Dawson #239029 v. Burt

Filing 42

ORDER ADOPTING REPORT AND RECOMMENDATION 39 : 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

TERRANCE DAWSON,
Petitioner,
v.

Case No. 1:14-cv-115

SHERRY BURT,

HON. GORDON J. QUIST

Respondent.
/
ORDER ADOPTING
REPORT AND RECOMMENDATION
Petitioner, Terrance Dawson, filed a petition for habeas corpus raising seven grounds for
relief: (1) sufficiency of evidence; (2) right to face-to-face confrontation; (3) jury waiver; (4) right
to confront accusser [sic]; (5) denial of due process; (6) denial of effective assistance of trial and
appellate counsel; and (7) prosecutor failed to correct perjury. On August 1, 2017, Magistrate
Judge Ray Kent issued a 37 page Report and Recommendation (R & R) recommending that the
Court deny Dawson’s petition for writ of habeas corpus. (ECF No. 39 at PageID.1935.)
The magistrate judge concluded that the claims related to the right to face-to-face
confrontation, effective assistance of trial counsel, and the prosecutor’s failure to correct perjury
were procedurally defaulted, and Petitioner’s other grounds were without merit. Petitioner filed
an objection to the R & R on September 5, 2017. (ECF No. 40 at PageID.1976.)
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.” Petitioner’s objections do
not address all of the magistrate judge’s findings and recommendations, and further review of

those objections is therefore deemed waived. See, e.g., Thrower v. Montgomery, 50 F. App’x 262,
263-64 (6th Cir. 2002). For example, despite the clear demarcation of the two in the R & R,
Petitioner conflates the R & R’s findings regarding his ineffective assistance of trial counsel claim
with his ineffective assistance of appellate counsel claim.. Petitioner also has failed to offer any
evidence that many of his claims were not procedurally defaulted, i.e., proof that he had indeed
pursued certain claims through the state court system.
Although Petitioner’s objections are at times difficult to understand, it does not appear that
he addressed the first three grounds of the magistrate judge’s recommendation, i.e., the sufficiency
of the evidence, the right to face-to-face confrontation of witnesses, and his waiver of a jury trial.
Therefore, these claims are also deemed waived. The R & R also found that Petitioner failed to
raise a few of his claims in the state courts, and Petitioner has merely asserted that that is not the
case, without citing support. Regardless, the Court has reviewed the R & R on these issues and
finds no error in its conclusions.
Petitioner objects to the R & R’s conclusion that “the state court’s decision to admit the
preliminary examination testimony of [one of Petitioner’s victims] was neither contrary to nor an
unreasonable application of clearly established Supreme Court precedent.” (ECF No. 39 at
PageID.1965.) Petitioner first argues that the preliminary examination testimony should have been
excluded because its purpose was “merely to determine probable cause to proceed on the charged
crime.” A different standard of proof is no reason for Petitioner to have had a different opportunity
and motive to cross-examine the witness—the facts relating to guilt and innocence are critical at
all phases of a criminal case, including a preliminary examination. Additionally, as the R & R
notes, defense counsel effectively used the opportunity to cross-examine the witness by addressing
weaknesses in the witness’s testimony. Among other things, this confrontation assists defense

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counsel’s preparation for trial. Petitioner also argues that he had no opportunity to examine the
witness regarding the timing of the offense, but fails to produce or explain the evidence he alleges
is exculpatory.
Petitioner makes repeated vague objections related to a supposed error in the trial
transcript. As noted in the R & R, “[c]onclusory allegations, without evidentiary support, do not
provide a basis for habeas relief.” (ECF No. 39 at PageID.1969) (citing Cross v. Stovall, 238 F.
App’x 32, 39-40 (6th Cir. 2007); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998)). The R &
R adequately addressed his due process claims related to the transcript claim, noting that
Petitioner’s allegations are unsupported.
The R & R noted that Petitioner failed to raise his ineffective assistance of trial counsel
claim in state court, therefore making it procedurally barred. Petitioner does not argue cause for
excusing this default, and, therefore, cannot be a reason for setting aside the verdict. See Engle v.
Isaac, 456 U.S. 107, 134 n.43, 102 S. Ct. 1558, 1574 n.43 (1982). That is, Petitioner’s objections
do not overcome the state court’s holding that his claim of ineffective assistance of appellate
counsel was unsupported and meritless.
The R & R held that Petitioner’s claim of prosecutorial misconduct fails because at no time
did Petitioner actually argue that the prosecutor suborned the alleged perjury.

Petitioner’s

objection is not pertinent and simply states that the R & R “resulted in an unreasonable
determination based on the facts in light of the evidence presented in state court proceedings.”
(ECF No. 40 at PageID.1981.) The claim is also procedurally defaulted, a bar that Petitioner has
not overcome.
After conducting a de novo review of the R & R, Petitioner’s objections, and the pertinent
portions of the record, the Court concludes that the R & R should be adopted.

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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 Petitioner 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
Petitioner’s 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
reasonable jurists could not find that this Court’s denial of Petitioner’s claims was debatable or
wrong. Thus, the Court will deny Petitioner a certificate of appealability. Therefore,
IT IS HEREBY ORDERED that the magistrate judge’s Report and Recommendation
issued August 18, 2017 (ECF No. 39) is APPROVED AND ADOPTED as the Opinion of this
Court, and Petitioner’s Objection (ECF No. 40) 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.
A separate judgment will issue.
Dated: October 19, 2017

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

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