Onumonu #303121 v. Lafler

Filing 31

MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 29 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, sdb)

O n u m o n u #303121 v. Lafler

D o c . 31

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF MICHIGAN S O U T H E R N DIVISION

N O S A K H A R E ONUMONU, P e t i t io n e r , v. B L A IN E C. LAFLER, R e sp o n d e n t. _________________________/ C A S E NO. 1:08-CV-219 H O N . ROBERT HOLMES BELL

M E M O R A N D U M OPINION AND ORDER T h is matter comes before the Court on Petitioner Nosakhare Onumonu's petition u n d e r 28 U.S.C. § 2254 for a writ of habeas corpus. On October 16, 2009, Magistrate Judge Jo se p h G. Scoville issued a report and recommendation ("R&R") recommending that this p e titio n be denied. (Dkt. No. 29.) Petitioner filed objections to the R&R on October 30, 2 0 0 9 . (Dkt. No. 30.) This Court is required to review de novo those portions of the R&R to which specific objection has been made, and may accept, reject, or modify any or all of th e Magistrate Judge's findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P . 72(b). Only specific objections are entitled to de novo review; vague and conclusory o b je c tio n s amount to a complete failure to object as they are not sufficient to pinpoint those p o rtio n s of the R&R that are legitimately in contention. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam).

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P e titio n e r's habeas corpus petition raises five grounds for relief: (1) a Sixth A m e n d m e n t violation resulting from the trial court's failure to "hold a formal colloquy" to a llo w Petitioner to express his dissatisfaction with his appointed counsel; (2) a due process v io l a ti o n resulting from the trial court's refusal to allow trial counsel to withdraw; (3) the d e n ial of effective assistance of counsel resulting from trial counsel's failure to sufficiently a rg u e for withdrawal; (4) the denial of effective assistance of counsel resulting from trial c o u n se l's failure to move for a mistrial based on the introduction of prejudicial evidence; and (5 ) the denial of effective assistance of counsel resulting from appellate counsel's failure to raise grounds (1) and (3) above on appeal. (Dkt. No. 5.) The R&R recommends that each claim be denied. Petitioner does not object to the re c o m m e n d a tio n that claim (5) be denied. Petitioner objects to the recommendation that c laim s (3) and (4) be denied only by asserting that he "will rely soly on petitioners reply to re sp o n d e n t answer to petition for Writ Of Habeas Corpus. For this issue." (Dkt. No. 30, P e t it io n e r's Objections 5 (errors in original).) This vague and general objection is not su f f icie n t to allow the Court to pinpoint the issues that are legitimately in dispute, and it is th e re f o re not entitled to de novo review. See Mira, 806 F.2d at 637. The Court has reviewed th e R&R's analyses and recommendations relating to claims (3), (4), and (5), and has d e ter m in e d that they are correct. P e titio n e r specifically objects to the Magistrate Judge's determinations that no Sixth A m e n d m e n t violation resulted from the trial court's failure to "hold a formal colloquy" to

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a llo w Petitioner to express his dissatisfaction with appointed counsel, that no due process v io la tio n resulted from the trial court's refusal to allow Petitioner's counsel to withdraw, and th a t this Court is not required to hold a hearing to allow Petitioner to more fully develop the f a c tu a l basis for his dissatisfaction with his attorney. The Court agrees with the Magistrate J u d g e in all respects. As noted by the Magistrate Judge: T h e Sixth Amendment provides a criminal defendant w ith the right to have the "Assistance of Counsel" for his d e f en s e . One element of that right is the right to have counsel o f one's choice. However, the right to counsel of choice is not w ith o u t limits. The right to counsel of choice does not extend to defendants who require counsel to be appointed for them. An in d ig e n t defendant has no right to have a particular attorney re p re se n t him and therefore must demonstrate "good cause" to w a r ra n t substitution of counsel. Thus, where a court is faced w ith a defendant's request to effect a change in his re p re se n ta tio n by way of a motion to substitute counsel, the c o u rt must determine whether there is good cause for the s u b s titu t io n by balancing the accused's right to counsel of his c h o i c e and the public's interest in the prompt and efficient a d m in is tra tio n of justice. (Dkt. No., 29, R&R at 19 (internal citations and quotation marks omitted).) Nowhere in Petitioner's brief in support of his habeas corpus petition, response to the g o v e rn m e n t's answer, or objections to the R&R does he allege "good cause" in support of th is request to substitute trial counsel. Petitioner claims that there was "a complete

b re a k d o w n in communication" (Dkt. No. 27, Petitioner's Resp. 8) and that his counsel had a n im o s ity for him stemming from a prior representation. (Dkt. No. 2, Petitioner's Br. 11.)

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H o w e v e r, Petitioner's counsel repeatedly represented to the trial court that he had "no o b je c tio n to continuing with [his] representation" of Petitioner. (Dkt. No. 29, R&R at 2.) In addition, Petitioner sought a substitution of counsel only a short time prior to the start of h is trial, after Petitioner's counsel had undergone significant preparation, and in denying P etitio n er's request the trial judge noted that "[w]e don't have anybody who can come here a n d conduct the trial." (Dkt. No. 29, R&R 4.) To the extent Petitioner claims he was not a b le to present his "good cause" to the trial judge because the trial judge did not let him s p e a k in open court, the Court expects that if Petitioner did in fact have such "good cause," h e would present it in connection with this habeas proceeding. Unsupported allegations of a "breakdown in communication" and Petitioner's belief that his counsel had animosity to w a rd him are not sufficient to outweigh the considerations of judicial efficiency in this c a s e . See United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996). Petitioner also re q u e sts an evidentiary hearing to allow him to explain to this Court his dissatisfaction with h is trial counsel, but Petitioner does not inform the Court of what he would allege or show a t the hearing or give the Court any other basis to conclude that Petitioner had "good cause" to support his request for replacement of his trial counsel. Thus, as the Magistrate Judge p ro p e rly concludes, no Sixth Amendment violation resulted from the trial court's failure to " h o ld a formal colloquy" to allow Petitioner to express his dissatisfaction with appointed co u n sel, no due process violation resulted from the trial court's refusal to allow Petitioner's c o u n se l to withdraw, and this Court is not required to hold a hearing to allow Petitioner to

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m o re fully develop the factual basis for his dissatisfaction with his attorney. Pursuant to 28 U.S.C. § 2253, the Court must also determine whether to issue a c e rtif ic a te of appealability. To warrant the grant of a certificate of appealability, Petitioner m u s t demonstrate that "reasonable jurists would find the district court's assessment of the c o n s titu tio n a l claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). T h e Sixth Circuit has disapproved of the issuance of blanket denials of a certificate of a p p e a la b ility. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Rather, the district court m u st "engage in a reasoned assessment of each claim" to determine whether a certificate s h o u ld issue. Id. Upon review of each claim, the Court does not believe that a reasonable ju ris t would find the Court's assessment of Petitioner's claims to be debatable or wrong. Accordingly, I T IS HEREBY ORDERED that Petitioner's objections to the R&R (Dkt. No. 30) a re OVERRULED. IT IS FURTHER ORDERED that the R&R (Dkt. No. 29) is APPROVED and, c o m b in e d with the discussion set forth herein, ADOPTED as the opinion of the Court. I T IS FURTHER ORDERED that Petitioner's amended petition for a writ of habeas c o r p u s (Dkt. No. 5) is DENIED. I T IS FURTHER ORDERED that a certificate of appealability is DENIED. DATED: July 31, 2010 /s/ Robert Holmes Bell ROBERT HOLMES BELL U N IT E D STATES DISTRICT JUDGE

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