Ware #239221 v. Brewer

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION 16 : Petitioner's petition and certificate of appealability are DENIED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

CALVIN B. WARE,
Petitioner,
v.

Case No. 1:16-CV-1034

SHAWN BREWER,

HON. GORDON J. QUIST

Respondent.
_____________________/
ORDER ADOPTING
REPORT AND RECOMMENDATION
This is a habeas corpus action brought by Calvin Ware, a state prisoner, under 28 U.S.C. §
2254. After reviewing Ware’s petition and Respondent Shane Brewer’s response and applying the
standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104–132, 110
Stat. 1214, Magistrate Judge Phillip Green found that Ware’s petition for habeas corpus is
meritless, and issued a 35-page Report and Recommendation (R & R) recommending that the
Court deny Ware’s petition in its entirety. (ECF No. 16.) Ware filed objections 1 but did not
specifically object to the magistrate judge’s findings on the state trial court’s denial of a jury
instruction regarding the lesser-included offense of voluntary manslaughter. (ECF No. 21.)
Under Federal Rule of Civil Procedure 72(b), a petitioner “may serve and file specific
written objections” to the R & R, and the Court is to consider any proper objection. Local Rule
72.3(b) likewise requires that written objections “shall specifically identify the portions” of the R

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Magistrate Judge Green granted Ware an extension of time until February 22, 2018, to file objections based solely
on the delay in delivery of the R & R. (ECF No. 19.) Ware’s objections are dated February 25, 2018. (ECF No. 21
at PageID.1014.) Because the prison system’s mail is not the most expeditious of mail system, and because Ware
has had a delay previously, the Court will not strictly enforce Ware’s three-day tardiness.

& R to which a petitioner objects. Under 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, Ware’s Objections, and the pertinent portions of the
record, the Court concludes that the R & R should be adopted.
Because Ware did not object to the magistrate’s conclusions regarding the denial of a
voluntary manslaughter instruction, any objection to this issue is deemed waived. See, e.g., Smith
v. Detroit Fed’n of Teachers Local 231, Am. Fed’n of Teachers, AFL-CIO, 829 F.2d 1370, 1373
(6th Cir. 1987) (“making some objections but failing to raise others will not preserve all the
objections a party may have”).
The magistrate considered both Ware’s first and fifth grounds for relief, that the prosecutor
presented insufficient evidence identifying Ware as the shooter and that his rights were violated
because the prosecution failed to definitively identify Ware as the shooter, respectively, under a
sufficiency of the evidence analysis. The R & R found that the credibility of the witnesses at issue,
particularly relating to their inconsistent statements, was properly challenged before the jury.
Ware would have the Court impose a duty upon the prosecutor “to investigate the statements,
preliminary examination and other conflicting evidence, and to interrogate their own witnesses
about it.” (ECF No. 21 at PageID.996.) Ware objects that the “prosecutor strategically shifted the
burden to [Ware] to prove the witnesses were not credible.” (Id. at PageID.999.)
Ware asks the Court to subvert the nature of adversarial litigation, and in place of cross
examination, would impose a duty on a prosecutor to ask questions that the defense counsel should
ask on cross. There is absolutely no basis for this, and Ware misapplies case law in an effort to
say there is.

