Blackwell #731599 v. Parish

Filing 18

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 12 ; Petitioner's Motion to Amend 15 is GRANTED to the extent Petitioner seeks to supplement his Objection, and DENIED in all other respects. Petitioner's Petition for Writ of Habeas Corpus 1 is DISMISSED; and Petitioner is DENIED a certificate of appealability; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JERRY ALLEN BLACKWELL,
Petitioner,
CASE No. 1:18-CV-251
v.
HON. ROBERT J. JONKER
LES PARISH,
Respondent.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Green’s Report and Recommendation (ECF No.
12) and Petitioner’s Objection to the Report and Recommendation (ECF No. 13) and his motion
to amend (ECF No. 15).

Under the Federal Rules of Civil Procedure, where, as here, a party has

objected to portions of a Report and Recommendation, “[t]he district judge . . . has a duty to reject
the magistrate judge’s recommendation unless, on de novo reconsideration, he or she finds it
justified.” 12 WRIGHT, MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at
381 (2d ed. 1997).

Specifically, the Rules provide that:

The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge
with instructions.
FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge.

Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).

The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the

Report and Recommendation itself; and Petitioner’s objections.

After its review, the Court finds

the Magistrate Judge correctly concluded that Petitioner is not entitled to habeas corpus relief.
The Magistrate Judge recommends denial of Petitioner’s habeas petition.

In his

objections, Petitioner primarily reiterates and expands upon arguments presented in his original
brief. Indeed, he begins his Objections by stating that he “object[s] to the Magistrate’s Report and
Recommendation for the reasons set forth” in his earlier filed brief. (ECF No. 13, PageID.1598).
Nonspecific and general objections, which incorporate by reference arguments raised in previous
briefs, generally will not provide the specificity required for this court to perform a de novo
review. See Neuman v. Rivers, 125 F.3d 315, 322–23 (6th Cir.1997); Kelly v. Withrow, 25 F.3d
363, 366 (6th Cir. 1994); see also Curry v. City of Mansfield Ohio/Wastewater Treatment Plant,
No. 98–3518, 201 F.3d 440, at * 1 (6th Cir. Dec.8, 1999) (per curiam) (unpublished table opinion)
(“The plaintiff's general objections do not even identify the plaintiff's specific claims, much less
the factual findings or legal conclusions to which she objected. The ‘incorporation’ of the
plaintiff's brief in opposition to summary judgment did not assist the district court, as the court
specifically noted.”).
After a careful review of Plaintiff’s Objection and motion to amend, the Court finds that
Petitioner raises only two specific objections.

He first challenges the Magistrate Judge’s

recommendation relating to a portion of his tenth ground for relief, namely, that his trial counsel
rendered erroneous advice regarding his sentencing exposure if he accepted the prosecution’s plea
offer and his exposure if he elected to proceed to trial.

Secondly, in a motion to amend his

Objection (ECF No. 15) Petitioner objects that the Magistrate Judge erred in finding that his trial
counsel did not render ineffective assistance by failing to request a jury instruction on a lesser
included offense.

2

Even in these specific objections, Petitioner’s objections fail to deal in a meaningful or
persuasive way with the Magistrate Judge’s analysis.

The Court finds, on de novo review, the

Magistrate Judge carefully and thoroughly considered the evidentiary record, the parties’
arguments, and the governing law.

The Magistrate Judge properly analyzed Petitioner’s claims.

Even if Petitioner’s factual view is accepted, the rationale and analysis in the Report and
Recommendation remains sound.
With respect to Petitioner’s contention that he received ineffective assistance when his
counsel failed to request a lesser included offense, the Magistrate Judge accurately described the
applicable law.

The petitioner bears the burden of overcoming the presumption that the

challenged action might be considered sound trial strategy. Strickland v. Washington, 466 U.S.
668, 687-88 (1984) (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United
States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel’s strategic decisions were hard to
attack). The court must determine whether, in light of the circumstances as they existed at the
time of counsel’s actions, “the identified acts or omissions were outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690. And as the Magistrate Judge
also correctly recognized, when a federal court reviews a state court’s application of Strickland
under § 2254(d), the deferential standard of Strickland is “doubly” deferential. Harrington v.
Richter, 562 U.S. 86, 105 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
Applying the Strickland standard, the Michigan Court of Appeals thoroughly addressed
the issue, and concluded that Petitioner had failed to meet the heavy burden of showing that his
attorney’s performance was ineffective.

