Lewis #156554 v. Smith
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 58 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:12-cv-1109
HON. ROBERT HOLMES BELL
MEMORANDUM OPINION AND ORDER
ADOPTING THE REPORT AND RECOMMENDATION
This is a habeas corpus petition brought by a state prisoner under 28 U.S.C. § 2254.
The matter was referred to Magistrate Judge Phillip Green, who issued a Report and
Recommendation (“R&R”) on December 6, 2016, recommending that this Court deny the
petition on its merits. (ECF No. 58.) The matter is before the Court on Petitioner’s
objections to the R&R. (ECF No. 61.)
This Court is required to make a de novo review upon the record of those portions of
the R&R to which specific objections have been made, and may accept, reject, or modify any
or all of the magistrate judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“[A] general
objection to a magistrate’s report, which fails to specify the issues of contention, does not
satisfy the requirement that an objection be filed. The objections must be clear enough to
enable the district court to discern those issues that are dispositive and contentious.”).
Petitioner objects to the Magistrate Judge’s conclusion that his petition is without
merit. In his objection, Petitioner raises the same arguments that he already set forth in his
petition and attaches his previously-filed brief in support as an exhibit. The Court has
conducted a de novo review of the record, and finds that the R&R accurately recites the facts
and correctly applies pertinent law. Thus, the Court agrees with and adopts the Magistrate
Petitioner also wrote a letter to the clerk, inquiring about his previously-filed motion
for an evidentiary hearing (ECF No. 4) that was denied by Magistrate Judge Scoville,
pending the Court’s plenary review of the case (ECF No. 7). (ECF No. 62.) An evidentiary
hearing is not mandatory. Section 2254(e)(2) provides:
[i]f the applicant has failed to develop the factual basis of a claim in State
court proceedings, the court shall not hold an evidentiary hearing on the claim
unless the application shows that-(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through
the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for the constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). “The strictures of § 2254(e)(2) do not apply, however, where an
applicant has not failed to develop—i.e., has been diligent in developing—the factual basis
of his claim in state court.” Robinson v. Howes, 663 F.3d 819, 824 (6th Cir. 2011) (citing
Williams v. Taylor, 529 U.S. 420, 432 (2000)). “Diligence for purposes of § 2254(e)(2)
depends upon ‘whether the prisoner made a reasonable attempt, in light of the information
available at the time, to investigate and pursue claims in the state court.’” Id. (quoting
McAdoo v. Elo, 365 F.3d 487, 500 (6th Cir. 2004) (internal quotation omitted)). Where an
applicant has been diligent, the decision to grant an evidentiary hearing is left to the district
court’s sound discretion. Id. (citing Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (noting
that AEDPA did not change the “basic rule” that the decision to grant an evidentiary hearing
is left to the discretion of the district courts, though AEDPA deference should guide the
Petitioner’s appellate counsel filed an amended motion for a new trial and/or Ginther
hearing on September 4, 2007. (ECF No. 5-1, PageID.218-24.) The trial court denied the
motion (ECF No. 13), and the Michigan Court of Appeals affirmed (ECF No. 50). Petitioner
also filed a motion for relief from judgment, raising claims of ineffective assistance of trial
counsel, which the trial court denied. (ECF Nos. 47, 5-2.) Because Petitioner has diligently
pursued the factual basis of his ineffective assistance of counsel claim, § 2254(e)(2) does not
Nonetheless, the Court must taken into account § 2254’s deferential standards when
deciding whether to grant an evidentiary hearing. See Schriro, 550 U.S. at 465. Thus, the
Court must consider “whether the hearing could enable an applicant to prove the petition’s
factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Id.
“[I]f the record refutes the applicant’s factual allegations or otherwise precludes habeas
relief, a district court is not required to hold an evidentiary hearing.” Id. at 465-66.
