McDonald #854192 v. McKee

Filing 33

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 24 ; overruling petitioner's objections; denying habeas petition; denying a certificate of appealability; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Howard Louis McDonald, Jr.,
Petitioner,
-vKenneth T. McKee,
Respondent.

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No. 1:15-cv-554
HONORABLE PAUL L. MALONEY

OPINION AND ORDER
This matter is before the Court on Petitioner Howard McDonald’s objection to the
Report and Recommendation (R&R) issued by Magistrate Judge Phillip J. Green. (ECF No.
29.) On June 1, 2015, Petitioner filed a habeas corpus petition for relief from a state court
decision under 28 U.S.C. § 2254. (ECF No. 1.) Petitioner subsequently amended his petition
on July 8, 2015 (ECF No. 7), and a response was filed on January 19, 2016 (ECF No. 12).
The matter was referred to the Magistrate Judge, who recommended the petition be denied
on February 23, 2017. (ECF No. 24.) Petitioner filed the instant objections. (ECF No. 29.)
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), 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

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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).
On de novo review, habeas corpus petitions, such as this one, are governed by the
provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110
Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). If a state court
adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d);
see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190
(2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((“[A]ny claim that was
adjudicated on the merits in State court proceedings’ is subject to AEDPA deference.”)
(quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal habeas “retrials” and ensures that
state court convictions are given effect to the extent possible under law. Bell v. Cone, 535
U.S. 685, 693-94 (2002). It prohibits “using federal habeas corpus review as a vehicle to
second-guess the reasonable decisions of state courts.” Parker v. Matthews, 132 S. Ct. 2148,
2149 (2012) (per curiam).

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The AEDPA standard is difficult to meet “because it was meant to be.” Harrington

v. Richter, 562 U.S. 86, 102 (2011). “Section 2254(d) reflects that habeas corpus is a guard
against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary
error corrections through appeal.” Id. at 102-03 (citation and internal quotation omitted); see

Woods v. Donald, 135 S. Ct. 1372, 1376 (2015). Section 2254(d) states that an application
for a writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state
conviction cannot be granted with respect to any claim that was adjudicated on the merits in
state court unless the adjudication “(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based upon an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); see White v. Wheeler, 136 S. Ct. 456, 460 (2015); Davis
v. Ayala, 135 S. Ct. at 2198; White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
The only definitive source of clearly established federal law for purposes of §
2254(d)(1) is the holdings—not dicta—of Supreme Court decisions. White v. Woodall, 134
S. Ct. at 1702; see Woods v. Donald, 135 S. Ct. at 1377 (“Because none of our cases confront
‘the specific question presented by this case,’ the state court’s decision could not be ‘contrary
to’ any holding from this Court.”). “[W]here the precise contours of a right remain unclear,
state courts enjoy broad discretion in their adjudication of a prisoner’s claims.” Id.
(quotations and internal citations omitted)

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Analysis
Petitioner’s filing is not very coherent; most of the submission contains either a
restatement of his prior factual assertions or an attempt to expand the record after the
Magistrate Judge already considered each of his arguments. For example, Petitioner
repeatedly lays out his factual assertions with the preface, “I would like to add. . . .” (ECF
No. 29 at PageID.909.) To the extent Petitioner adds to the factual record that the Magistrate
Judge already considered, he has raised those facts too late. See e.g., Heston v.

Commissioner of Social 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). To the extent Petitioner merely
repeats his factual assertions, he has not explained how, specifically, the Magistrate Judge’s
report and recommendation errs by omitting relevant facts or failing to apply the law to his
factual assertions. At no point in Petitioner’s factual exhortations does he “pinpoint those
portions of the magistrate’s report that the district court must specifically consider.” Mira,
806 F.2d at 637.
Construing Petitioner’s objection liberally, the Court can discern only two objections
sufficient to warrant review.
First, Petitioner argues the Magistrate Judge erred by evaluating his ineffective
assistance of counsel claim because, in his view, “if Dr. Haugen[] would have been asked to
testify to [certain] findings[,] the jury may have not found me guilty of 1st degree premediated
murder . . . .” But, as the Magistrate Judge noted, “it is not enough to convince the federal
habeas court that, in its independent judgment, the state-court decisions applied Strickland

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incorrectly.” (ECF No. 24 at PageID.896.) “Rather, petitioner must show that the state courts
‘applied Strickland to the facts of his case in an objectively unreasonable manner.’” (Id.
(quoting Bell v. Cone, 535 U.S. 685, 699 (2002)).) Petitioner has not met his heavy burden
under these circumstances. Moreover, he has not shown prejudice arose from the alleged
ineffective assistance; even assuming Dr. Haugen testified to Petitioner’s liking, Petitioner
has not shown the jury would have passed on the first-degree murder option because the
other evidence was “overwhelming.” (ECF No. 24 at PageID.894.) The state court’s
judgment that “Petitioner failed to establish prejudice” neither was contrary to, nor
represented an unreasonable application of, Strickland. See Bell, 535 U.S. at 698–99.
Second, Petitioner argues the Magistrate Judge misconstrued the factual record with
respect to him waiving his right to testify. (ECF No. 29 at PageID.910–11.) Petitioner insists
that he never waived his right to testify. (Id. at PageID.911.) At trial, Petitioner’s attorney
made the strategic choice to rely on Petitioner’s recorded statement to the police and not to
call defendant to testify. (ECF No. 13-9 at PageID.371–72.) When a defendant’s counsel
makes the strategic decision not to call the defendant it is presumed that the defendant
assented to not being called. United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000)
(citing United States v. Joelson, 7 F.3d 174 (9th Cir. 1993)). If there is a disagreement
between a defendant and his counsel on whether he should be called to testify, it is on the
defendant to bring the disagreement to the attention of the Court. See id. “When a defendant
does not alert the trial court of a disagreement, waiver of the right to testify may be inferred
from the defendant's conduct.” Id.

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Here, although Petitioner did eventually inform the Court that he disagreed with his
counsel and wished to represent himself and testify, it was not until after the close of proofs
that he brought the disagreement to the Court’s attention. (ECF No. 13-9 at PageID.910–
11.) At that time, it was within the Courts broad discretion to deny Petitioner’s implicit
motion to reopen proofs and deem his right to testify waived. See United States v.

Bridgefourth, 538 F. 2d 1251, 1253 (6th Cir. 1976) (citing United States v. Wade, 364 F.2d
931(6th Cir. 1966)). At a minimum, Petitioner has not shown that the decision of the state
court in deeming his right to testify waived was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d).
Therefore, Petitioner’s objections to the Magistrate Judge’s recommendation must be
overruled.
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
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.

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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 are
OVERRULED (ECF No. 29); the Magistrate Judge’s report and recommendation is
ADOPTED (ECF No. 24); Petitioner’s petition is DENIED (ECF No. 7); and a certificate
of appealability is DENIED.
Judgment will enter separately.
IT IS SO ORDERED.
Date: July 3, 2017

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

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