Maxon #364944 v. Berghuis

Filing 66

ORDER ADOPTING REPORT AND RECOMMENDATION 59 ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFFREY MAXON,
Petitioner,

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THOMAS BELL,
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Respondent.
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No. 1:07-cv-363
HONORABLE PAUL L. MALONEY

ORDER ADOPTING REPORT AND RECOMMENDATION
Jeffrey Maxon, a prisoner under the control of the Michigan Department of Corrections
(“MDOC”), proceeding pro se, filed an application for writ of habeas corpus under 28 U.S.C. §
2254. Maxon was convicted in 2001 by a jury in state court of three counts of first-degree criminal
sexual conduct and one count of second-degree criminal sexual conduct. The magistrate judge
reviewed the petition and issued a report recommending the petition be denied. (ECF No. 59.)
Maxon timely filed objections. (ECF No. 63.)
After being served with a report and recommendation (R&R) issued by a magistrate judge,
a party has fourteen days to file written objections to the proposed findings and recommendations.
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). A district court judge reviews de novo the portions
of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only
those objections that are specific are entitled to a de novo review under the statute. Mira v.
Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district court need not provide
de novo review where the objections are frivolous, conclusive or too general because the burden is
on the parties to “pinpoint those portions of the magistrate’s report that the district court must
specifically consider”); see Thomas v. Arn, 474 U.S. 140, 150 (1985).
The Court has carefully considered Petitioner’s objections to the Report and

Recommendation. Generally, Petitioner’s objections merely reassert the same arguments presented
in his petition, or earlier in either his direct appeal or his state-level collateral attack. Although
Petitioner expresses disagreement with the magistrate judge’s conclusions, Petitioner’s reasoning
finds little support in either law or fact. The Court finds the Report and Recommendation accurately
summarizes the relevant facts based on the testimony presented at trial. Petitioner’s version of the
facts isolates individual words, phrases, or statements and fails to consider them in the context in
which they were made. The Court further finds the Report and Recommendation accurately outlines
the relevant law on each of Petitioner’s claims. Petitioner’s objections generally rely misstatements
of the law and opinions that do not apply to his situation.
Accordingly, the report and recommendation is ADOPTED, over objections, as the opinion
of this Court.
Certificate of Appealability
A district court must issue a certificate of appealability either at the time the application for
writ of habeas corpus is denied or upon the filing of a notice of appeal. Castro v. United States, 310
F.3d 900, 903 (6th Cir. 2002) (per curiam). A court may issue a certificate of appealability “only if
the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). To satisfy this standard, the
petitioner must show that “reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’” Id. (quoting Slack v. McDaniel, 529 U.S.
473, 483 (2000)). Courts should undertake an individualized determination of each claim presented
by the petitioner when considering whether to issue a certificate of appealability. Murphy v. Ohio,

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551 F.3d 485, 492 (6th Cir. 2009).
The Court has reviewed the petition and objections for the purpose of deciding whether to
issue a certificate of appealability. The Court declines to issue any such certificate. Reasonable
jurists would agree that Petitioner has failed to establish a violation of his rights under the
Confrontation Clause. Petitioner was able to cross examine all witnesses whose testimonial
statements were offered against him. Reasonable jurists would agree that Petitioner has failed to
establish that the Prosecutor made improper comments during closing argument. When viewed in
context, the Prosecutor did not vouch for the victim, call Petitioner a liar, or shift the burden of
proof. The Prosecutor did not suggest that Petitioner’s failure to appear at a meeting with Trooper
Nael indicated Petitioner’s guilt. On this point, the Supreme Court has not held that pre-Miranda
warnings must be given over the telephone when an officer arranges to meet a suspect. Reasonable
jurists would agree that the trial court judge did not improperly instruct the jury. On this point,
Petitioner fails to view the facts in the light most favorable to the Government. Furthermore,
Petitioner’s jury instructions argument does not raise a claim of constitutional magnitude.
Reasonable jurist would agree that Petitioner has not established that the trial judge was biased or
that such bias rose to a level of constitutional significance. Reasonable jurists would agree that
Petitioner’s sentencing claims rely on assumptions unsupported by law and do not rely on precedent
clearly established by the Supreme Court. Reasonable jurists would agree, contrary to Petitioner’s
claims, that trial counsel’s performance before, during, and after trial, must be evaluated under
Strickland v. Washington, 466 U.S. 668, 687-88 (1984), and did not fall below an objective standard
of reasonableness. Similarly, reasonable jurists would agree that appellate counsel’s performance
did not fall below an objective standard of reasonableness.

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For the reasons provided above, IT IS HEREBY ORDERED that
1.

The report and recommendation (ECF No. 59) is ADOPTED over objections, as the opinion
of this Court;

2.

Jeffrey Maxon’s application for writ of habeas corpus filed under 28 U.S.C. § 2254 is
DENIED; and

3.

A Certificate of Appealability is DENIED.

Date:

October 4, 2011

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

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