Miller #226319 v. Rivard

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION 17 ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TYRONZA MILLER,
Petitioner,

Case No. 1:15-CV-517

v.

HON. GORDON J. QUIST

STEVEN RIVARD,
Respondent.
/
ORDER ADOPTING
REPORT AND RECOMMENDATION
Petitioner, Tyronza Miller, has filed Objections to Magistrate Judge Phillip Green’s May 12,
2017, Report and Recommendation ( R & R), recommending that the Court deny Miller’s petition
for writ of habeas corpus. In the R & R, the magistrate judge concluded that Miller failed to meet
the “‘nearly insurmountable hurdle’” that habeas petitioners asserting sufficiency-of-the-evidence
claims face. (R & R at 15, 17 (quoting Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011 (en banc)).
In particular, the magistrate judge observed that the prosecutor was not required to provide
eyewitness identification of Miller as the perpetrator of the carjacking. The magistrate judge also
summarized the circumstantial evidence and found that the facts permitted an “extremely strong
inference” that Miller perpetrated the carjacking. (Id. at 17.) As for Miller’s second claim—that
the prosecution’s introduction of prior bad acts evidence deprived him of his right to due
process—the magistrate judge concluded that Miller’s due process claim fails because there is no
clearly established law from the United States Supreme Court that admission of propensity evidence
in the form of other bad acts violates a defendant’s due process rights. (Id. at 18.) Finally, the
magistrate judge concluded that Miller fails to show that the Michigan Court of Appeals’
adjudication of Miller’s ineffective assistance of counsel claim was unreasonable. (Id. at 21–22.)

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, Miller’s Objections, and the pertinent portions of the record, the Court
concludes that the R & R should be adopted.
First, as to the sufficiency of the evidence claim, Miller restates the evidence and argues that
it was insufficient to convict him of carjacking, particularly since no witness identified him as the
perpetrator. As the magistrate judge correctly observed, however, ample circumstantial evidence
was presented to allow the jury to conclude that Miller took the vehicle from the victim. This
evidence included testimony that the stolen vehicle was recovered in Texarkana, Texas, less than
eight miles from where Miller was arrested. In short, Miller fails to show that “the evidence was
so overwhelmingly in favor of [Miller] that it compelled a verdict in his . . . favor.” Thompson v.
Bock, 215 F. App’x 431, 436 (6th Cir. 2007). Moreover, Miller fails to show that the state court’s
decision amounted to an objectively unreasonable application of Jackson v. Virginia, 443 U.S. 307,
99 S. Ct. 2781 (1979). See Williams v. Taylor, 529 U.S. 362, 409, 120 S. Ct. 389, 1521 (2000).
As for his second claim, Miller argues that Duncan v. Henry, 513 U.S. 364, 115 S. Ct. 887
(1995), undermines the magistrate judge’s statement that there is no clearly established Supreme
Court precedent holding that a state court violates the Due Process clause by admitting propensity
evidence in the form of other bad acts evidence. Miller is mistaken. Duncan dealt with the issue
of exhaustion, and the portion of Duncan that Miller cites is the dissent. Finally, as to Miller’s trial
counsel’s failure to object to admission of the threatening text messages Miller sent to Brianna
Boals, the Court concurs with the magistrate judge that, given the abundance of evidence the
prosecution presented to the jury, the state court’s determination that Miller failed to show prejudice
from counsel’s deficient performance was reasonable.

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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. Consequently, this Court has examined Miller’s
claims 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 dismissal of Miller’s claim was debatable or
wrong. Thus, the Court will deny Miller a certificate of appealability. Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
issued May 12, 2017 (ECF No. 17) is APPROVED AND ADOPTED as the Opinion of this Court.
Petitioner’s Objection (ECF No. 18) is OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s habeas corpus petition is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
This case is concluded.
A separate judgment will enter.

Dated: June 28, 2017

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

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