McCullough #253167 v. McQuiggin

Filing 53

MEMORANDUM AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 51 ; 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

COREY DEMARION MCCULLOUGH,
Petitioner,

Case No. 2:10-cv-86

v.

Honorable R. Allan Edgar

GREG MCQUIGGIN,
Respondent.
/

MEMORANDUM AND ORDER
On April 10, 2013, U.S. Magistrate Judge Greeley entered a Report and
Recommendation (“R&R”) recommending that Petitioner’s habeas petition be dismissed
with prejudice. Doc. No. 51. Petitioner has filed objections to the R&R. Doc. No. 52. This
Court is required to make a de novo determination of those 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).
In his objections, Petitioner states the following:
This Court should reject the R&R and grant the relief sought in
this case due to the infirmity of the conviction based on the trial
Court improperly removing a deliberating juror, the lone hold-out
for acquittal, without inquiry of that juror on allegations of her
failure to participate, especially in light of evidence that the juror
had articulated reasons, based on defense witnesses and
argument, for her views.
Petitioner Corey McCullough urges this Court to follow the well
stated and factually supported rationale of Judge Helene White
in her dissenting [Michigan Court of Appeals] opinion. That
opinion deals with important factual issues that were either

ignored by the Michigan Court of Appeals and/or by the
Magistrate, to wit: there is nothing in the record to support the
claim that the juror refused to participate in the process, there
is nothing in the record supporting the claim that the juror
wanted to be replaced, there is nothing in the record to support
the conjecture that the juror requested an alternate to replace
her and most importantly, that the trial court knew this juror was
the lone holdout.
Doc. No. 52, p. ID 386 (internal footnote omitted).
Petitioner argues that his habeas petition should be granted because the trial court
improperly removed a deliberating juror. Petitioner asserts that the juror had called in sick
for the day, but had not indicated that she would no longer serve as a juror. He further
asserts that the trial court improperly failed to question the juror before replacing her.
Finally, Petitioner asserts that Magistrate Judge Greeley failed to address the issue that the
trial court was aware that the juror was the lone hold-out in the deliberations who refused
to convict Petitioner. Petitioner quotes extensively from the dissenting opinion of Judge
Helene White, a Sixth Circuit Judge who was on the Michigan Court of Appeals panel, in
support of his arguments.
In addressing the issue of the replacement of juror 13, Magistrate Judge Greeley
quoted from the Michigan Court of Appeals opinion, which found that the trial court had not
abused its discretion in replacing juror 13. Magistrate Judge Greeley further addressed the
issue that juror 13 was the lone hold-out juror, stating the following:
It is clear that the [Michigan Court of Appeals’] dissenting
opinion is based upon the fact that Juror 13 was the lone hold
out juror. However, that fact alone cannot be the basis for
determining whether the trial court erred in dismissing the juror.
It is clear that the trial court had the authority to remove the
juror and nothing in the record supports the conclusion that the
removal was based upon the juror’s view of the evidence in the
case.

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Doc. No. 51, pp. ID 371-72. Magistrate Judge Greeley concluded by stating the following:
Petitioner has failed to show that his constitutional rights were
violated by the removal of Juror 13. This court cannot grant a
habeas petition when the lower court’s ruling is reasonable
based upon Supreme Court law and the facts of the case, even
if another outcome might arguably be considered reasonable.
Accordingly, it is the opinion of the undersigned that the
Michigan Court of Appeals’ decision did not result in a decision
that was contrary to, or involved an unreasonable application of,
clearly established federal law as determined by the Supreme
Court of the United States; or resulted in a decision that was
based upon an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding.
Id., p. ID 372.
This Court agrees with Magistrate Judge Greeley’s analysis of this issue. This Court
has reviewed the record, and finds that it was not an unreasonable determination of the
facts for the Michigan Court of Appeals to conclude: that the trial court had not removed a
willing juror; and that it was not an abuse of discretion for the trial court to replace the juror
without questioning her. After reviewing the record, the Court further agrees with Magistrate
Judge Greeley’s finding that nothing in the record supports the conclusion that the removal
was based upon the juror’s view of the evidence in the case.
Petitioner’s objections to the R&R [Doc. No. 52] are without merit and are DENIED.
Magistrate Judge Greeley’s R&R [Doc. No. 51] is APPROVED and ADOPTED as the
opinion of the Court pursuant to 28 U.S.C. § 636(b)(1) and W.D. Mich. L. Civ. R. 72.3(b).
The petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 is DENIED and
DISMISSED WITH PREJUDICE.
If Petitioner files a notice of appeal, it will be treated as an application for a certificate
of appealability which shall be DENIED pursuant to 28 U.S.C. § 2253(c)(2); Fed. R. App.

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P. 22(b)(1); and Slack, 529 U.S. at 484. Reasonable jurists could not find that this decision
to dismiss Petitioner’s claims is debatable or wrong.
A Judgment consistent with this Memorandum and Order will be entered.
SO ORDERED.

Dated:

9/25/2013

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

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