Middlebrooks #315359 v. Berghuis

Filing 57

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 52 and denying petitioner's petition for writ of habeas corpus 1 ; 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

H A R O L D C. MIDDLEBROOKS, Petitioner, C a se No. 1:07-CV-26 v. HON. ROBERT HOLMES BELL M A R Y BERGHUIS, R e sp o n d e n t. / O R D E R DENYING PETITION FOR WRIT OF HABEAS CORPUS T h is matter is before the Court on Petitioner Harold C. Middlebrooks's objections to th e Magistrate Judge's April 14, 2009, Report and Recommendation ("R&R") recommending th a t Petitioner's § 2254 petition for a writ of habeas corpus be denied. The R&R was duly s e rv e d on the parties. Pursuant to Petitioner's request, the time for filing objections was e x te n d e d to May 28, 2009. (Dkt. No. 55, Order.) Petitioner filed objections to the R&R on M ay 29, 2009. (Dkt. No. 56.)

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 has raised numerous objections to the R&R. With respect to his Fourth A m e n d m e n t claim, Petitioner contends, among other things, that the Magistrate Judge m is in te rp re te d the law as it applies to search and seizure, that he erroneously applied the S to n e v. Powell doctrine, that there was insufficient evidence to establish probable cause that h e committed the crime, and that there was insufficient evidence to conclude that there was c o n s e n t to enter the house. With respect to his ineffective assistance of counsel claim, P e titio n e r contends, among other things, that appellate counsel was ineffective for failing to c h a lle n g e the trial court's refusal to suppress Petitioner's statements, for failing to raise trial co u n sel's ineffectiveness on direct appeal, and for failing to challenge the trial court's d e te rm in a tio n that the police entered Petitioner's home with consent. The R&R systematically and thoroughly addresses all of Petitioner's claims and c o rre c tly applies the pertinent law . Petitioner has not identified any error in the Magistrate J u d g e 's analysis. The Court will accordingly adopt the R&R. A n appeal may not be taken from a final order in a habeas case unless a certificate of a p p e ala b ility is issued. 28 U.S.C. § 2253(c)(1). A certificate of appealability may be issued " o n ly if the applicant has made a substantial showing of the denial of a constitutional right." 2 8 U.S.C. § 2253(c)(2). If an appeal is filed, the district judge who ruled on the habeas

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petition must either issue a certificate of appealability or state why a certificate should not is s u e . Fed. R. App. P. 22(b). The district court may decide whether to issue a certificate of a p p e ala b ilility at the time of denial of habeas relief, and need not await an appeal or an a p p lic a tio n for a certificate. Castro v. United States, 310 F.3d 900, 901-03 (6th Cir. 2002). B e c au s e Movant has failed to make a substantial showing of the denial of a constitutional rig h t, a certificate of appealability will be denied. Accordingly, 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. 56) are DENIED. I T IS FURTHER ORDERED that the April 14, 2009, Report and Recommendation o f the Magistrate Judge (Dkt. No. 52 ) is APPROVED and ADOPTED as the opinion of the C o u rt. I T IS FURTHER ORDERED that Petitioner's petition for writ of habeas corpus ( D k t . No. 1) is DENIED.

Dated: January 16, 2010

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