To succeed on an ineffective assistance of counsel claim, Petitioner must establish that
(1) trial counsel’s performance fell below an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for counsel’s deficient performance, the outcome
of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694
(1984). A reasonable probability is one that is “sufficient to undermine confidence in the
outcome.” Id. Movant bears the burden of proof for each prong, and the Court may dismiss
a claim of ineffective assistance of counsel if she fails to carry her burden of proof on either
one. Id. at 687, 697. When evaluating the Strickland prongs, the Court must afford
“tremendous deference to trial counsel’s decisions.” Campbell v. Coyle, 260 F.3d 531, 551
(6th Cir. 2001). There is a strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance, the purpose of which is “to protect lawyers from
having strategic decisions judged with ‘the distorting effect of hindsight.’” Boria v. Keane,
99 F.3d 492, 498 (6th Cir. 1996) (quoting Strickland, 466 U.S. at 689).
Petitioner’s requests an evidentiary hearing to have trial counsel explain the
following: (1) why he falsely told the court that no witnesses had been located by the
investigator; (2) whether he was aware that the tape evidence could be excluded and
constituted reversible error; (3) why he did not contact an independent tape-recording expert;
(4) why he chose not to interview or refresh the memory of witness Chris Cain; and (5) why
he chose not to pursue a proper arraignment and bail procedure. (ECF No. 4.)
On appeal in state court, Petitioner raised ineffective assistance of counsel arguments
relating to trial counsel’s strategy. The Michigan Court of Appeals held that Petitioner’s
claims lacked merit because there had been no showing that defense counsel’s trial strategy
was unsound. People v. Lewis, No. 277505, 2009 WL 1262863, at *4 (Mich. Ct. App. May
7, 2009). If the Court granted Petitioner’s request for an evidentiary hearing, it is highly
unlikely that it would enable Petitioner to prove the petition’s factual allegations and entitle
Petitioner to federal habeas relief under Strickland.
As to Petitioner’s first request, defense counsel indicated to the trial court that because
the case was five years old and involved witnesses who were transient by nature and
character, he had the witnesses and evidence that was available. (TT I, 16.) Petitioner’s
factual allegations are refuted by the trial court record. Further, it is unlikely that an
evidentiary hearing would produce evidence sufficient to satisfy Petitioner’s burden under
Strickland’s performance and prejudice prongs. Thus, the Court is not required to hold an
evidentiary hearing for this claim.
Likewise, as to Petitioner’s second and third requests for an evidentiary hearing,
Petitioner received a new trial because of the erroneous admission of the tape. (ECF No. 48.)
As such, an evidentiary hearing to inquire as to counsel’s strategy relating to the tape and
why an independent expert was not used would not entitle Petitioner to federal habeas relief.
This error was already remedied at the state-court level when he was granted a new trial, so
Petitioner cannot show prejudice as required by Strickland.
Similarly, at Petitioner’s second trial, Chris Cain’s preliminary examination testimony
was read into the record after the court conducted a due diligence hearing and found that the
witness was unavailable at the time of trial, had given testimony under oath, and was subject
to cross-examination. (ECF No. 58, PageID.529.) Because Chris Cain was unavailable for
the second trial, counsel could not “interview and/or refresh [the witness’s] memory” during
the trial. Counsel’s failure to do so is not deficient performance. See Strickland, 466 U.S.
at 689. Thus, an evidentiary hearing on this claim would not entitle Petitioner to federal
habeas relief under Strickland.
Moreover, an explanation as to why counsel waived arraignment would not entitle
Petitioner to federal habeas relief under Strickland.
The R&R thoroughly analyzed
Petitioner’s claim for failure to conduct a new arraignment for the second trial and held that
this claim was without merit. As such, even if Petitioner were granted an evidentiary
hearing, Petitioner cannot establish prejudice as required under Strickland. Thus, he is not
entitled to federal habeas relief on this claim.
In addition, the R&R discussed the merits of Petitioner’s ineffective assistance of
counsel claims. An evidentiary hearing is not likely to produce any facts to support
Petitioner’s claims, let alone to satisfy his burden under Strickland to prove counsel’s
deficient performance and prejudice. Therefore, the Court will deny Petitioner an evidentiary
IT IS HEREBY ORDERED that Petitioner’s objections to the R&R (ECF No. 61)
IT IS FURTHER ORDERED that the R&R (ECF No. 58) is APPROVED and
ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Petitioner’s motion for hearing (ECF No. 4) is
IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 28
U.S.C. § 2253(c). Reasonable jurists would not disagree with the Court’s conclusion that
Petitioner’s claims are meritless. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
Dated: January 12, 2017
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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