Goldman #590463 v. Bauman
ORDER ADOPTING REPORT AND RECOMMENDATION 35 : Petitioner's Objections 39 are OVERRULED and Petitioner's petition and certificate of appealability are DENIED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
ALEX L. GOLDMAN,
Case No. 2:09-CV-228
HON. GORDON J. QUIST
ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner, Alex Goldman, has filed Objections to the Report and Recommendation (“R &
R”) dated July 25, 2011, in which Magistrate Judge Greeley recommended that Petitioner’s habeas
petition be denied. Petitioner raised the following claims in his petition:
Trial counsel’s failure to file a reply to the prosecutor’s interlocutory
application for leave to appeal violated petitioner’s right to counsel at a
critical stage of the criminal process.
Prosecutor engaged in misconduct when he made certain comments during
closing arguments, depriving petitioner of a fair trial.
The magistrate judge considered both grounds and concluded that they lack merit. With regard to
Petitioner’s ineffective assistance of counsel claim, the magistrate judge concluded that Petitioner
failed to show a violation of his Sixth Amendment rights under Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984), as Petitioner failed to show both that counsel’s errors were so egregious
as to deprive him of counsel guaranteed by the Sixth Amendment and that the result would have
been any different had his counsel responded to the prosecutor’s appeal. (R & R at 6-7.) With
regard to the prosecutorial misconduct claim, the magistrate judge concluded that the Michigan
Court of Appeals resolution of this claim was not an unreasonable application of clearly established
Supreme Court precedent. Moreover, the magistrate judge concluded that Petitioner failed to show
that the prosecutor’s remarks denied him a fundamentally fair trial. (R & R at 9.)
Pursuant to 28 U.S.C. § 636(b)(1), upon receiving objections to a report and
recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” After
conducting a de novo review of the report and recommendation, Petitioner’s Objections, and the
pertinent portions of the record, the Court concludes that the report and recommendation should be
adopted and the petition denied.
Regarding his Sixth Amendment claim, Petitioner contends that his trial counsel’s failure
to respond to the prosecutor’s interlocutory application to appeal the trial court’s denial of the
prosecutor’s request to exercise a peremptory challenge constituted the absence of counsel at a
critical stage. The cases Petitioner cites, including United States ex rel. Thomas v. O’Leary, 856
F.2d 1011 (7th Cir. 1988), and Fields v. Bagley, 275 F.3d 478 (6th Cir. 2001), are inapposite to the
facts of this case. In both of those cases the petitioners were, in fact, totally without counsel at
critical stages of the criminal proceedings. In this case, as the Michigan Court of Appeals observed,
Petitioner was not totally denied counsel because the Michigan Court of Appeals informed defense
counsel of the deadline for responding to the prosecutor’s emergency interlocutory appeal and
defense counsel informed the court that he would not be responding. People v. Goldman, No.
268842, 2007 WL 2429877, at *2 (Mich. Ct. App. Aug. 28, 2007) (per curiam). The court noted
that while counsel could have responded with an argument, any such argument would have been
meritless. Thus, the court reasoned, counsel’s decision to not respond was a strategic decision, and
defense counsel could not have been ineffective for failing to raise a meritless argument. Id. at *3.
The court of appeals also explained that, in any event, petitioner could not demonstrate prejudice
because any argument that counsel might have made would have failed. Id. The Court concurs with
the magistrate judge that, under these circumstances, Petitioner has failed to meet the requirements
With regard to the prosecutorial misconduct claim, Petitioner must show that “the
prosecutor’s conduct affected the fairness of the trial.” United States v. Young, 470 U.S. 1, 11, 105
S. Ct. 1038, 1044 (1985). Petitioner has failed to show that the prosecutor’s remarks during closing
deprived him of a fair trial. As the magistrate judge observed, the prosecutor’s remarks merely
responded to specific arguments by defense counsel. The prosecutor may appropriately respond to
such arguments without denying the defendant a fair trial. See United States v. Tocco, 135 F.3d 116,
130 (2d Cir. 1998) (“[W]here the defense summation makes arguments and allegations against the
government, the prosecutor may respond to them in rebuttal.”). Here, the prosecutor responded to
defense counsel’s specific arguments regarding the evidence. This was not improper, and it did not
deprive Petitioner of a fair trial.
Under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio,
263 F.3d 466, 467 (6th Cir. 2001). Rather, the district court must “engage in a reasoned assessment
of each claim” to determine whether a certificate is warranted. Id. at 467. Each issue must be
considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473,
120 S. Ct. 1595 (2000). Murphy, 263 F.3d at 467. Therefore, the Court has considered Petitioner’s
claims, including his objections, under the Slack standard.
Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to warrant a grant of the certificate, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” For the reasons stated above, the Court finds that
reasonable jurists could not find that this Court’s denial of Petitioner’s claims was debatable or
wrong. Thus, the Court will deny Petitioner a certificate of appealability. Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation
issued July 25, 2011 (docket no. 35) is APPROVED AND ADOPTED as the Opinion of this Court,
and Petitioner’s Objections (docket no. 39) are OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s habeas corpus petition is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED by this Court.
A separate judgment will issue.
Dated: November 7, 2011
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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