Van Durmen #189744 v. Howes

Filing 30

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 24 ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTHONY VAN DURMEN,
Petitioner,
CASE NO. 1:10-CV-157
v.
HON. ROBERT J. JONKER
CAROL HOWES,
Respondent.
____________________________/
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge’s Report and Recommendation (docket # 24)
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.
Mr. Van Durmen’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.
Mr. VanGeison has not made a substantial showing of the denial of a constitutional right. Therefore,
he is not entitled to a certificate of appealability.
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ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 24) is approved and adopted as the opinion of the Court.
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus is
DISMISSED without prejudice for lack of exhaustion. Petitioner may either pursue the unexhausted
claims in state court or dismiss the unexhausted claims following the procedures set forth in the
Report and Recommendation.
IT IS FURTHER ORDERED that Petitioner’s request for a Certificate of Appealability
is DENIED.
/s/Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
Dated: March 29, 2013

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