Terpening #859537 v. Berghuis

Filing 48

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 44 ; denying objections 47 ; signed by Judge Janet T. Neff (kml)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL AARON TERPENING,
Petitioner,
Case No. 1:15-cv-265
v.
HON. JANET T. NEFF
SARAH SCHROEDER,
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 (1) deny the habeas petition; (2) deny Petitioner’s request for an evidentiary hearing and
additional discovery; (3) deny a certificate of appealability; (4) not certify that an appeal would
not be taken in good faith. The matter is presently before the Court on Petitioner’s objections to
the R & R. 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 R & R 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).
Petitioner first argues that the Magistrate Judge erred in determining that his ineffective
assistance of counsel claims related to the nolo contendere plea lacked merit. Petitioner continues
to argue that he rejected the plea offer because his defense attorney gave him incorrect legal advice
and told him that a nolo contendere plea was unavailable. Petitioner’s argument misses the point.

There is nothing in the record to suggest that a nolo contendere plea offer was ever made. To the
contrary, the plea offer required Petitioner to plead guilty. The Court agrees with the Magistrate
Judge that “[t]he trial court’s determination that [the defense attorney’s] advice concerning the
effect of a nolo contendere plea had no bearing on Petitioner’s decision to reject the actual plea
offer is well supported” (ECF No. 44 at PageID.4291). Thus, Petitioner cannot show prejudice,
and the trial court’s rejection of the ineffective assistance claim is not contrary to, or an
unreasonable application of, Strickland and Lafler. Similarly, Petitioner’s ineffective assistance of
appellate counsel claim concerning appellate counsel’s failure to obtain the transcript of the plea
hearing and to raise the plea issue on appeal fails because the underlying argument is meritless.
Petitioner next argues that the Magistrate Judge erred in determining that the Court lacked
jurisdiction over the claims related to the admission of Clayton Waidelich’s testimony at the
preliminary examination. The Court discerns no error. It is undisputed that Petitioner had
completed the sentence on the CSC IV charge concerning Waidelich at the time Petitioner filed
his habeas petition. Because Petitioner was not in custody under this conviction at the time the
petition was filed, the Court lacks jurisdiction to grant habeas relief on this claim. See Maleng v.
Cook, 490 U.S. 488, 490-91 (1989).
Petitioner next argues that the Magistrate Judge erred in determining that Petitioner’s
claims related to the exclusion of B.H.’s prior false accusations lacked merit. He appears to argue
that the state trial court never addressed his confrontation clause claim despite it being clearly
raised. However, as cited by the Magistrate Judge, the state trial court expressly stated, “[t]he trial
court did not precluded (sic) the defense from confronting the witness about his report and
therefore did not violate the defendant’s right to confront his accuser” (ECF No. 44 at
PageID.4296-4297 citing ECF No. 43-3 at PageID.4278). Furthermore, the Court agrees that the

2

trial court’s “decision was well within the wide latitude that trial judges are afforded ‘to exclude
evidence that is repetitive, only marginally relevant or poses an undue risk of harassment,
prejudice, or confusion of the issues’” (Id. at PageID.4297 citing Crane v. Kentucky, 476 U.S. 683,
689-90 (1986)).
Petitioner finally argues that the Magistrate Judge erred in finding that his Brady claims
were unexhausted. The Court disagrees. The Magistrate Judge correctly determined that Petitioner
did not fairly present these claims to the state courts:
Contrary to Petitioner’s argument, he failed to exhaust this claim. Petitioner is
correct that he raised his Brady claim in his Standard 4 brief (ECF No. 7-22 at
PageID.1711; ECF No. 7-23 at PageID.1781–82), but the clerk returned the brief
to Petitioner because he filed it after the court of appeals had issued its decision.
(Id. at PageID.1784.) Petitioner is correct that he raised the issue in his motion for
relief from judgment. (ECF No. 43-2 at PageID.4126, 4157–62.) However, he was
later appointed counsel who filed an amended motion for relief from judgment that
omitted the issue. (ECF No. 43-1 at PageID.4075–4121.) While Petitioner did raise
the issue in his subsequent applications to the Michigan Court of Appeals and the
Michigan Supreme Court, it was never presented to the trial court. Presentation of
an issue for the first time on discretionary review to an appellate court does not
fulfil the “fair presentation” requirement.
(ECF No. 44 at PageID.4299).
In sum, Petitioner’s arguments fail to demonstrate any factual or legal error in the
Magistrate Judge’s analysis or conclusion.
Having determined 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 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).

3

Under Slack, 529 U.S. at 484, 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.” Id. “A petitioner satisfies this standard by demonstrating that . . .
jurists of reason could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
The Court has examined each of Petitioner’s claims under the Slack standard and finds that
reasonable jurists could not conclude that this Court’s dismissal of Petitioner’s claims was
debatable or wrong. Therefore, the Court will deny Petitioner a certificate of appealability.
Accordingly:
IT IS HEREBY ORDERED that the Objections (ECF No. 47) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 44) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the petition for habeas corpus relief (ECF No. 1) is
DENIED for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that Petitioner’s request for an evidentiary hearing is
DENIED because the record and state-court findings are adequate under 28 U.S.C. § 2254(e).
IT IS FURTHER ORDERED that Petitioner’s request for additional discovery is
DENIED because he has not demonstrated good cause to conduct discovery.
IT IS FURTHER ORDERED that a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c) is DENIED as to each issue asserted.
The Court does not certify that an appeal would not be taken in good faith.
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: January 31, 2024

4