Regardless, Ware’s own counsel did investigate the inconsistencies of the

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prosecution’s witnesses, and raised them at trial. The jury was made aware of the inconsistencies
and, considering them in light of other evidence, still unanimously decided that Ware was the man
who pulled the trigger. Inconsistent statements such as those here, e.g., whether the gun was black
or silver, and in the shooter’s left hand or right hand, present credibility questions that are, and
were, properly left to the jury.
Ware also argues that the witnesses were “inherently incredible and unworthy of belief,”
and seeks a new trial. The R & R correctly noted that Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781 (1979), presents a “nearly insurmountable hurdle” when challenging the sufficiency of the
evidence, in light of the deference owed to the jury’s verdict. Davis v. Lafler, 658 F.3d 525, 534
(6th Cir. 2011) (citation omitted). Ware makes conclusory statements in support of his argument
that the witnesses were “seriously impeached” and the case was “marked by uncertainties and
discrepancies.” The R & R correctly considered the evidence presented and, in light of Jackson,
found that the evidence was sufficient.
Ware next argues that the R & R incorrectly applied a sufficiency of the evidence review
instead of doing an identification analysis under Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375
(1972), and Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243 (1977). Biggers and Manson dealt
with suggestive identification procedures, e.g., using a single photograph to identify a suspect.
That is not the case here, and therefore the identification analysis Ware cites is wholly inapplicable.
Accordingly, the Court will adopt the R & R on the sufficiency of the evidence claims.
The R & R concluded that the admission of hearsay evidence at the trial is a state law
question not cognizable on habeas review, and also noted that Ware fails to demonstrate that the
admission of the hearsay evidence violated his right to a fair trial. At trial, Mr. Wagemaker
testified that he overheard an unidentified bicyclist say to Ware, “you killed my ears with that,”

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and the trial court admitted it as a present sense impression. Now, Ware “contends that such
hearsay testimony containing implicit accusations violates the Confrontation Clause.” (ECF No.
21 at PageID.1010.) Ware ignores a material element that triggers the Confrontation Clause: the
statement at issue must be “testimonial.” Crawford v. Washington, 541 U.S. 36, 51–53, 124 S. Ct.
1354, 1364–65 (2004). “An off-hand, overheard remark might be unreliable evidence and thus a
good candidate for exclusion under hearsay rules, but it bears little resemblance to the civil-law
abuses the Confrontation Clause targeted.” Id. at 51, 124 S. Ct. at 1364. The “you killed my ears
with that” statement was not testimonial; it was an off-hand, overheard remark that was admitted
under hearsay rules and bears little resemblance to the abuses the Confrontation Clause targeted.
Ware’s objections are therefore inapplicable.
Accordingly, the court will adopt the R & R on the hearsay claim.
Ware’s third claim is that he was deprived of a fair trial because the lead investigator
improperly referred to Ware as the “shooter” rather than as the “suspect.” The R & R found that
there was no fundamental error because there is no Supreme Court precedent to say that “a witness’
brief mention of his or her belief in the defendant’s guilt violates due process.” (ECF No. 16 at
PageID.964.) The R & R also applied the harmless error standard from Brecht v. Abrahamson,
507 U.S. 619, 113 S. Ct. 1710 (1993). Ware argues that the R & R, and the Michigan Court of
Appeals, applied the wrong standard by “hypothetically subtract[ing] the improper testimony . . .
and considering and weighing the sufficiency of the evidence.” (ECF No. 21 at PageID.1012.)
Ware correctly cites Kyger v. Carlton, 146 F.3d 374, 382 (6th Cir. 1998), in which the Sixth Circuit
noted that “it is improper in a Brecht inquiry to focus on the sufficiency of the untainted evidence.”
The R & R did not merely look at the sufficiency of the untainted evidence. Specifically,
the R & R analyzed the facts of the testimony under the standards listed in Hargrave v. McKee, 28

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F. App’x 718, 728 (6th Cir. 2007) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.
Ct. 1431, 1438 (1986)), which the R & R cited and applied directly. (ECF No. 16 at PageID.964–
65.)
Accordingly, the Court will adopt the R & R on the improper testimony claim.
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 Ware 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. Therefore, the Court has considered Ware’s claims,
including his objections, 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 denial of Ware’s claims was debatable or wrong.
Thus, the Court will deny Ware a certificate of appealability.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s R & R (ECF No. 16) is
APPROVED AND ADOPTED as the Opinion of this Court, and Petitioner’s Objections (ECF
No. 21) are OVERRULED.

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IT IS FURTHER ORDERED that Petitioner’s petition for habeas corpus relief (ECF No.
1) is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED by this
Court.
A separate judgment will issue.

Dated: March 9, 2018

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

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