The Magistrate Judge found the “all or nothing”

strategy that was identified in the Court of Appeals’ decision amounted to a reasonable argument
that counsel satisfied the requirements of Strickland. (EF No. 12, PageID.1568). In his motion

3

to amend, Petitioner objects that he disagreed with his counsel’s strategy and that it was sprung
on him at the last moment, just prior to trial. Even if true, this does not demonstrate the Michigan
Court of Appeal’s application of Strickland was unreasonable. Disagreement with counsel’s
strategic decisions alone is not a basis for establishing ineffective assistance of counsel. “A
strategic decision cannot be the basis for a claim of ineffective assistance unless counsel’s
decision is shown to be so ill-chosen that it permeates the entire trial with obvious unfairness.”
Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001). Here, as the Magistrate Judge
observed, Petitioner had the opportunity to plead guilty to the lesser charge, and elected not to
pursue that option. On this record, Petitioner falls far short of meeting the doubly deferential
Strickland standard.
Petitioner contends in his last objection that his trial counsel rendered ineffective
assistance by erroneously advising him about his sentencing exposure. The Magistrate Judge
found that it was questionable whether counsel even erred in the plea process, but even if counsel
did, Petitioner could not show that the trial court’s rejection of his claim was an unreasonable
application of Strickland. The Court agrees.
Petitioner argues that his counsel advised him that if he elected to go to trial the bottom
end of his guideline range was only a little more than the guideline range that was being offered
by the prosecution. Later, following his conviction after a jury trial, Petitioner realized this gap
was larger. Petitioner cannot establish an ineffective assistance of counsel claim because he
cannot establish prejudice. Petitioner contends in his petition and reply brief that based on
counsel’s assertions he rejected the plea offer. But nowhere does Petitioner allege that he would
have pleaded guilty had his counsel advised him of the correct sentencing range. (See ECF
No. 1, PageID.57-60; ECF No. 9, PageID.1514-1517). Thus Petitioner has not even attempted to

4

satisfy the second Strickland prong. Beyond that, however, the Court agrees, on de novo review,
with the Magistrate Judge that “counsel’s inaccurate prediction of the sentencing guideline range,
standing alone, does not constitute ineffective assistance of counsel (ECF No. 12, PageID.1592
(citing United States v. Awad, No. 91-1856, 1992 WL 354084, at *1 (6th Cir. Nov. 30, 1992)).
That being all that Petitioner has raised here, the Court agrees with the Magistrate Judge that
Petitioner has not made out a claim for ineffective assistance of counsel. Accordingly, the Court
concludes that Petitioner is not entitled to federal habeas relief, for the very reasons detailed in
the Report and Recommendation of the Magistrate Judge.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner may not
appeal in a habeas corpus case unless a circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1). The Federal Rules of Appellate Procedure extend to district judges the
authority to issue certificates of appealability.

FED. R. APP. P. 22(b); see also Castro v. United

States, 310 F.3d 900, 901-02 (6th Cir. 2002) (the district judge “must issue or deny a [certificate
of appealability] if an applicant files a notice of appeal pursuant to the explicit requirements of
Federal Rule of Appellate Procedure 22(b)(1)”). However, a certificate of appealability may be
issued “only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2).
To obtain a certificate of appealability, Petitioner must demonstrate that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.”
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). While Petitioner is not required to establish that “some jurists would grant the petition
for habeas corpus,” he “must prove ‘something more than an absence of frivolity’ or the existence
of mere ‘good faith.’” Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In this case,

5

Petitioner has not made a substantial showing of the denial of a constitutional right. Therefore,
he is not entitled to a certificate of appealability.
The Magistrate Judge properly concluded that Petitioner is not entitled to the habeas corpus
relief he seeks.

Petitioner is not entitled to a certificate of appealability.

Accordingly, IT IS ORDERED that the Report and Recommendation of the Magistrate
Judge (ECF No. 12) is APPROVED AND ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that:
1.

Petitioner’s Motion to Amend (ECF No. 15) is GRANTED to the extent Petitioner
seeks to supplement his Objection, and DENIED in all other respects.

2.
2.

Dated:

Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1) is DISMISSED; and
Petitioner is DENIED a certificate of appealability.

March 3, 2020

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

6