Davis #211106 v. Sherry

Filing 25

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 20 , denying Certificate of Appealability; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, sdb)

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

C A R L O S HENRY DAVIS, Petitioner, C a se No. 2:07-CV-106 v. HON. ROBERT HOLMES BELL J E R I-A N N SHERRY, R e sp o n d e n t. / O R D E R APPROVING AND ADOPTING REPORT AND RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS O n November 19, 2009, Magistrate Judge Timothy P. Greeley issued a Report and R e c o m m e n d a tio n ("R&R") recommending that Petitioner Carlos Henry Davis's § 2254 p etitio n for writ of habeas corpus be denied. (Dkt. No. 20.) This matter is before the Court o n Petitioner's objections to the R&R. (Dkt. No. 23.)

This Court is required to make a de novo review upon the record of those portions of the R&R to which specific objections have been made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) ("[A] general objection to a magistrate's report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious."). Although the Magistrate Judge's R&R is reviewed de novo, this Court must review the state

court proceedings consistent with the standards set forth in 28 U.S.C. § 2254.
P e titio n e r objects to the R&R's recommendation on all five issues raised in his p e titio n . As to Issues I and II, Petitioner objects to the Magistrate Judge's conclusion that h e cannot show prejudice for his procedural default. Petitioner's objection lacks merit. The R & R correctly determined not only that the record does not support a finding of prejudice, b u t also that the record does not support a finding that the trial court violated Petitioner's c o n s titu tio n a l rights during the trial. As to Issue III, Petitioner contends that the Magistrate Judge bypassed consideration o f Petitioner's claim that the trial court abused its discretion by failing to give two requested i n s t r u c t i o n s . When the Magistrate Judge's analysis of Issue III is read in its entirety, it is c le a r that the Magistrate Judge's conclusion that the evidence was sufficient to justify the instruction s given included a determination that there was not sufficient evidence to support th e two requested instructions. The Court agrees with this determination. Although Petitioner objects to the Magistrate Judge's conclusion as to Issue IV, P e titio n e r has not shown how the trial court's alleged violation of the state's evidentiary rules g i v e s rise to federal habeas corpus relief. The Court agrees with the R&R that because P e titio n e r has not shown that the admission of his larceny conviction as impeachment e v id e n c e violated his constitutional rights, he has failed to present a cognizable ground for f e d e ra l habeas relief. See Coburn v. Howes, 100 F. App'x 328, 329 (6th Cir. 2004) ("Federal h a b e a s corpus relief is only warranted where a violation of a state's evidentiary rule results

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in the denial of fundamental fairness and, therefore, a violation of due process."). As to Issue V, Petitioner objects to the Magistrate Judge's conclusion that the e v id e n c e was sufficient to support his conviction. In support of this objection Petitioner c o n te n d s that the evidence supported a self-defense finding. Even if, as Petitioner asserts, th e evidence supports a self-defense finding, "the due process `sufficient evidence' guarantee d o e s not implicate affirmative defenses, because proof supportive of an affirmative defense c a n n o t detract from proof beyond a reasonable doubt that the accused had committed the re q u is ite elements of the crime." Caldwell v. Russell 181 F.3d 731, 740 (6th Cir. 1999); see a ls o Booth v. Carlton, No. 95-6448, 1997 WL 135495, at *2 (6th Cir. Mar. 24, 1997) (u n p u b lis h e d ) (holding that the petitioner's challenge to the sufficiency of the evidence on th e basis that he acted in self-defense was without merit because "the due process guarantee o f sufficiency of the evidence extends only to facts needed to establish the elements of the crim e and not to the state's burden to prove the absence of an affirmative defense"). A c c o rd in g ly, upon de novo review, I T IS HEREBY ORDERED that Petitioner's objections to the Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 23) are OVERRULED. I T IS FURTHER ORDERED that the November 24, 2009, Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 20) is APPROVED and ADOPTED a s the opinion of the Court. I T IS FURTHER ORDERED that Petitioner's petition for writ of habeas corpus

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(Dkt. No. 1) is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 28 U .S .C . § 2253(c); Slack v. McDaniel, 529 U.S. 473 (2000).

D a ted :

August 16, 2010

/s/ Robert Holmes Bell ROBERT HOLMES BELL U N IT E D STATES DISTRICT JUDGE