Nelson #417348 v. Trierweiler

Filing 23

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 20 ; Petitioner's Petition for Writ of Habeas Corpus 1 is dismissed; Petitioner is denied a certificate of appealability ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

Case 1:18-cv-00709-RJJ-PJG ECF No. 23 filed 06/01/20 PageID.1780 Page 1 of 3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CORY NELSON,
Petitioner,
CASE No. 1:18-CV-709
v.
HON. ROBERT J. JONKER
TONY TRIERWEILER,
Respondent.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Green’s Report and Recommendation (ECF No.
20) and Petitioner’s Objection to the Report and Recommendation (ECF No. 21).1

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.

Petitioner’s Objections were docketed well after the fourteen-day objection period under 28
U.S.C. § 636(b)(1)(C) closed. However, there is reason to believe this was through no fault of
Petitioner. Rather, it appears Petitioner’s Objections were mailed in time under the prison
mailbox rule, and the mailing was mistakenly held in the Post Office for a time before eventual
delivery to the Court. Thus, the Court considers Petitioner’s Objections as having been timely
submitted.
1

Case 1:18-cv-00709-RJJ-PJG ECF No. 23 filed 06/01/20 PageID.1781 Page 2 of 3

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.

Petitioner’s Objection with respect to the sufficiency of the evidence on his state

convictions quarrels with inferences the jury could fairly make under the law. These arguments
were thoroughly considered by the Magistrate Judge and properly rejected. As for the remaining
contentions in Petitioner’s Objection, the Court is satisfied, on de novo review, that the Magistrate
Judge properly applied the law.

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).

2

Case 1:18-cv-00709-RJJ-PJG ECF No. 23 filed 06/01/20 PageID.1782 Page 3 of 3

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,

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.
2.

Dated:

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

June 1, 2020

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

3