Harris #781877 v. Burt

Filing 25

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 23 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Marquise Lesjuan Harris,
Petitioner,
-vSherry Burt,
Respondent.

)
)
)
)
)
)
)
)

No. 1:14-cv-852
HONORABLE PAUL L. MALONEY

OPINION AND ORDER
This matter is before the Court on Petitioner Marquise Harris’ objections to the
Report and Recommendation (R&R) issued by Magistrate Judge Phillip J. Green. (ECF No.
24.) On August 12, 2014, Petitioner filed a motion under 28 U.S.C. § 2254 seeking relief
from a final state court decision (ECF No. 1); with leave of the Court, he amended his
petition on October 15, 2014. (ECF No. 6.) The State of Michigan, through Burt, filed its
response on June 16, 2015. (ECF No. 11.) The Court referred this matter to the Magistrate
Judge for an R&R on the merits of the petition. The Magistrate Judge issued an R&R on May
4, 2017, recommending that the Court deny the petition. (ECF No. 23.) Petitioner filed the
instant objections on May 22, 2017. (ECF No. 24.)
I.

Finding of Facts
Petitioner takes no issue with the facts that the Magistrate Judge lays out. Since Petitioner

only lodges objections against the legal findings of the Magistrate Judge, the Court ADOPTS the
finding of facts contained in the Magistrate Judge’s report. (ECF No. 23.)

1

II.

Legal Framework
With respect to a dispositive motion, a magistrate judge issues a report and

recommendation, rather than an order. After being served with a report and
recommendation (R&R) issued by a magistrate judge, a party has fourteen days to file written
objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). A district court judge reviews de novo the portions of the R&R to which
objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only those
objections that are specific are entitled to a de novo review under the statute. Mira v.

Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district court need not
provide de novo review where the objections are frivolous, conclusive or too general because
the burden is on the parties to “pinpoint those portions of the magistrate’s report that the
district court must specifically consider”). Failure to file an objection results in a waiver of
the issue and the issue cannot be appealed. United States v. Sullivan, 431 F.3d 976, 984 (6th
Cir. 2005); see also Thomas v. Arn, 474 U.S. 140, 155 (upholding the Sixth Circuit’s
practice). The district court judge may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b).
III.

Analysis and Legal Objections
Petitioner asserts that he is entitled to relief on several grounds: (1) insufficient

evidence to support his conviction, (2) violation of his rights under the Confrontation Clause,
(3) violation of due process by prosecutorial misconduct in using “bad acts” evidence, (4)
ineffective assistance of defense counsel, and (5) ineffective assistance of appellate counsel.

2

(ECF No. 6.) After examining each issue on the merits, the Magistrate Judge found all of
Petitioner’s arguments lacking and recommended that the Court deny his petition. (ECF No.
23.) Petitioner now lodges objections against the Magistrate Judge’s recommendation as to
first and second claims. (ECF No. 24.)
As an initial matter, since Petitioner does not raise any objections to the Magistrate
Judge’s recommendation as to claims three, four, and five, the Court ADOPTS the
Magistrate Judge’s recommendation as to those claims.
A.

Insufficient Evidence to Support a Conviction

First, Petitioner asserts that there was insufficient evidence presented at trial to support
his conviction. (ECF No. 6 at PageID.109.) In Jackson v. Virginia, the Supreme Court
established that in order for a habeas petitioner to succeed on a claim of insufficient evidence,
they must show that “after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could [not] have found the essential elements of the crime beyond a
reasonable doubt.” 443 U.S. 307, 319 (1979) (citing Johnson v. Louisiana, 406 U.S. 356, 360
(1972)) (emphasis in original). Further, as the Michigan Court of Appeals has previously
ruled on this claim, the question before the Court is not whether Petitioner is entitled to
relief under the Jackson standard, but rather if the state court’s decision resulted in an
unreasonable application of Jackson. See Eady v. Morgan, 515 F.3d 587, 594–95 (6th Cir.
2008).
After reviewing the record, the Magistrate Judge found that the Michigan Court of
Appeals had reasonably applied the Jackson standard when it determined that there was
sufficient evidence to support Petitioner’s conviction. (ECF No. 23 at PageID.681.)

3

Petitioner objects to this finding, conceding that the Magistrate Judge applied the correct
standard but arguing that the Michigan Court of Appeals unreasonably applied the Jackson
standard because the evidence that supported his conviction was not “properly before the
jury.” (ECF No 24 at PageID.694–96.) Petitioner asserts that the prosecution read the
“perjured testimony” of a co-defendant—who, allegedly, later changed his story before trial
and was not allowed to testify—to the jury. (Id.) This argument, however, does not serve to
challenge the finding that the evidence was sufficient to support a conviction; rather, it
presents a whole new claim—that the trial court erroneously allowed the alleged false

testimony to be presented to the jury in the first place. As such, this argument is not properly
before the Court, as a Petitioner may not raise a new claim for the first time in an objection
to a magistrate judge’s R&R. See, e.g., Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535
(6th Cir. 2001); Murr v. United States, 200 F.3d 895, 902 (6th Cir.2000) (parties may not
raise new arguments or issues at the district court stage that were not presented to the
Magistrate Judge). Accordingly, Petitioner’s first objection must be OVERRULED.
B.

