Pugh #681265 v. McKee

Filing 14

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 11 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Donovan Terrell Pugh,
Petitioner,
-vKenneth McKee,
Respondent.

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No. 1:15-cv-350
HONORABLE PAUL L. MALONEY

OPINION
On April 1, 2015, Petitioner filed a motion under 28 U.S.C. § 2254 seeking relief
from a state conviction. (ECF No. 1.) The State of Michigan, through McKee, filed its
response on October 9, 2015. (ECF No. 5.) The Magistrate Judge issued an R&R on May
23, 2017, recommending that the petition be denied. (ECF No. 11.) Petitioner filed the
instant objections on June 8, 2017. (ECF No. 12.) The matter is now before the Court for
de novo review of Petitioner’s objections to the R & R.
I.

Statement of Facts
Petitioner takes no issue with the facts as summarized by the Magistrate Judge. Since

he lodges objections only to legal conclusions, the Court adopts the summary of the facts
contained in the R & R. (ECF No. 11.)
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
Petitioner asserted several grounds for relief in his § 2254 petition: (1) the

government’s failure to produce eyewitnesses at his trial violated his constitutional right to
confrontation; (2) his trial was tainted by evidence of an impermissibly suggestive pretrial
identification; and (3) ineffective assistance of counsel. (ECF No. 1.) After examining each
issue, the Magistrate Judge concluded Petitioner’s arguments lacked merit and
recommended that the Court deny his petition. (ECF No. 11.) Petitioner now lodges
objections to the magistrate judge’s legal recommendations. (ECF No. 12.) Although not a
model of clarity, the Court construes Petitioner’s objections liberally to raise two challenges
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to the Magistrate Judge’s conclusions: (1) that the Michigan Court of Appeals erred by
concluding that an impermissibly suggestive identification at trial was harmless error; and (2)
that he was deprived of his Sixth Amendment right to counsel because his trial attorney failed
to object to or move to exclude evidence of the impermissible identification.
A.

Impermissible Identification

Petitioner first renews his argument that introduction of the impermissibly suggestive
identification at trial justifies relief from his conviction. He argues that if evidence of the
identification had not been admitted, his conviction would not have been supported by
sufficient evidence. (ECF No. 12 at PageID.1325–27.) However, Petitioner did not raise a
sufficiency of the evidence claim in his § 2254 petition or at any time before the Magistrate
Judge. (See ECF No. 1, 1-1.) Petitioners seeking habeas review cannot raise new grounds for
relief when objecting to an R & R. See Murr v. United States, 200 F.3d 895, 902 n. 1 (6th
Cir.2000) (“Petitioner's failure to raise this claim before the magistrate constitutes waiver.”)
Instead, the Court will construe Petitioner’s objection as challenging the Michigan Court of
Appeals conclusion that admission of the improper identification was harmless error.1
Petitioner’s arguments relating to the impermissibly suggestive identification were
thoroughly addressed by the Michigan Court of Appeals, as the magistrate judge noted. (ECF
No. 11 at PageID.1313–14.) There, the court relied upon Supreme Court precedent to
determine that the government’s identification procedure was unduly suggestive and should

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Essentially, this is the same grounds for relief. If insufficient evidence supported
Petitioner’s conviction without the improper identification, then it could not be harmless
error.
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not have been admitted. It then proceeded to consider whether the improper identification
was harmless error:
Notwithstanding the above conclusion, we find that reversal is not warranted
in this case. To warrant reversal under the plain error standard, a defendant
must show that the plain error affected his substantial rights; that is, “that the
error affected the outcome of the lower court proceedings.” Carines, 460 Mich
at 763-764. Defendant cannot do so in this case. First, it is apparent from the
record that any prejudicial effect resulting from Williams’ identification of
defendant as the perpetrator was minimized by his defense counsel’s rigorous
cross-examination of Williams regarding his initial description of the assailants
and the subsequent identification procedure that took place at the police
station. Thus, the jury was well aware of the problems associated with
Williams’ identification of defendant. Moreover, while Williams’
identification of defendant was the only direct evidence linking him to the
armed robbery, we find the other, circumstantial evidence in this case was
strong and sufficient to support defendant’s convictions. Circumstantial
evidence, along with the reasonable inferences drawn therefrom, can be
sufficient to support a conviction. People v Wilkens, 267Mich App 728, 738;
705 NW2d 728 (2005).
In this case, the evidence established that defendant was in the Ford Escape
after the armed robbery occurred. Moreover, when defendant was later found
hiding under a porch, he was in possession of Williams’ stolen iPhone. See
People v Hayden, 132 Mich App 273, 283 n4; 348 NW2d 672 (1984) (“It is
well established that the jury may infer that the possessor of recently stolen
property was the thief”). Finally, black mask with eye holes cut out, which
Williams testified was similar to the one used during the robbery, was found
in the roadway near where the Ford Escape was stopped by police. Defendant
could not be excluded as a donor of DNA found on that mask. It was
reasonable for the jury to infer from all of this evidence that defendant was
involved in the armed robbery. Accordingly, defendant cannot demonstrate
that the out-of-court identification of defendant by Williams affected the
outcome of the trial, and reversal is not warranted. Carines, 460 Mich at 763764.
(ECF No. 6-11 at PageID.1142.)
A § 2254 challenge to a state court determination of “harmless error” requires a
showing that the harmlessness determination was unreasonable. Davis v. Ayala, 135 S. Ct.

