Reed #402813 v. Mackie

Filing 18

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)

Case 1:16-cv-01202-GJQ-RSK ECF No. 18 filed 07/26/18 PageID.600 Page 1 of 3

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

DEMARCUS DELVONN REED,
Petitioner,
v.

Case No. 1:16-CV-1202

THOMAS MACKIE,

HON. GORDON J. QUIST

Respondent.
___________________________/
ORDER ADOPTING
REPORT AND RECOMMENDATION
This is a habeas corpus action brought by state prisoner Demarcus Reed under 28 U.S.C.
§ 2254. After reviewing the parties’ briefs and the pertinent portions of the record, Magistrate
Judge Ray Kent issued a Report and Recommendation (R & R), recommending that the Court
deny Reed’s petition. (ECF No. 12.) Reed filed an Objection to the R & R. (ECF No. 16.)
Under Federal Rule of Civil Procedure 72(b), a party “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 & R to
which a party 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, Reed’s objections, and the pertinent portions of the
record, the Court concludes that the R & R should be adopted.
Reed makes approximately thirteen objections to the R & R—specifically highlighting the
R & R’s citations to the record he claims are either in error or are correct. Reed then cites instances

Case 1:16-cv-01202-GJQ-RSK ECF No. 18 filed 07/26/18 PageID.601 Page 2 of 3

in the record, such as cross-examination or the police reports, that he argues contradict the R &
R’s citations. Cumulatively, Reed argues, these errors show that he was denied a fair trial and due
process.
Reed highlights testimony that the R & R cited testimony from cross-examination that he
implies is contradictory. This testimony was before the jury and the Michigan Court of Appeals.
The Court of Appeals considered this testimony in reaching its factual findings, and Reed has not
shown by clear and convincing evidence that these factual findings were incorrect. 28 U.S.C. §
2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003). Reed also relies upon
statements in police reports. Police reports are generally inadmissible hearsay. See, e.g., Miller v.
Field, 35 F.3d 1088, 1091–92 (6th Cir. 1994). Therefore, these arguments are without merit. Reed
argues that the lack of DNA evidence exonerates him; this ignores the weight of the other evidence
presented at trial—particularly the testimony of the two victims. See Robinson v. Klee, No. 161742, 2017 WL 6003437, at *3 (6th Cir. Jan. 9, 2017) (rejecting argument that lack of DNA
evidence exonerated the habeas petitioner). Reed’s other arguments are conclusory and vague.
Reed has not overcome his “burden of rebutting the presumption of correctness [of the state court’s
findings] by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, the Court will
overrule Reed’s objections.
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Reed has demonstrated a “substantial
showing of the 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

2

Case 1:16-cv-01202-GJQ-RSK ECF No. 18 filed 07/26/18 PageID.602 Page 3 of 3

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 each of Reed’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.” The Court finds that reasonable jurists could not
find that this Court’s dismissal of Reed’s claims was debatable or wrong. Therefore, the Court
will deny Reed a certificate of appealability.
Therefore,
IT IS HEREBY ORDERED that the magistrate judge’s Report and Recommendation
(ECF No. 12) is AFFIRMED AND ADOPTED as the Opinion of this Court and Petitioner’s
objections (ECF No. 16) are OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s Petition for Writ of Habeas Corpus (ECF
No. 1) is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
A separate judgment will issue.

Dated: July 26, 2018

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

3