Sellers #712217 v. Prelesnik

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATION 28 : Petitioner's petition 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
SOUTHERN DIVISION

MARK ALLEN SELLERS,
Petitioner,

Case No. 1:13-CV-24

v.

HON. GORDON J. QUIST

KENNETH McKEE,
Respondent.
/

ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner, Mark Allen Sellers, filed a petition for habeas corpus asserting claims based on
ineffective assistance of trial and appellate counsel. On February 22, 2016, Magistrate Judge Ellen
S. Carmody issued a Report and Recommendation (R & R) in which she recommended that the
Court deny the petition. Sellers filed objections to the R & R. After conducting a de novo review
of the R & R, the objections, and the pertinent portions of the record, the Court concludes that the
R & R should be adopted as the Opinion of the Court.
Petitioner objects to the magistrate judge’s recommendation that the Court reject Petitioner’s
ineffective assistance claim based on the failure to present an alibi defense. Trial counsel’s affidavit
makes clear that he thoroughly investigated and considered Petitioner’s alibi defense before deciding
not to pursue such a defense. The state court concluded that counsel’s decision to reject the alibi
defense was an “objectively reasonable strategy.”

Although Petitioner disagrees with that

conclusion, he has provided no basis to conclude that it was contrary to, or involved an unreasonable
application of, clearly established federal law. Moreover, it was not based on an unreasonable
determination of the facts.

Petitioner also objects to the magistrate judge’s conclusion regarding Petitioner’s claim that
counsel was ineffective for failing to object to the amendment of the charge against Petitioner. As
the state court’s decision made clear, amending the dates of the charged offense did not prejudice
Petitioner because the dates of the offense were not relevant. Rather, the relevant issue was whether
Petitioner had stayed home with the children while his wife was away—a fact that Petitioner had
already admitted to police. Accordingly, the state court’s decision was not contrary to, nor did it
involve an unreasonable application of, clearly established federal law. Moreover, it was not based
on an unreasonable determination of the facts.
Petitioner cannot establish that appellate counsel was ineffective for failing to raise claims
based on ineffective assistance of trial counsel. Given this Court’s conclusion that such claims are
without merit, Petitioner could not have been prejudiced by counsel’s failure to raise such claims
on appeal.
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 a petitioner has demonstrated “a
substantial showing of a denial of a constitutional right.” Id. 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. 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 dismissal of Petitioner’s
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claims was debatable or wrong. Thus, the Court will deny Petitioner a certificate of appealability.
Therefore,
IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 28) is
ADOPTED as the Opinion of the Court, and Petitioner’s Petition (ECF No. 1) is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Objection to the R & R (ECF No. 29) is
OVERRULED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
This case is concluded.
A separate judgment will issue.

Dated: March 11, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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