Violation of Rights Under the Confrontation Clause

Petitioner next claims that his rights under the Sixth Amendment Confrontation
Clause were violated because the preliminary-examination testimony of his co-defendant
(and brother) was allowed to be read to the jury without the co-defendant being called to
testify and be subject to cross-examination at trial. (ECF No. 6 at PageID.110–11.) The
Supreme Court has held that the right to confront and cross-examine witnesses applies to
both statements made in the course of a trial as well as out-of-court statements of witnesses
being used by the prosecution against a defendant, regardless of their admissibility under

4

rules of evidence. See Crawford v. Washington, 541 U.S. 36, 51 (2004). In Crawford, the
Supreme Court further established that where a witness is unavailable and the defendant had
a prior opportunity to cross-examine the witness, admitting the out-of-court testimonial
evidence would not violate the Confrontation Clause. See id. at 68; Davis v. Washington,
547 U.S. 813, 821 (2006) (“[W]e held that [the Confrontation Clause] bars ‘admission of
testimonial statements of a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-examination.’”).
After reviewing the record, the Magistrate Judge found that the state trial court’s
determination that Petitioner had an adequate opportunity to cross-examine the witness at
the preliminary-examination was not contrary to clearly established federal law. (ECF No. 23
at PageID.683.) Petitioner objects to this finding, arguing that the witness was “only
unavailable by way of the wilfull [sic] fraudulent and deceptive acts of the prosecution who
knew that he had perjured himself in the preliminary hearing.” (ECF No. 24 at PageID.699.)
Looking to the record, Petitioner’s co-defendant (and brother) refused to testify of his own
accord. (ECF No. 12-6 at PageID.275–76.) After turning hostile during his testimony at the
preliminary-examination (ECF No. 12-2 at PageID.218), Petitioner’s brother was
transported to the courthouse to testify at trial; however, once there, he indicated that he
would likely perjure himself if placed on the stand. (Id.) The witness’s refusal to testify, along
with his status as a co-defendant, sufficed to establish that, at a minimum, a state court’s
conclusion that the witness was unavailable was not contrary to clearly established law. See,

e.g., Heisler v. Caruso, 165 F.3d 27, at *4 (6th Cir. Sep. 4, 1998) (unpublished) (“The
invocation of the Fifth Amendment privilege renders a witness ‘unavailable’ to testify.’”);

5

Green v. Maclaren, 2017 WL 372009 (E.D. Mich. Jan. 26, 2017) (citing United States v.
Bourjaily, 781 F.3d 539, 544 (6th Cir. 1986)) (“When a witness refuses to testify, he or she
is unavailable whether the refusal to testify is based upon privilege or is punishable by
contempt.”).
The trial court also inquired if Petitioner’s counsel had been present at the
preliminary-examination, to which he responded affirmatively. (Id.) As such, the trial court’s
determination that the witness was unavailable and that counsel had an adequate opportunity
to cross-examine the witness was based soundly on facts contained in the record, and was not
contrary to clearly established federal law. See Crawford, 541 U.S. at 51; Calif. v. Green, 399
U.S. 149, 151 (1970).
Therefore, Petitioner’s second objection must be OVERRULED.
IV.

Conclusion
In short, Petitioner has failed to show that the state courts’ actions were contrary to

clearly established federal law. Accordingly, Petitioner’s objections to the Magistrate Judge’s
recommendation will be OVERRULED, and his petition will be DENIED.
Certificate of Appealability
The Court must determine whether a certificate of appealability should be granted.
28 U.S.C. § 2253(c)(2). 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 Court
of Appeals has disapproved issuance of blanket denials of a certificate of appealability.

Murphy v. Ohio, 263 F.3d 466 (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

6

467. Each issue must be considered under the standards set forth by the Supreme Court in

Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467.
Under Slack, 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.” 529 U.S. at 484. “A petitioner satisfies this standard by demonstrating
that . . . jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this
standard, the Court may not conduct a full merits review, but must limit its examination to a
threshold inquiry into the underlying merit of petitioner’s claims. Id.
Examining petitioner’s claims under the standard in Slack, reasonable jurists would
not conclude the Court’s assessment of petitioner’s claims to be debatable or wrong.
Accordingly, Petitioner’s certificate of appealability is DENIED.
ORDER
For the reasons discussed in the accompanying opinion, Petitioner’s objections to the
Magistrate Judge’s R&R are OVERRULED, the Magistrates Judge’s R&R is ADOPTED in
its entirety (ECF No. 23), and the amended petition is DENIED. (ECF No. 6.)
IT IS SO ORDERD.
Date: July 27, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

7