Parker #401780 v. Palmer
ORDER ADOPTING REPORT AND RECOMMENDATION 12 : Petitioner's petition and certificate of appealability are DENIED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:16-CV-911
HON. GORDON J. QUIST
REPORT AND RECOMMENDATION
Petitioner, Timothy Parker, filed a petition for writ of habeas corpus raising one
issue—whether his conviction for armed robbery, in violation of M.C.L. § 750.529, was supported
sufficient evidence. On July 5, 2017, Magistrate Judge Phillip J. Green issued a Report and
Recommendation ( R & R) recommending that the Court deny Petitioner’s petition for writ of
habeas corpus. Applying the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781 (1979), the magistrate judge concluded the state court’s determination that Petitioner’s armed
robbery conviction was supported by sufficient evidence was reasonable and neither contrary to, nor
an unreasonable application of, clearly establish law from the United States Supreme Court. (R &
R at 13.) The magistrate judge further concluded that, to the extent Petitioner takes issue with the
Michigan Court of Appeals’ explication of state law, Petitioner fails to present an issue for habeas
review. (Id. at 9–10, 13.)
Petitioner has filed an Objection to the R & R. 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, Petitioner’s Objection,
and the pertinent portions of the record, the Court concludes that the R & R should be adopted.
Based on its de novo review, the Court concurs with the magistrate judge’s determination
that the Michigan Court of Appeals reasonably applied the Jackson standard to conclude that the
prosecution presented sufficient evidence on each of the elements to support Petitioner’s conviction.
The Court notes that Petitioner’s Objection focuses almost exclusively on the Michigan Court of
Appeals’ interpretation of state law. As the magistrate judge explained in the R & R, it is not the
province of a federal habeas court to determine the elements of a state-law offense. See Estelle v.
McGuire, 502 U.S. 62, 67–68, 112 S. Ct. 475, 480 (1991) (“Today, we reemphasize that it is not the
province of a federal habeas court to reexamine state-court determinations on state-law questions.
In conducting habeas review, a federal habeas court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.”). Petitioner cites no case from the
United States Supreme Court to the contrary.1 Accordingly, Petitioner’s Objection will be
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
Petitioner cites Cole v. Arkansas, 333 U.S. 196, 68 S. Ct. 514 (1948), for the proposition that his conviction
under Michigan’s armed robbery statute was contrary to the notice and procedure requirements of the Due Process
Clause. (ECF No. 13 at PageID.500.) The Court in Cole held that the petitioners’ due process rights were violated
because the Arkansas Supreme Court affirmed their convictions based on a section of a criminal statute that was not the
section under which the petitioners had been charged and convicted. Id. at 197–98, 68 S. Ct. at 515. The Court observed
that “[n]o principle of procedural due process is more clearly established than that notice of the specific charge, and a
chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every
accused in a criminal proceeding in all courts, state or federal.” Id. at 201, 68 S. Ct. at 517. Cole is not applicable in
this case because Petitioner does not allege that his conviction was affirmed under a statute that was not the statute that
formed the basis for his charge and conviction. In any event, Petitioner did not exhaust such a claim in state court.
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
Petitioner’s claim 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 Petitioner’s claim was debatable or
wrong. Thus, the Court will deny Petitioner a certificate of appealability. Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
issued July 5, 2017 (ECF No. 12) is APPROVED AND ADOPTED as the Opinion of this Court.
Petitioner’s Objection (ECF No. 13) 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: August 2, 2017
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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