Haak #778266 v. Smith

Filing 39

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 37 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PETERSON TODD HAAK,
Petitioner,

Case No. 1:13-cv-235

v.

HON. JANET T. NEFF

WILLIE SMITH,
Respondent.
_______________________________/

OPINION AND ORDER
This is a habeas corpus petition filed pursuant to 28 U.S.C. §2254. The matter was referred
to the Magistrate Judge, who issued a Report and Recommendation (R&R) recommending that this
Court deny the petition. The matter is presently before the Court on Petitioner’s objections to the
Report and Recommendation. Respondent did not file a response to Petitioner’s objections. In
accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has performed de
novo consideration of those portions of the Report and Recommendation to which objections have
been made. The Court denies the objections and issues this Opinion and Order. The Court will also
issue a Judgment in this § 2254 proceeding. See Gillis v. United States, 729 F.3d 641, 643 (6th Cir.
2013) (requiring a separate judgment in habeas proceedings).
I. Objections
As a threshold matter, Petitioner objects to the manner in which the Magistrate Judge
summarized certain testimony in the “Background” section of the Report and Recommendation
because of the “omission of important details or inaccuracies in the reporting” (Pet’r Obj., Dkt 38

at PageID.317). However, Petitioner does not indicate how the purported omissions or inaccuracies
would alone lead to a different disposition. Therefore, Petitioner’s objection is denied.
Petitioner makes five substantive objections, as follows. First, Petitioner objects to the
Magistrate Judge’s conclusion that four instances of prosecutorial misconduct were procedurally
defaulted (Pet’r Obj., Dkt 38 at PageID.321). According to Petitioner, the four instances—(1) the
denigration of the insanity defense, (2) the denigration of defense experts, (3) arguments contrary
to the evidence, and (4) improper expressions of personal opinion—were each “presented to and
ruled upon by the state courts and thus not procedurally defaulted” (id. at PageID.322).
Petitioner’s objection lacks merit.
The Michigan court of appeals determined, consistent with Petitioner’s concession, that
Petitioner did not properly preserve the four issues below. Petitioner’s argument against default
depends on the fact that the court of appeals nonetheless reviewed the issues for plain error. The
Magistrate Judge properly rejected Petitioner’s argument, concluding that “[t]he fact that the
Michigan Court of Appeals reviewed Petitioner’s unpreserved claims for plain error does not
constitute an adjudication on the merits which can overcome procedural default” (R&R, Dkt 37 at
PageID.297). As set forth in the Report and Recommendation, the Magistrate Judge’s conclusion
was based on a widely accepted body of precedent issued by the Sixth Circuit, see, e.g., Frazier v.
Jenkins, 770 F.3d 485, 496 n.5 (6th Cir. 2014) (“[w]e have repeatedly held that plain-error review
is not equivalent to adjudication on the merits”) (citing cases therein), and Petitioner’s argument in
favor of a different conclusion does not demonstrate legal error by the Magistrate Judge. The
objection is denied.

