Erdman #156702 v. Metrish

Filing 19

OPINION ADOPTING REPORT AND RECOMMENDATION 17 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

L Y N N W. ERDMAN, P e titio n e r, v. LINDA M. METRISH, R e sp o n d e n t. _________________________________/ O P I N IO N ADOPTING REPORT AND RECOMMENDATION T h is is a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. The matter was ref erred to the Magistrate Judge, who issued a Report and Recommendation ("R&R"), rec o m m en d in g that this Court deny the petition (docket #17). The matter presently is before the Court on Petitioner's objections to the R&R (docket #18). T h i s Court reviews de novo those portions of an R&R to which specific objections are m a d e . 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court may accept, reject or modify a n y or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1). In his habeas application, Petitioner raised a single claim: he was deprived of due p ro c e ss by the imposition of an excessive sentence based on untrue material that resulted in in c o rre c t sentence scoring under the statutory sentencing guidelines. The Magistrate Judge th o r o u g h ly discussed the issue and recommended that the petition be denied on the merits. In his objections, Petitioner fails to address any portion of the R&R, much less to identify F I L E NO. 2:06-CV-225 H O N . ROBERT HOLMES BELL

s p e c if ic errors in the R&R. He therefore has waived his objections. See Miller v. Currie, 50 F .3 d 373, 380 (6th Cir. 1995) ("[A] general objection to a magistrate's report, which fails to s p e c if y the issues of contention, does not satisfy the requirement that an objection be filed. T h e objections must be clear enough to enable the district court to discern those issues that a r e dispositive and contentious.") H a v in g reviewed the analysis of the R&R and finding no error, the Court hereby d e n ies Petitioner's objections and adopts the Report and Recommendation of the Magistrate J u d g e as the opinion of the Court. Under 28 U.S.C. § 2253(c)(2), the Court also must determine whether a certificate of a p p e ala b ility should be granted. A certificate should issue if Petitioner has demonstrated a "s u b sta n tial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Sixth C irc u it Court of Appeals has disapproved issuance of blanket denials of a certificate of a p p e a la b ility. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "e n g a g e in a reasoned assessment of each claim" to determine whether a certificate is w a rra n te d under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 4 7 3 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined Petitioner's c la im under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the certificate, "[t]he petitioner m u s t demonstrate that reasonable jurists would find the district court's assessment of the c o n s titu t io n a l claims debatable or wrong." Id. "A petitioner satisfies this standard by

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d e m o n s tra tin g that . . . jurists could conclude the issues presented are adequate to deserve e n c o u r a g e m e n t to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In a p p lyin g this standard, the court may not conduct a full merits review, but must limit its e x a m in a tio n to a threshold inquiry into the underlying merit of petitioner's claim. Id. The Court finds that reasonable jurists could not conclude that this Court's dismissal o f Petitioner's claim was debatable or wrong. Therefore, the Court will deny Petitioner a c e rtif ic a te of appealability. A judgment consistent with this opinion shall be entered.

Dated: June 18, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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