Cantley #378184 v. Bauman
OPINION ADOPTING REPORT AND RECOMMENDATION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
Cantley #378184 v. Bauman
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 2:10-CV-154
HON. GORDON J. QUIST
OPINION ADOPTING REPORT AND RECOMMENDATION
Petitioner, Aaron Cantley, has filed an Objection (docket no. 112) to Magistrate Judge
Timothy P. Greeley’s Report and Recommendation (R & R) issued April 19, 2013 (docket no. 98).
The R & R recommends that this Court deny Cantley’s habeas corpus petition and deny Cantley a
certificate of appealability. When a party properly objects to any part of a magistrate judge’s
proposed disposition, this Court must review the disposition de novo. Fed. R. Civ. P. 72(b)(3).
After conducting a de novo review of the R & R, Cantley’s objections, and the pertinent portions
of the record, the Court concludes that the R & R should be adopted as the Opinion of the Court.
However, the Court will address two additional objections presented in Cantley’s supplements to
his petition not explicitly addressed in the R & R.
I. Cantley’s Objections
Cantley presents his objections in two parts: first, he makes two specific objections (see
docket no. 112, Page ID 913–17), and, second, he restates each of his original arguments from his
petition. The second section of Cantley’s Objection fails to articulate specific objections to the
magistrate judge’s analysis. The Sixth Circuit has held that “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.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)
(citing Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508–09 (6th Cir. 1991)); see also
Fed. R. Civ. P. 72(b)(2) (requiring “specific written objections to the proposed findings and
recommendations”). The Court will address Cantley’s specific objections in the first part of his
Objection, but finds Cantley’s blanket recitation of his petition arguments in the second part of his
Objection insufficient for the Court “to discern those issues that are dispositive and contentious.”
Miller, 50 F.3d at 380.
A. Supplemental Filings
Cantley’s first objection is that the R & R fails to address his supplemental filings to his
petition. (Pet’r’s Objection, Docket no. 112, Page ID 916.) Cantley is correct that the R & R does
not explicitly specify whether it considered Cantley’s petition as amended. Cantley filed multiple
motions to amend his habeas petition (see docket nos. 11, 26, 62, 79, & 94), which the Court granted
(see docket nos. 15, 67, 77, 86 & 97). The Court has reviewed Cantley’s supplemental filings
(including docket nos. 12, 26, 27, 58, 62, 70, 73, 79, 87, 88, 91, 94 & 99). The Court interprets these
amendments to present two new ineffective assistance of trial counsel claims, which the Court will
1. Constructive Denial of Counsel
First, Cantley argues that he was constructively denied effective counsel because his first
trial counsel, Charles Desottelle—who represented Cantley prior to trial—failed to fully investigate
a defense, talk to witnesses, file necessary motions, or request extensions for the preliminary
examination and other proceedings. (Docket no. 26, Page ID 163.)
Cantley raises this argument for the first time in his habeas petition. A habeas petitioner is
required to present all of his habeas claims to the state courts prior to presenting them in a federal
habeas petition. Title 28 U.S.C. Section 2254 states:
An application for writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it appears that–
the applicant has exhausted the remedies available in the courts of the
(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect
the rights of the applicant.
28 U.S.C. § 2254(b)(1). For a petitioner to exhaust his available state-court remedies, the state court
must have “had a fair opportunity to consider the . . . claim and to correct that asserted constitutional
defect in respondent’s conviction.” Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 513 (1971).
