Foster #151207 v. Smith
OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 79 ; petition for habeas corpus relief 46 is DENIED; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
ROBERT LEE FOSTER,
Case No. 1:07-cv-854
HON. JANET T. NEFF
WILLIE O. SMITH,1
OPINION AND ORDER
Petitioner filed this habeas corpus petition pursuant to 28 U.S.C. § 2254, presenting claims
of insufficiency of the evidence (Claim I), ineffective assistance of counsel (Claims II & III), and
prosecutorial misconduct resulting in an unfair trial (Claim IV). The matter was referred to the
Magistrate Judge, who issued a Report and Recommendation (R & R, Dkt 79), recommending that
this Court deny the petition as to all claims. The matter is presently before the Court on Petitioner’s
objection to the Report and Recommendation (Obj., Dkt 80). 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 objection has 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, No. 12-3397, 2013 WL 4779112, at *2 (6th Cir.
Sept. 9, 2013) (requiring a separate judgment in habeas proceedings).
Mary Berghuis has been substituted as Respondent.
Claim I. Sufficiency of Evidence at Trial
Petitioner presents no specific objection to the Magistrate Judge’s analysis of Petitioner’s
claim that the trial evidence was insufficient for conviction; he simply “reasserts that the evidence
was insufficient and asks this court to review this issue de novo” (Obj. at 2). The Magistrate Judge
thoroughly considered this claim. Petitioner points to no particular factual or legal error in the
Magistrate Judge’s analysis, and he is not entitled to general de novo review of the Report and
Recommendation. See W.D. Mich. LCivR 72.3(b) (written objections “shall specifically identify
the portions of the proposed findings, recommendations or report to which objections are made and
the basis for such objections”). Therefore, his objection with regard to Claim I is denied.
Claim II. Ineffective Assistance of Counsel: Petitioner’s Testimony
Petitioner again presents no particular objection to the Magistrate Judge’s analysis of
Petitioner’s claim that his trial counsel was ineffective for permitting Petitioner to testify in a
narrative fashion. Petitioner merely “reasserts that the Michigan Court of Appeals [sic] was contrary
to an unreasonable application of Nix or any other Supreme Court Authority” (Obj. at 2). As with
Claim I, Petitioner fails to demonstrate any error in the Magistrate Judge’s analysis or conclusion.
Petitioner’s second objection is therefore denied.
Claim III. Ineffective Assistance of Counsel: Competency Evaluation
Petitioner argues that “Defense counsel was under the mistaken impression, and failed to
investigate Petitioner’s prior history of mental illness, ” including but not limited to, hospitalization
at the Ypsilanti State Hospital for an extended period, from 1977 to 1979 (Obj. at 3). Petitioner
Nix v. Whiteside, 475 U.S. 157 (1975).
asserts that he has presented enough evidence to generate a substantial and legitimate doubt about
his mental capacity and, implicitly, that counsel was ineffective for failing to investigate this defense
Petitioner’s claim of ineffective assistance, and his related assertions in his objections, were
fully considered by the Magistrate Judge (R & R at 22-23). The Magistrate Judge noted that
Petitioner’s trial counsel sought and obtained a mental competency evaluation of Petitioner, and
Petitioner was found competent to stand trial (id. at 22). The trial court accepted this determination,
and the state court found Petitioner’s claim of ineffective assistance completely without merit (id.).
The Magistrate Judge noted that Petitioner offered no basis for questioning the state court’s
disposition of this claim or for his contention that counsel was ineffective for failing to request a
second evaluation (id. at 22-23). The Magistrate Judge properly concluded that Plaintiff failed to
demonstrate that counsel’s conduct was unreasonable or that it prejudiced Plaintiff in any way.
Therefore, Petitioner’s objections related to Claim III are denied.
Claim IV. Prosecutorial Misconduct
Petitioner quotes the Magistrate Judge’s analysis of his claim for prosecutorial misconduct,
and states “However, during trial, the Prosecutor continually and repeatedly referred to the alleged
victim as the ‘victim’ and pointed his finger a few inches from Defendant’s nose claiming ‘he is a
killer. He is a murderer’” (Obj. at 4).
Petitioner’s one-sentence argument merely reiterates his assertions before the Magistrate
Judge (see R & R at 23). Further, he provides no basis for his contention that the “cumulative effect
of the error which took place at his trial deprive[d] petitioner of his constitutional rights to a fair trial
and due process of law” (Obj. at 4). Petitioner fails to point to any factual or legal error in the
Magistrate Judge’s analysis. See W.D. Mich. LCivR 72.3(b). The Magistrate Judge properly
concluded that the prosecutor’s conduct did not render Petitioner’s trial fundamentally unfair and
that Petitioner was not entitled to relief on his claim of prosecutorial misconduct (R & R at 24).
Petitioner’s objection on Claim IV is denied.
Certificate of Appealability
Having 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
“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 claims of insufficient evidence, ineffective assistance of counsel,
or prosecutorial misconduct debatable or wrong. A certificate of appealability is therefore denied.
IT IS HEREBY ORDERED that the Objections (Dkt 80) are DENIED, and the Report and
Recommendation of the Magistrate Judge (Dkt 79) is APPROVED and ADOPTED as the Opinion
of the Court.
IT IS FURTHER ORDERED that the petition for habeas corpus relief (Dkt 46) is DENIED
for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c) is DENIED as to each issue asserted.
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
Dated: March ___, 2014
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