Calvey #423997 v. Burt

Filing 25

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 19 ; Petitioner's Petition for Writ of Habeas Corpus 1 is dismissed; denying a certificate of appealability ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHANE MICHAEL CALVEY,
Petitioner,
CASE NO. 1:15-CV-976
v.
HON. ROBERT J. JONKER
S. L. BURT,
Respondent.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Kent’s Report and Recommendation (ECF No. 19)
and Petitioner’s Objections to Report and Recommendation (ECF No. 23). Under the Federal Rules
of Civil Procedure, where, as here, a party has objected to portions of a Report and
Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge’s
recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRIGHT,
MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997).
Specifically, the Rules provide that:
The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
with instructions.
FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the

Report and Recommendation itself; and Petitioner's objections. After its review, the Court finds
the Magistrate Judge correctly concluded that Petitioner is not entitled to habeas corpus relief.
The Magistrate Judge recommends denial of Petitioner’s habeas petition. In his objections,
Petitioner primarily reiterates and expands upon arguments presented in his original brief.
Petitioner’s objections fail to deal in a persuasive way with the Magistrate Judge’s analysis. The
Magistrate Judge carefully and thoroughly considered the evidentiary record, the parties’ arguments,
and the governing law. The Magistrate Judge properly analyzed Petitioner’s claims. Nothing in
Petitioner’s Objections changes the fundamental analysis. The Court concludes that Petitioner is
not entitled to federal habeas relief, for the very reasons detailed in the Report and Recommendation
of the Magistrate Judge.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner may not
appeal in a habeas corpus case unless a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1). The Federal Rules of Appellate Procedure extend to district judges the
authority to issue certificates of appealability. FED. R. APP. P. 22(b); see also, Castro v. United
States, 310 F.3d 900, 901-02 (6th Cir. 2002) (the district judge “must issue or deny a [certificate
of appealability] if an applicant files a notice of appeal pursuant to the explicit requirements of
Federal Rule of Appellate Procedure 22(b)(1)”). However, a certificate of appealability may be
issued “only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
To obtain a certificate of appealability, Petitioner must demonstrate that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” MillerEl v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
While Petitioner is not required to establish that “some jurists would grant the petition for habeas

corpus,” he “must prove ‘something more than an absence of frivolity’ or the existence of mere
‘good faith.’” Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In this case, Petitioner
has not made a substantial showing of the denial of a constitutional right. Therefore, he is not
entitled to a certificate of appealability.
The Magistrate Judge properly concluded that Petitioner is not entitled to the habeas corpus
relief he seeks. Petitioner is not entitled to a certificate of appealability.
Accordingly, IT IS ORDERED that the Report and Recommendation of the Magistrate
Judge (ECF No. 19) is APPROVED AND ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that:
1.
2.

Dated:

Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1) is DISMISSED; and
Petitioner is DENIED a certificate of appealability.

July 12, 2017

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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