Nix #223271 v. Bauman

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATION 11 : Petitioner's petition and certificate of appealability are DENIED; case closed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

PAUL WILLIAM NIX,
Petitioner,
v.

Case No. 2:14-CV-28

CATHERINE BAUMAN,

HON. GORDON J. QUIST

Respondent.
_______________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner, Paul William Nix, filed a petition for writ of habeas corpus alleging that his due
process rights were violated because he was never arraigned in Michigan circuit court. Respondent
was ordered to answer. On June 16, 2016, based on the parties’ submissions and the Rule 5
materials, Magistrate Judge Timothy P. Greeley issued a Report and Recommendation (R & R)
recommending that the Court deny Petitioner’s habeas petition.
Petitioner has filed Objections to the R & R, urging the Court to reject the magistrate judge’s
recommendation. 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 R & R and Petitioner’s Objections, the Court concludes that the
R & R should be adopted and the petition denied.
In his R & R, the magistrate judge concluded that the Michigan Court of Appeals’ decision
was not contrary to, nor an unreasonable application of, clearly established federal law as
determined by the United States Supreme Court. In particular, the magistrate judge observed that

any violations of state law did not rise to the level of a Constitutional violation because Petitioner
had ample notice of the charges against him. (R & R at 8–9.) The magistrate judge further
concluded that Petitioner failed to show that his trial counsel’s performance was deficient or that
prejudice resulted from the written waiver form Petitioner’s trial counsel filed in the state court.
(Id.)
Although Petitioner raises two specific objections, they actually go to the same point—that
Petitioner did not waive his right to be arraigned in open court. In support of this objection,
Petitioner submits the Waiver of Arraignment form signed by Petitioner’s counsel but not by
Petitioner. (ECF no. 12-3.) Even though Petitioner did not sign the form, however, such would not
undermine the magistrate judge’s conclusion that Petitioner’s right to due process was not violated.
As both the magistrate judge and the state court concluded, Petitioner had timely and sufficient
notice of the charges against him by other means. Petitioner does not contest this conclusion, nor
does the Court find any basis to reject it. Accordingly, Petitioner’s objections lack merit.
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 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.
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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 June 16, 2016 (ECF No. 11) is APPROVED AND ADOPTED as the Opinion of this Court,
IT IS FURTHER ORDERED that Petitioner’s Motion for a Thirty Day Enlargement of
Time (ECF no. 12) is GRANTED, Petitioner’s Objections (ECF No. 12-2) are OVERRULED, and
Petitioner’s habeas corpus petition is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
A separate judgment will issue.

Dated: July 28, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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