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Second, Petitioner objects to the Magistrate Judge’s conclusion that his claim challenging
the sufficiency of the evidence of legal insanity is not a cognizable claim in a federal habeas
proceeding (Pet’r Obj., Dkt 38 at PageID.326). Petitioner argues that the Magistrate Judge, in so
concluding, “overlooks or ignores the holding and reasoning of Perez v. Cain, 529 F.3d 588 (5th Cir.
2008)” (id.). Petitioner further asserts that there was overwhelming evidence that he was legally
insane at the time of the commission of the offenses due to involuntary intoxication caused by the
unknowing ingestion of chloral hydrate (id.).
Again, the Magistrate Judge relied on precedent in the Sixth Circuit interpreting Michigan
law for the proposition that the due process guarantee extends only to facts needed to establish the
elements of the crime, not to the state’s burden to prove the absence of an affirmative defense (R&R,
Dkt 37 at PageID.304-305). The decision in Perez did not address Michigan law and does not
undermine this precedent. Accordingly, this objection is also properly denied.
Third, Petitioner objects to the Magistrate Judge’s resolution of his argument that he cannot
be guilty but mentally ill where “there was no evidence of mental illness alone in the state court
proceedings” (Pet’r Obj., Dkt 38 at Page ID.329). According to Petitioner, he is either guilty, or not
guilty by reason of insanity (id.).
The Magistrate Judge determined that there was more than sufficient evidence for a rational
juror to conclude that Petitioner’s inability to appreciate the nature of his conduct or conform his
conduct to the requirements of the law was produced by “Petitioner’s excessive—and
voluntary—intake of alcohol rather than from an allegedly involuntary ingestion of chloral hydrate”
(R&R, Dkt 37 at PageID.307). While Petitioner asserts that the Magistrate Judge does not identify
any “expert testimony or proof that alcohol was the cause,” the Magistrate Judge ably described the
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testimony of Drs. Eisenga, Atchison, Walker and Clark on the import of Petitioner’s alcohol
consumption on the night in question (id. at PageID.307-308). This objection is therefore also
properly denied.
Fourth, Petitioner similarly objects to the Magistrate Judge’s conclusion that “[t]o the extent
Petitioner was mentally ill, but not legally insane, such does not preclude a finding that Petitioner
acted with the requisite intent” (Pet’r Obj., Dkt 38 at PageID.329; R&R, Dkt 37 at PageID.308,
citing Lang v. Warren, 2015 WL 3837796, at *6 (E.D. Mich., June 22, 2015) (“under Michigan law
evidence of mental incapacity short of insanity cannot be used to avoid or reduce criminal
responsibility by negating specific intent”)). Petitioner opines that in light of the “abundant evidence
... that [his] involuntary intoxication led to his legal insanity,” he could not have been shown to have
“intent” to commit any of the alleged offenses (Pet’r Obj., Dkt 38 at PageID.330-331). However,
Petitioner’s argument demonstrates only his disagreement with the Magistrate Judge’s ultimate
conclusion. He fails to demonstrate any error in the Magistrate Judge’s analysis. Accordingly, this
objection is denied.
Last, Petitioner objects to the Magistrate Judge’s denial of his evidentiary claim about the
qualifications of prosecution witness William Atchison, Ph.D. (Pet’r Obj., Dkt 38 at PageID.331).
According to Petitioner, both the state trial and appellate courts failed to apply, or misapplied, the
standards established in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) (id.).
The Magistrate Judge concluded that Petitioner’s evidentiary claim raises no issue upon
which habeas relief may be granted where (a) the denial of the claim was neither contrary to, nor
involved an unreasonable application of, clearly established federal law; and (b) the decision was
not based on an unreasonable determination of the facts in light of the evidence presented (R&R, Dkt
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37 at PageID.313). In his objections, Petitioner does not address the Magistrate Judge’s conclusion
that the claim is not cognizable in a federal habeas proceeding. Petitioner’s argument, that the
Magistrate Judge “does not address” the “deficiency” in Dr. Atchison’s competency and
qualifications, implicates only the Magistrate Judge’s second conclusion. In any event, Petitioner’s
argument lacks merit. The Magistrate Judge did not fail to address Petitioner’s challenges to Dr.
Atchison’s competency and qualifications as an expert. Rather, the Magistrate Judge, who excerpted
the Michigan court of appeals’ description of Dr. Atchison’s educational and professional
background, concluded that the determination by the trial court that Dr. Atchison was qualified to
offer expert testimony was “reasonable and consistent with Michigan Rule of Evidence 702” (id.).
Petitioner’s contrary conclusion does not reveal any error in the Magistrate Judge’s analysis.
Therefore, the objection is properly denied.
II. Certificate of Appealability
Having determined that Petitioner’s objections lack merit, the Court must further determine
pursuant to 28 U.S.C. § 2253(c) whether to grant a certificate of appealability (COA) as to the issues
raised. See RULES GOVERNING § 2254 CASES, Rule 11 (requiring the district court to “issue or deny
a certificate of appealability when it enters a final order”). The Court must review the issues
individually. Slack v. McDaniel, 529 U.S. 473 (2000); Murphy v. Ohio, 263 F.3d 466, 466-67 (6th
Cir. 2001).
“When the district court denies a habeas petition on procedural grounds without reaching the
prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least,
that jurists of reason would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable whether the district court
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was correct in its procedural ruling.” Slack, 529 U.S. at 484. “Where a plain procedural bar is
present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could
not conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.” Id. Upon review, this Court finds that reasonable jurists would not
find the Court’s procedural ruling debatable.
“Where a district court has rejected the constitutional claims on the merits, the showing
required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”
Slack, 529 U.S. at 484. Upon review, this Court finds that reasonable jurists would not find the
Court’s assessment of Petitioner’s constitutional claims debatable or wrong. In sum, a certificate
of appealability will be denied as to each issue asserted. Accordingly:
IT IS HEREBY ORDERED that the Objections (Dkt 38) are DENIED and the Report and
Recommendation of the Magistrate Judge (Dkt 37) is APPROVED and ADOPTED as the Opinion
of the Court.
IT IS FURTHER ORDERED that the petition for habeas corpus relief (Dkt 1) is DENIED
for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c) is DENIED as to each issue asserted.
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Dated: March ___, 2016

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

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