Swain #230272 v. Harry

Filing 31

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 28 ; 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

ADRIAN RYANEN SWAIN,
Petitioner,
CASE NO. 1:09-CV-865
v.
HON. ROBERT J. JONKER
SHIRLEE A. HARRY,
Respondent.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge’s Report and Recommendation (docket #
28) and Petitioner’s Objections to Report and Recommendation (docket # 29). 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. After its
review, the Court finds the Report and Recommendation to be both factually sound and legally
correct. Petitioner’s objections in essence simply reassert the principal claims raised in his
habeas petition. The Report and Recommendation fully addresses those claims. The Magistrate
Judge carefully and thoroughly considered the record in the case and properly applied the law to
the facts. Nothing in the objection 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.” Miller-El 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 # 29) is approved and adopted as the opinion of the Court.
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 18, 2012

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