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2187, 2199 (2015) (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007)). Harmlessness
determinations are not unreasonable if “fairminded jurists could disagree” as to their
correctness. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)).
Petitioner’s objection on this ground rests on a misunderstanding relating to
the law of evidence. He states that without the impermissible identification:
There is no direct evidence that [he] was part of the robbery. Only [sic] fact
was the Petitioner in possession of the phone that was took from the Robbery
and the fact that he may have ran from the car[, and] the police found a mask
close by. Now let's review the law in relation to these facts, if the identification
had been suppressed as it should have been in the case. There [sic] testimony
that the Petitioner was in the vicinity of the crime scene shortly before and after
the Robbery, even if believed, these facts is insufficient to establish guilt under
Michigan law.
However, circumstantial evidence is entitled to the same weight as direct evidence, and
circumstantial evidence alone is sufficient to sustain a conviction. United States v. Mack, 808
F.3d 1074, 1080 (6th Cir. 2015.)
After reviewing the Michigan Court of Appeals decision and the magistrate judge’s
recommendation, the Court concludes that the harmless error determination was
reasonable. Significant circumstantial evidence linked Petitioner to the crime. As the
magistrate judge noted:
Petitioner admitted riding in the vehicle while the phone was being transported
away from the crime scene and while it was being electronically tracked by the
victim and his girlfriend. A mask matching Williams’ description was found
on the road near where the vehicle was stopped by police. Petitioner ran from
the vehicle when it was stopped. And Petitioner was found in possession of the
phone, hiding from the police under a low porch.

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(ECF No. 11 at PageID.1317.) Because of the extensive circumstantial evidence,
Petitioner is unable to show that the Michigan Court of Appeals determination that
the identification was harmless was “an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Ayala, 562 U.S. at
103. Accordingly, Petitioner’s first objection is without merit.
B.

Ineffective Assistance of Trial Counsel

Next, Petitioner claims that his trial attorney provided ineffective assistance of counsel
in violation of the Sixth Amendment. The standard for ineffective assistance of counsel, as
established in Strickland v. Washington, requires a defendant to prove (1) that defense
counsel’s performance fell below an objective standard of reasonableness, and (2) there is a
reasonable probability that, but for the unprofessional errors, the outcome of the
proceedings would have been different. 466 U.S. 668, 694 (1984). Either prong may be
addressed first, and the failure to demonstrate prejudice obviates the need for the Court to
address the counsel performance prong, and vice versa. Id. at 697. The burden is on the
defendant to prove that his counsel provided ineffective assistance by a preponderance of
the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
When considering whether counsel’s performance fell below an objective standard of
reasonableness, courts must “apply a ‘strong presumption’ that counsel’s representation was
within the ‘wide range’ of reasonable professional assistance.” Premo v. Moore, 562 U.S.
115, 122 (2011) (citing Strickland, 466 U.S. at 688). The defendant has the burden to show
that counsel’s errors were “so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.” Id.
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To establish ineffective assistance, the defendant must show that his counsel’s
representation was incompetent under prevailing professional norms, not merely that it
deviated from best practices or common custom, and that the conduct was not sound trial
strategy. Strickland, 466 U.S. at 690. Courts must be highly deferential and consider the
circumstances of the attorney’s conduct at the time of the performance, not with the benefit
of hindsight. Id. at 689. It is especially difficult to challenge strategic decisions made after a
thorough investigation of the relevant law and facts; such decisions are “virtually
unchallengeable.” Rayborn v. United States, 489 F. App’x 871 (6th Cir. 2012) (citing

Strickland, 466 U.S. at 690). Defendants cannot compel their attorneys to assert even nonfrivolous arguments if counsel decides not to press those points as a matter of professional
judgment. Jones v. Barnes, 463 U.S. 745, 751 (1983).
Petitioner’s ineffective assistance of counsel argument is derivative of his first
argument. He claims that his attorney provided constitutionally ineffective assistance by
failing to object to or move to exclude the above-mentioned impermissible identification.
Petitioner previously raised this issue with the Michigan Court of Appeals on direct appeal.
(ECF No. 6-11 at PageID.1142–43.) That court explicitly applied the Strickland test and
determined Petitioner’s counsel was within a range of reasonable professional conduct
because petitioner’s counsel rigorously cross-examined the witness in an attempt to
undermine the witness’ credibility. (Id.) Additionally, that court held that Petitioner was
unable to show that “but-for” his counsel’s failure to object, the outcome of the trial would
have been different. (Id.)

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When a federal court reviews a state court’s application of Strickland in a § 2254
petition, the standard becomes even more deferential. Harrington v. Richter, 562 U.S. 86,
105 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow,
134 S. Ct. 10, 13 (2013); Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011); Premo v. Moore,
562 U.S. 115, 122 (2011). Under the circumstances, the appropriate standard is “whether
there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
Here, Petitioner’s argument fails before it even gets off the ground. The underlying
conduct that Petitioner challenges—introduction of an impermissible suggestive
identification—has already been analyzed and found to be harmless. Thus, there is a morethan-reasonable argument that Petitioner’s counsel met the standard in Strickland because
counsel’s failure to object to evidence of the impermissible identification was inconsequential
and did not result in any prejudice to the Petitioner. Accordingly, Petitioner’s second
objection lacks merit.
IV.

Conclusion
In short, Petitioner has presented no claim for which he is entitled to relief.
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
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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, a reasonable jurist would
not conclude the Court’s assessment of each of petitioner’s claims to be debatable or wrong,
particularly in light of the AEDPA deference owed to the Michigan courts. Accordingly,
Petitioner’s certificate of appealability is DENIED.
ORDER
For the reasons discussed in the accompanying opinion: Petitioner’s objections are
OVERRULED (ECF No. 12); the Magistrate Judge’s report and recommendation is
ADOPTED (ECF No. 11); Petitioner’s petition is DENIED (ECF No. 1); a certificate of
appealability is DENIED. Judgment will enter separately.
IT IS SO ORDERED.
Date: October 17, 2017

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

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