Gates #307542 v. Hoffner

Filing 40

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 36 ; Petition for Writ of Habeas Corpus 1 is dismissed, and certificate of appealability is denied signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc) Modified text per chambers on 9/14/2017 (pjw).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTHONY CLIFFORD GATES,
Petitioner,
CASE NO. 1:13-CV-713
v.
HON. ROBERT J. JONKER
BONITA J. HOFFNER,
Respondent.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Kent’s Report and Recommendation (ECF
No. 36) and Petitioner’s Objections to Report and Recommendation (ECF No. 39). 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 the Magistrate Judge; the

Report and Recommendation itself; and Petitioner’s objections. After its review, the Court finds
the Magistrate Judge correctly concluded that Petitioner is not entitled to habeas corpus relief.
The Magistrate Judge recommends denial of Petitioner’s habeas petition. In his
objections, Petitioner primarily reiterates and expands upon arguments presented in his original
brief. Petitioner’s objections fail to deal in a persuasive way with the Magistrate Judge’s analysis.
The Magistrate Judge carefully and thoroughly considered the evidentiary record, the parties’
arguments, and the governing law. The Magistrate Judge properly analyzed Petitioner’s claims.
Nothing in Petitioner’s Objections changes the fundamental analysis that the claims raised in Issues
II, III, IV, V, VI, and VIII were procedurally defaulted and the claims raised in Issues I and VII were
non-cognizable and without merit. The Court concludes that Petitioner is not entitled to federal
habeas relief, for the very reasons detailed in the Report and Recommendation of the Magistrate
Judge.
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)). In this case,
Petitioner has not made a substantial showing of the denial of a constitutional right. Therefore, he
is not entitled to a certificate of appealability.
The Magistrate Judge properly concluded that Petitioner is not entitled to the habeas corpus
relief he seeks. Petitioner is not entitled to a certificate of appealability.
Accordingly, IT IS ORDERED that the Report and Recommendation of the Magistrate
Judge (ECF No. 36) is APPROVED AND ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that:
1.
2.

Dated:

Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1) is DISMISSED; and
Petitioner is DENIED a certificate of appealability.

September 14, 2017

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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