The petitioner bears the burden of proving that he has exhausted his state remedies before filing a
federal habeas petition, or that he satisfies an exception to the exhaustion requirement. See Darr
v. Burford, 339 U.S. 200, 218–19, 70 S. Ct. 587, 597–98 (1950), overruled in part on other grounds
by Fay v. Noia, 372 U.S. 391, 435, 83 S. Ct. 822, 847 (1963). “[O]rdinarily, a state prisoner does
not ‘fairly present’ a claim to a state court if that court must read beyond a petition or a brief (or a
similar document) that does not alert it to the presence of a federal claim.” Baldwin v. Reese, 541
U.S. 27, 32, 124 S. Ct. 1347, 1351 (2004). To exhaust a federal habeas claim, a petitioner must
properly raise the claim at each appropriate level of state court, id. at 29, 124 S. Ct. at 1349, and
raise the claim in a procedurally correct manner that allows for a review of the issue on the merits,
including by the state’s highest court, Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 1060
In this case, Cantley has failed to properly present his constructive denial of counsel claim
to the state court. As such, this Court is barred from considering his claim. Moreover, Cantley’s
claim is procedurally defaulted to the extent that he has failed to “demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991).
“[P]rocedural default results where three elements are satisfied: (1) the petitioner failed to
comply with a state procedural rule that is applicable to the petitioner’s claim; (2) the state courts
actually enforced the procedural rule in the petitioner’s case; and (3) the procedural forfeiture is an
‘adequate and independent’ state ground foreclosing review of a federal constitutional claim.”
Willis v. Smith, 351 F.3d 741, 744 (6th Cir. 2003).
All three elements of procedural default are satisfied with respect to Cantley’s constructive
denial of counsel claim. First, when Cantley appealed his conviction to the Michigan Court of
Appeals, he failed to fairly present a constructive denial of counsel claim. See People v. Cantley,
No. 260761, 2006 WL 2924663 (Mich. App. Oct. 12, 2009); see also Def.-Appellant’s Br. on
Appeal, Feb. 13, 2006 (Docket no. 49). Cantley also failed to raise constructive denial of counsel
in his motion for relief from judgment, pursuant to Michigan Court Rule 6.500. (Def.’s Br. for
Delayed Appl. for Leave to Appeal, Docket no. 51.) Second, the Michigan court rule that requires
that an issue be properly presented before the reviewing court is well-established and regularly
followed. See, e.g., Mitcham v. City of Detroit, 355 Mich. 182, 203, 94 N.W.2d 388, 399 (1959);
People v. Waclawski, 286 Mich. App. 634, 679, 780 N.W.2d 321, 352 (2009); Mich. Ct. Rule
7.212(C)(7) (“As to each issue, the argument must include a statement of the applicable standard
or standards of review and supporting authorities. Facts stated must be supported by specific page
references to the transcript, the pleadings, or other document or paper filed with the trial court.”).
Third, procedural forfeiture is an adequate and independent state ground. See, e.g., Munson v.
Kapture, 384 F.3d 310, 314–15 (6th Cir. 2004).
To overcome procedural default, Cantley must establish “cause” for failure to follow state
procedure, and “actual prejudice” as a result of the alleged violation of federal law, or demonstrate
that this Court’s failure to consider Cantley’s claim will result in a fundamental miscarriage of
justice. Coleman, 501 U.S. at 750, 111 S. Ct. at 2565. Cantley has not established cause, actual
prejudice, or a fundamental miscarriage of justice. Cantley has not presented any explanation for
his failure to raise his constructive denial of counsel argument prior to filing a federal habeas
petition. As such, this Court cannot grant Cantley’s habeas petition on the basis of his constructive
2. Conflict of Interest
Second, Cantley alleges that his second trial counsel, Gene Turnwald, should have been
disqualified from representing Cantley due to a conflict of interest. Specifically, Cantley argues that
because Turnwald previously worked as an assistant to the prosecuting attorney, Michael Ferency,
his representation of Cantley violated Cantley’s Sixth Amendment right to counsel. Cantley did not
raise this issue before the state courts on direct appeal or in his motion for relief from judgment.
Thus, for the same reasons as above, Cantley’s new arguments are not exhausted, as required by 28
U.S.C. § 2254(b), and they are procedurally defaulted. Cantley has not offered any explanation for
his failure to raise this issue prior to his federal habeas petition.
Even if the Court were to consider the merits of Cantley’s argument, it would not grant
Cantley’s petition. Criminal defendants are entitled to the undivided loyalty of competent counsel.
Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065 (1984); Cuyler v. Sullivan, 446
U.S. 335, 346, 100 S. Ct. 1708, 1717 (1980). However, the possibility of a conflict of interest does
not necessarily infringe on a defendant’s constitutional rights. See, e.g., Cuyler, 446 U.S. at 346–47,
100 S. Ct. at 1717. Rather, the defendant must show that an actual conflict of interest existed and
the conflict prejudiced counsel’s performance. Id. at 348, 100 S. Ct. at 1718. The Sixth Circuit has
In order to establish a conflict of interest, a defendant must point to specific instances
in the record to suggest an actual conflict or impairment of his interests. Defendant
must demonstrate that the attorney made a choice between possible alternative
courses of action, such as eliciting (or failing to elicit) evidence helpful to one client
but harmful to the other. If he did not make such a choice, the conflict remained
hypothetical. There is no violation where the conflict is irrelevant or merely
hypothetical; there must be an actual significant conflict.
United States v. Mays, 77 F.3d 906, 908 (6th Cir. 1996) (quoting United States v. Hopkins, 43 F.3d
1116, 1119 (6th Cir. 1995)).
In this case, Cantley’s allegations fall short of satisfying Cantley’s burden to show an actual
conflict or impairment of his interests. Cantley has not provided the Court with any basis for
concluding that his counsel made a choice between two possible courses of action, thus rendering
the alleged conflict entirely hypothetical. There must be an actual, significant conflict. Id.
Although not controlling, it is noteworthy that Cantley’s counsel would not have been barred by the
Michigan Rules of Professional Conduct from representing Cantley based on the facts presented by
Cantley. See Mich. R. Prof’l Conduct 1.7(b) (prohibiting an attorney from representing a client if
representation of that client may be materially limited by the attorney’s responsibilities to another
client, a third person, or the attorney’s own interests); 1.9 (prohibiting an attorney from representing
a client in the same or a substantially related matter in which the client’s interests are materially
adverse to a former client). Cantley’s bare allegation that his attorney was biased toward the
prosecution is insufficient for habeas relief.
B. Procedural Default Standard
Cantley’s second objection is that the magistrate judge applied the incorrect procedural
default standard. (Pet’r’s Objection, Docket no. 112, Page ID 916.) Cantley’s argument appears
to be that the magistrate judge only applied the “actual innocence” standard to Cantley’s arguments
that the R & R concludes were procedurally defaulted. (Id. at 916–17.) The Court disagrees. In
reviewing Cantley’s claims, the magistrate judge applied the correct standard, as articulated by the
United States Supreme Court in House v. Bell, 547 U.S. 518, 536, 126 S. Ct. 2064, 2076 (2006) (“As
a general rule, claims forfeited under state law may support federal habeas relief only if the prisoner
demonstrates cause for the default and prejudice from the asserted error. . . . The bar is not,
however, unqualified . . . the Court has recognized a miscarriage-of-justice exception.”) and Murray
v. Carrier, 477 U.S. 478, 494–96, 106 S. Ct. 2639, 2648–49 (1986) (The habeas petitioner must
show not merely that the errors at trial created a possibility of prejudice, but that they worked to his
actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” (internal quotation marks and citations omitted)). (See R & R, Docket no. 98, Page
ID 724.) The magistrate judge then applied the standard to each of Cantley’s remaining claims.
(See id. at 724–27.) Thus, the Court will overrule Cantley’s objection regarding the correct
procedural default standard.
II. Certificate of Appealability
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 a petitioner has demonstrated “a
substantial showing of a denial of a constitutional right.” Id. 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. Consequently, this Court has examined Cantley’s claims 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 dismissal of Cantley’s claims was debatable or
wrong. Thus, the Court will deny Cantley a certificate of appealability.
Therefore, the Court will adopt the magistrate judge’s R & R as the Opinion of the Court.
A separate order will issue.
Dated: August 14, 2013
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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