Washington #448561 v. Berghuis
ORDER ADOPTING REPORT AND RECOMMENDATION 56 re 49 : Petitioner's petition 1 , motion for reconsideration 56 , and certificate of appealability are DENIED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
WILLIE OTIS WASHINGTON,
Case No. 1:11-cv-1273
HON. GORDON J. QUIST
REPORT AND RECOMMENDATION AND
DENYING MOTION FOR RECONSIDERATION
On August 9, 2017, Magistrate Judge Kent issued a Report and Recommendation (R & R)
recommending that the Court deny Petitioner’s petition for writ of habeas corpus. (ECF No. 49.)
The Court has reviewed the R & R recommending that the petition be denied. The R & R was
duly served on Petitioner on August 9, 2017. On August 21, 2017, Petitioner filed a motion for an
extension of time to file a response to the R& R. The magistrate judge ordered that this motion be
denied on August, 24, 2017, however, this Court reversed the magistrate judge on August 13, 2017,
granting Petitioner fourteen additional days to respond to the R & R. (ECF No. 55). Petitioner
submitted an objection on September 26, 2017, objecting to the magistrate judge’s findings, again
arguing that he suffered from ineffective assistance of counsel at trial and that the prosecutor
committed misconduct. (ECF No. 59.)
Pursuant to 28 U.S.C. § 636(b), upon receiving objections to a report and recommendation,
the district judge “shall make a de novo determinations of those portions of the report or specified
proposed findings or recommendations to which objection is made.” After conducting a de novo
review of the R & R, Petitioner’s Objections, and the pertinent portions of the record, the Court
concludes that the R & R should be adopted. In his objection, Petitioner makes meritless assertions
that are adequately addressed, and directly contradicted, by the R & R.
First, the Court concurs with the magistrate judge’s determination that there is no basis to
argue ineffective assistance of counsel due to the failure to request a specific jury instruction
regarding unanimity. The trial judge provided a general instruction on jury unanimity, and
explained the individual determinations the jurors were required to make on their own “individual
considered judgment.” There was no reason for Petitioner’s trial counsel to object to these
instructions. Petitioner’s claims that his counsel “was not competent enough to ask for the bare
minimum” and that “[t]he jury was left to potentially compromise as to the counts and incidents
alleged in this case” are entirely baseless. (ECF No. 59 at PageID.579.)
Second, the Court concurs with the magistrate judge’s determination that there is no basis
to argue that prosecutorial misconduct rendered Petitioner’s trial unfair. Petitioner is correct that
“[c]redibility determinations are left for the Jury [sic] to decide.” (Id. at PageID.582.) When
Petitioner testified that the government witnesses were lying, he called their credibility into
question; this undeniably opened the door for the prosecutor to both cross-examine Petitioner and
address his testimony on the matter of the witnesses’ credibility. That is the nature of a jury trial.
Petitioner’s allegations that this made “a mockery of the defense” and made him “a witness against
himself” are patently false and meritless. (Id.) Accordingly, it was not ineffective assistance of
counsel to fail to object to the prosecutor’s related comments.
Therefore, the Court will overrule Petitioner’s Objection and adopt the R & R as the
opinion of the Court.
Petitioner also filed a motion for reconsideration on September, 18, 2017. (ECF No. 65.)
He seeks reconsideration of an order docketed as No. 7 from Case No. 1:14-cv-447 dismissing a
petition Petitioner had intended to file as an amended complaint in the instant case. He also seeks
reconsideration of the magistrate judge’s January 18, 2017, order denying his motion to amend his
habeas petition. (ECF No. 46.)
A party seeking reconsideration of a court’s ruling bears a heavy burden. To prevail on a
motion for reconsideration, the movant must “not only demonstrate a palpable defect by which the
Court and the parties have been misled, but [must] also show that a different disposition of the
case must result from a correction thereof.” See W.D. Mich. LCivR 7.4(a). Petitioner fails to
show a palpable defect in the Court’s prior order.
Moreover, under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a
certificate of appealability should be granted.
A certificate should issue if Petitioner has
demonstrated a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Sixth Circuit has disapproved issuance of blanket denials of a certificate of appealability.
Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). Rather, the district court must “engage in a
reasoned assessment of each claim” to determine whether a certificate is warranted. Id. at 467.
Each issue must be considered under the standards set forth by the Supreme Court in Slack v.
McDaniel, 529 U.S. 473, 120 S. Ct. 1595 (2000); Murphy, 263 F.3d at 467. Therefore, the Court
has considered Petitioner’s claims, including his objections, under the Slack standard.
Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to warrant a grant of the certificate, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” For the reasons stated above, the Court finds that
reasonable jurists could not find that this Court’s denial of Petitioner’s claims were debatable or
wrong. Thus, the Court will deny Petitioner a certificate of appealability. Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
issued August 9, 2017, (ECF No. 49) is APPROVED AND ADOPTED as the Opinion of this
Court, and Petitioner’s Objection (ECF No. 59) is OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s habeas corpus petition (ECF No. 1) is
IT IS FURTHER ORDERED that Petitioner’s motion for reconsideration (ECF No. 56)
IT IS FURTHER ORDERED that a certificate of appealability is DENIED by this
A separate judgment will issue.
Dated: October 4, 2017
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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