Gates #307542 v. Hoffner

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATION 35 : 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

ANTHONY CLIFFORD GATES,
Petitioner,
v.

Case No. 1:13-cv-715

BONITA J. HOFFNER,

HON. GORDON J. QUIST

Respondent.
/
ORDER ADOPTING
REPORT AND RECOMMENDATION
Petitioner, Anthony Clifford Gates, filed a petition for a writ of habeas corpus raising a
number of issues. On October 16, 2017, Magistrate Judge Ray Kent issued a thorough 38–page
Report and Recommendation (R & R) recommending that the Court deny Gates’ petition. (ECF
No. 35.)
Pursuant to Federal Rule of Civil Procedure 72(b), a petitioner “may serve and file specific
written objections” to the R & R, and the Court is to consider any proper objection. Local Rule
72.3(b) likewise requires that written objections “shall specifically identify the portions” of the R
& R to which a petitioner objects. Gates has filed Objections to the R & R as to all grounds. (ECF
No. 38.)

Pursuant to 28 U.S.C. § 636(b), upon receiving objections to a report and

recommendation, the district judge “shall make a de novo determination 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, Gates’ Objections, and the pertinent portions of the
record, the Court concludes that the R & R should be adopted.

The magistrate judge cited and quoted the proceedings and opinions of the pertinent
Michigan state courts. Those, and the relevant law need not be restated here. In his objection to
the R & R, Gates at times misstates the law or the record and fails to show why the R & R was
incorrect. His objections are adequately addressed in the R & R and the Court need not further
discuss each objection.
For a number of his arguments, Gates relies on a jury question from his criminal trial to
argue that, among other things, the jury did not believe that Gates committed a breaking and
entering. According to Gates, the jury asked, “PPO? If the victim initiates contact w/ the
defendant, does that ‘void’ the PPO.” (ECF No. 38 at PageID.1707-08.) Gates misconstrues this
question. The jury question is just that: a question. It is not a factual finding by the jury, it is not
a part of the verdict, it is merely a question the jury posed in the process of its deliberations that
ultimately resulted in Gates’ guilty verdicts for first-degree home invasion, felonious assault, and
aggravated stalking. The Court cannot peer into the black box of the jury room and make
assumptions contrary to the verdict.
Gates repeatedly states that “[t]he prosecutor conceded the element of breaking and
entering” or a variant of this phrase. (See, e.g., ECF No. 38 at PageID.1712.) It is not clear what
Gates means by this, but from his ensuing argument it appears he misunderstands what a lesser
included offense is. 1 A lesser included offense means that a less serious offense, here breaking
and entering, is included as an element of a greater offense, here first-degree home invasion.
People v. Klingbail, No. 332903, 2017 WL 3173013, at *3 (Mich. App. July 25, 2017). That is,
breaking and entering is not a separate theory, or an alternative to “entering without permission”
as Gates argues; breaking and entering is an element of the first-degree home invasion crime. The

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Petitioner admits that he “was confused by the analogy. [His attorney] did not ask for the lesser included offence.”
(ECF No. 38 at PageID.1715.)

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jury must find that the defendant committed the crime of breaking and entering before it can
conclude that he committed first-degree home invasion, which it did here when it issued a guilty
verdict. Therefore, Gates’ conviction of first degree home invasion innately includes breaking and
entering.
Gates also argues that the R & R was incorrect in finding that he has not shown that he was
wearing identifiable prison clothing. However, the substantive issue in this matter is not whether
he was wearing prison clothing, but rather whether his trial counsel should have objected. “[T]he
failure to make an objection to the court as to being tried in such clothes, for whatever reason, is
sufficient to negate the presence of compulsion necessary to establish a constitutional violation.”
Estelle v. Williams, 425 U.S. 501, 512-513, 96 S. Ct. 1691, 1697 (1976).
Pursuant to 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 Gates 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 Gates’ 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

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reasonable jurists could not find that this Court’s denial of Gates’ claims was debatable or wrong.
Thus, the Court will deny Gates a certificate of appealability. Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
issued October 16, 2017, (ECF No. 35) is APPROVED AND ADOPTED as the Opinion of this
Court, and Petitioner’s Objection (ECF No. 38) is OVERRULLED.
IT IS FURTHER ORDERED that Petitioner’s habeas corpus petition is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED by this
Court.
A separate judgment will issue.

Dated: November 28, 2017

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

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