Glenn #515116 v. Prelesnik

Filing 34

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 32 ; Petitioner's Petition for Writ of Habeas Corpus is denied; certificate of appealability is denied; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

AMADEUS EUGENE GLENN,
Petitioner,
CASE NO. 1:08-CV-1002
v.
HON. ROBERT J. JONKER
JOHN PRELESNIK,
Respondent.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge’s Report and Recommendation (docket # 32)
and Petitioner’s Objections to Report and Recommendation (docket # 33). Under the Federal Rules
of Civil Procedure, where, as here, a party has objected to portions of a Report and
Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge’s
recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRIGHT,
MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997).
Specifically, the Rules provide that:
The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
with instructions.

FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).

The Court has reviewed de novo the claims and evidence presented to Magistrate Judge
Brenneman; the Report and Recommendation itself; and Petitioner’s Objections. The Magistrate
Judge recommends that the Court deny Petitioner’s petition for a writ of habeas corpus. After its
review, the Court finds the Report and Recommendation to be both factually sound and legally
correct. Petitioner raises several objections, all of which in essence reassert and supplement claims
raised in his habeas petition. Petitioner reiterates his arguments that certain comments the
prosecutor made during his trial were so inflammatory as to deprive Petitioner of a fair trial and
that Petitioner’s defense counsel provided constitutionally ineffective assistance by not objecting
to those comments. The Report and Recommendation already addresses those claims thoroughly
and appropriately. Petitioner also objects to the Magistrate Judge’s conclusion that there is no
reasonable probability that disclosure of prosecution witness David Johnson’s unsuccessful plea
negotiations concerning an unrelated charge would have led to a different result in Petitioner’s trial.
The objection is not persuasive. In addition to the reasons the Report and Recommendation
delineates, the Court notes that the exchange at trial among counsel concerning self-incrimination
makes it clear that all parties were aware of the arson charge against Mr. Johnson. That much was
available for use by defense counsel during cross examination of Mr. Johnson, had counsel chosen
to pursue it. Beyond that, there was no actual plea offer from the prosecutor pending. During
closing arguments, the parties hardly referred to Mr. Johnson’s testimony, focusing their closing
arguments on the defendant’s confession and the co-defendant’s testimony. The Court agrees with
the Magistrate Judge that there is no reasonable probability that disclosure of Mr. Johnson’s
unsuccessful plea negotiations concerning an unrelated charge would have led to a different result
in Petitioner’s trial.
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The Magistrate Judge carefully and thoroughly considered the record in the case and
properly applied the law to the facts. Nothing in the objections changes the analysis.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner may not
appeal in a habeas corpus case unless a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1). The Federal Rules of Appellate Procedure extend to district judges the
authority to issue certificates of appealability. FED. R. APP. P. 22(b); see also, Castro v. United
States, 310 F.3d 900, 901-02 (6th Cir. 2002) (the district judge “must issue or deny a [certificate
of appealability] if an applicant files a notice of appeal pursuant to the explicit requirements of
Federal Rule of Appellate Procedure 22(b)(1)”). However, a certificate of appealability may be
issued “only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
To obtain a certificate of appealability, Petitioner must demonstrate that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” MillerEl v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
While Petitioner is not required to establish that “some jurists would grant the petition for habeas
corpus,” he “must prove ‘something more than an absence of frivolity’ or the existence of mere
‘good faith.’” Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). The Court does not
believe that reasonable jurists would find its assessment of the constitutional claims debatable or
wrong. Petitioner has not made a substantial showing of the denial of a constitutional right.
Therefore, he is not entitled to a certificate of appealability.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 32) is approved and adopted as the opinion of the Court.
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IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus is
DENIED.
IT IS FURTHER ORDERED that Petitioner’s request for a Certificate of Appealability
is DENIED.

Dated:

September 26, 2012

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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