Braun #862342 v. Palmer

Filing 24

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 18 ; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

Case 1:17-cv-01129-JTN-SJB ECF No. 24 filed 04/16/20 PageID.1594 Page 1 of 3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RANDY LANCE BRAUN,
Petitioner,
Case No. 1:17-cv-1129
v.
HON. JANET T. NEFF
CARMEN PALMER,
Respondent.
____________________________/

OPINION AND ORDER
This is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The matter was referred
to the Magistrate Judge, who issued a Report and Recommendation (R&R) recommending that
this Court deny the petition as “meritless.” The matter is presently before the Court on Petitioner’s
objections to the Report and Recommendation. In accordance with 28 U.S.C. § 636(b)(1) and
FED. R. CIV. P. 72(b)(3), the Court has performed de novo consideration of those portions of the
Report and Recommendation to which objections have been made.

The Court denies the

objections and issues this Opinion and Order. The Court will also issue a Judgment in this § 2254
proceeding. See Gillis v. United States, 729 F.3d 641, 643 (6th Cir. 2013) (requiring a separate
judgment in habeas proceedings).
Petitioner’s first three objections relate to the Magistrate Judge’s alleged misclassification
of Juror Sare as a “biased” juror (ECF No. 22 at PageID.1581-1585). Petitioner argues that he set
forth in his petition that both Juror Henderson and Juror Sare were “incapable of being impartial,”
but that he never claimed that Juror Sare was “biased” (id. at PageID.1582-1583). However, these
terms are essentially synonymous in this case. See also Miller v. Webb, 385 F.3d 666, 673 (6th

Case 1:17-cv-01129-JTN-SJB ECF No. 24 filed 04/16/20 PageID.1595 Page 2 of 3

Cir. 2004) (“Actual bias is ‘bias in fact’—the existence of a state of mind that leads to an inference
that the person will not act with entire impartiality.”) (internal quotations omitted). The Magistrate
Judge conducted a proper analysis addressing Petitioner’s arguments that both jurors were
incapable of being impartial and concluded that Petitioner failed to meet his burden of proof (ECF
No. 18 at PageID.1567). Petitioner has not demonstrated any factual or legal error in the
Magistrate Judge’s analysis or conclusion. The objections are therefore denied.
In his last objection, Petitioner argues that the Magistrate Judge erred by assuming that
Petitioner’s claims were defaulted (ECF No. 22 at PageID.1585-1586). However, other than his
conclusory statement, Petitioner fails to address any portion of the Report and Recommendation
(id.). Petitioner’s general statement of disagreement does not adequately identify his issues of
contention with the Report and Recommendation and does not provide a proper basis for review
by this Court. See Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (“The parties have ‘the
duty to pinpoint those portions of the magistrate’s report that the district court must specially
consider.’”) (citation omitted); Miller v. Curie, 50 F.3d 373, 380 (6th Cir. 1995) (“objections must
be clear enough to enable the district court to discern those issues that are dispositive and
contentious”). This objection is therefore also denied.
Having determined Petitioner’s objections are properly denied, the Court must further
determine pursuant to 28 U.S.C. § 2253(c) whether to grant a certificate of appealability as to the
issues raised. See RULES GOVERNING § 2254 CASES, Rule 11 (requiring the district court to “issue
or deny a certificate of appealability when it enters a final order”). The Court must review the
issues individually. Slack v. McDaniel, 529 U.S. 473 (2000); Murphy v. Ohio, 263 F.3d 466, 46667 (6th Cir. 2001).

Upon review under the applicable standards, the Magistrate Judge

recommended that a certificate of appealability be denied (R&R, ECF No. 18 at PageID.1568).

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This Court concurs with that recommendation and concludes that reasonable jurists would not find
the Court’s assessment of Petitioner’s issues debatable or wrong. A certificate of appealability will
therefore be denied. Accordingly:
IT IS HEREBY ORDERED that the Objections (ECF No. 22) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 18) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the petition for habeas corpus relief (ECF No. 1) is
DENIED for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that a certificate of appealability pursuant to 28 U.S.C.
§ 2253(c) is DENIED as to each issue asserted.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: April 16, 2020

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