Traxler #855644 v. Haas

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATION 27 : Petitioner's Amended Petition 11 and certificate of appealability are DENIED; Petitioner's motion for extension of time 28 is DENIED AS MOOT; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

JAMES TRAXLER,
Petitioner,
v.

Case No. 1:17-CV-122

SHERRY BURT,

HON. GORDON J. QUIST

Respondent.
_________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner, James Traxler, filed a petition for habeas corpus under 28 U.S.C. § 2254. After
reviewing Traxler’s amended petition, Respondent Sherry Burt’s response, and the pertinent
portions of the record, Magistrate Judge Phillip Green issued a Report and Recommendation (R &
R), recommending that the Court deny Traxler’s petition. (ECF No. 27.) Traxler filed a motion
for extension of time to file objections (ECF No. 28) but subsequently filed timely objections.
(ECF No. 31.) Because Traxler filed timely objections, the motion for extension of time will be
denied as moot.
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, Traxler’s objections, and the pertinent portions of the
record, the Court concludes that the R & R should be adopted.
Traxler raised three grounds for relief in his habeas petition. First, that he was deprived of
the right to present a defense and deprived of effective assistance of counsel. Second, that his
counsel was ineffective for failing to move to exclude expert testimony. Third, that his appellate
counsel was ineffective. The first and third grounds derive from Traxler’s argument that his
counsel failed to adequately argue and present a self-defense argument. The R & R found that this
argument is “entirely unsustainable on the record” and accordingly recommended dismissing
Traxler’s first and third grounds for relief. The R & R also recommended dismissing Traxler’s
second ground for relief. The R & R concluded by recommending that the Court deny a certificate
of appealability.
Traxler made four objections. The first three objections relate to Traxler’s self-defenserelated grounds for relief. The fourth is that the R & R erred in recommending that a certificate of
appealability be denied. Traxler did not object to the R & R’s recommendation related to his
argument that counsel was ineffective for failing to move to exclude expert testimony.
Accordingly, the R & R will be adopted as to that issue. 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)
(stating that “making some objections but failing to raise others will not preserve all the objections
a party may have”).
Traxler first objects that the R & R misread his grounds for relief. He argues that the R &
R analyzed his ineffective assistance claim as a failure to raise the defense of self-defense, when
in fact, his argument is that while his counsel did raise self-defense, counsel did not do so
effectively. Instead, he argues, his trial counsel was ineffective by elevating the insanity defense

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over self-defense. Traxler asserts that “[b]y advancing the insanity defense, counsel drew the
jury’s attention away from the more operable defense,” i.e., self-defense. (ECF No. 31.) As the
R & R discussed, ineffective assistance claims analyzed under Strickland and brought under §
2254 are “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 788 (2011).
The Michigan state court’s determination that Traxler’s argument was without merit is entitled to
significant deference. Also, counsel’s tactical choice to allegedly focus more on insanity rather
than self-defense is entirely reasonable under the circumstances. Such tactical decisions are
precisely what the deference to trial counsel is aimed to protect. Traxler’s broad readings of
Strickland and its progeny do not defeat the deference owed. Accordingly, in light of the deference
owed to the Michigan courts and the underlying deference to trial counsel’s strategic decisions,
the R & R will be adopted.
Traxler’s second objection is related to the first. Traxler argues that magistrate did only a
cursory review of the record. This is a misreading of the R & R. The magistrate recognized that
Traxler’s arguments were weak enough to “collapse[] on even cursory review of the trial
transcript.” (ECF No. 27 at PageID.1861.) This does not mean that the magistrate did, in fact, do
a cursory review—only that Traxler’s arguments are so weak as to fail under a cursory review.
The R & R’s recounting of the trial, opening and closing statements, and jury instructions
demonstrate a thorough review of the record. Traxler’s objection is without merit.
Traxler’s third objection is that the R & R inadequately considered his motion to amend,
in which he included the police report after the shooting. In both that motion and his objection,
Traxler argues that witness Eric Carrier’s testimony at trial “was in stark contrast” to his statement
to the police after the shooting. These differences, Traxler argues, “strengthen Mr. Traxler’s selfdefense claim.” At trial, Carrier testified that the victim was looking down and doing something

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with the mower, then turned and looked toward Traxler, and Traxler shot him. (ECF No. 16-9 at
PageID.658.) Carrier’s statements to police did not “differ[] dramatically” as Traxler would have
the Court believe. (ECF No. 24 at PageID.1835.) In those statements, Carrier stated that the victim
was looking down like he was shifting the mower when Traxler “shot him at point blank range in
the right side of his head . . . execution style.” (ECF No. 24-1 at PageID.1840.)
It appears that Traxler may be arguing that the police report demonstrates a prior
inconsistent statement—something to attack the credibility of Carrier. He argues that Carrier’s
testimony “would have been substantially diminished and the jury would have reasonably believed
Petitioner acted in self-defense.” (ECF No. 31 at PageID.1885.) Michigan has a high bar for
admitting purported prior inconsistent statements, which Traxler would not have been able to
reach. People v. Allen, 429 Mich. 558, 650, 420 N.W.2d 499, 541 (1988) (“As a general rule, the
only contradictory evidence that is admissible for impeachment purposes is that which directly
tends to disprove the exact testimony of the witness.”). 1 The victim turning and looking toward
Traxler was not recounted in the police report—but the absence of this fact from the report does
not “disprove the exact testimony of the witness” and, therefore, would not be admissible. It also
boggles the mind to think that Carrier’s statement in the police report that Traxler shot the victim
“execution style” would help Traxler’s self-defense argument in any way. Accordingly, this
objection will be overruled.
Traxler’s final objection is that he the R & R erred in recommending that a certificate of
appealability be denied. Traxler relies on his other objections—i.e., his argument that the R & R

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There are other admissibility questions related to Traxler’s claim. Not only does the police report present a
hearsay-within-hearsay issue, but also police reports are generally inadmissible hearsay on their own. See, e.g., In re
Forfeiture of a Quantity of Marijuana, 291 Mich. App. 243, 254, 805 N.W.2d 217, 223 (2011).

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did only a “cursory review” of the record and misunderstood his argument. This objection is
similarly without merit and will be overruled.
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 Traxler 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 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 Traxler’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 Traxler’s claims was debatable or wrong. Therefore, the Court
will deny Traxler a certificate of appealability.
Therefore,
IT IS HEREBY ORDERED that the magistrate judge’s Report and Recommendation
(ECF No. 27) is AFFIRMED AND ADOPTED as the Opinion of this Court and Petitioner’s
objections (ECF No. 31) are OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s Amended Petition for Writ of Habeas
Corpus (ECF No. 11) is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.

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IT IS FURTHER ORDERED that Petitioner’s motion for extension of time (ECF No.
28) is DENIED as moot.
A separate judgment will issue.

Dated: April 13, 2018

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

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