Harris #447304 v. McQuiggin

Filing 51

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 44 ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

ISSAC DECRAIS HARRIS, #447304,
Petitioner,

Case No. 2:08-cv-198

v.

Honorable R. Allan Edgar

GREG MCQUIGGIN,
Respondent.
/

ORDER APPROVING AND ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On June 3, 2011, United States Magistrate Judge Timothy P. Greeley issued a report
and recommendation (“R&R”) recommending that Petitioner Issac Decrais Harris’s petition
for writ of habeas corpus be denied. Doc. No. 44. After being granted an extension of time,
Harris filed an objection to the R&R on July 25, 2011. Doc. No. 49.
This Court is required to make a de novo determination of those specific portions of
the R&R to which objections have been filed, and may accept, reject, or modify any or all
of the Magistrate Judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b).
The majority of Harris’s objections focus on his efforts to include new evidence that
Magistrate Judge Greeley was not able to consider. Specifically, Harris asks the Court to
consider the affidavit of Melissa Moore, the affidavits of two other alibi witnesses, a letter
from the Lenawee County Clerk, and copies of subpoenas that do not carry an indication

of having been actually served. See Doc. No. 49, pp. 5-6. At the end of his objections,
Harris notes several other documents that he has attached as “new evidence.” Doc. No.
49, pp. 31-32. As the Sixth Circuit has explained,
Courts have held that while the Magistrate Judge Act, 28 U.S.C.
§ 631 et seq., permits de novo review by the district court if
timely objections are filed, absent compelling reasons, it does
not allow parties to raise at the district court stage new
arguments or issues that were not presented to the magistrate.
Murr v. United States, 200 F.3d 895, 901 n.1 (6th Cir. 2000), citing, inter alia, United States
v. Waters, 158 F.3d 933, 936 (6th Cir. 1998); cf. Coleman v. Dahlstrom, 2006 WL 644477,
*1 (W.D. Mich. Mar. 9, 2006) (Edgar, J.) (“It is inappropriate to offer new evidence at the
time objections are filed and to argue that the Magistrate Judge erred in his
recommendation.”). The Court will therefore not consider this new evidence, or Harris’s
arguments based on this new evidence, in its review of Harris’s objections.
After performing a de novo review of those portions of the R&R to which the
remaining objections have been made, the Court finds the objections to be without merit.
Harris objects to Magistrate Judge Greeley’s finding that Harris’s ineffective assistance of
counsel claim was without merit. Specifically, Harris argues that his attorney was ineffective
for failing to object to the identification testimony of the witness who identified him because
the setting of the preliminary examination, where the identification took place, was
inherently suggestive. Doc. No. 49, pp. 24, 28. Harris points to the fact that he was
wearing a jumpsuit at the time of the identification, and to the fact that he was the only black
person in the courtroom at the time. Id. at p. 24. The Court finds that Harris’s objection
lacks merit, as this evidence is insufficient to overcome the presumption that trial counsel’s
performance constituted sound trial strategy.

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Harris’s remaining objections merely reassert the allegations set forth in Harris’s
petition. The Court agrees with Magistrate Judge Greeley’s findings with regard to each of
Harris’s claims.
The Court also agrees with Magistrate Judge Greeley that reasonable jurists could
not find that a dismissal of each of Harris’s claims was debatable or wrong. Therefore,
Harris is denied a certificate of appealability.
For the reasons stated above, it is ordered that Harris’s objections to the R&R [Doc.
No. 49] are OVERRULED. It is further ordered that Magistrate Judge Greeley’s June 3,
2011 R&R [Doc. No. 44] is APPROVED and ADOPTED as the opinion of the Court.
Harris’s petition shall be DISMISSED WITH PREJUDICE.
A judgment consistent with this Order will be entered.

Dated:

9/30/2011

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge

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