED. 28 U .S .C . § 2253(c); Slack v. McDaniel, 529 U.S. 473 (2000).

Dated: August 18, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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