Readous #437234 v. Woods
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 9 , denying a certificate of appealability ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 2:14-cv-97
HON. ROBERT HOLMES BELL
OPINION AND ORDER
This is a habeas corpus petition brought by a state prisoner under 28 U.S.C. § 2254.
The matter was referred to Magistrate Judge Timothy Greeley, who issued a Report and
Recommendation (“R&R”) on July 21, 2016, recommending that this Court deny the
petition. (ECF No. 9.) The matter is before the Court on Petitioner’s objections to the R&R.
(ECF No. 10.)
This Court is required to make a de novo review upon the record of those portions of
the R&R to which specific objections have been made, 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); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (“[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.”).
Petitioner filed two objections. First, he objects to the Magistrate Judge’s conclusion
that counsel’s performance was not deficient or prejudicial. Second, Petitioner objects to his
offense-variable scoring. The Michigan Court of Appeals ruled on the merits of both.
I. Standard of Review
When a petitioner’s claim has been adjudicated on the merits in state court, § 2254(d)
provides that a habeas petition shall not be granted unless the adjudication:
(1) resulted 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
(2) resulted in a decision that was based on an unreasonable
determination of facts in light of the evidence presented in the statecourt proceeding.
28 U.S.C. § 2554(d)(1)-(2).
This Court may only consider the clearly established holdings of the Supreme Court
when analyzing Petitioner’s claim under § 2254(d). Williams v. Taylor, 529 U.S. 362, 412
(2000). A state-court decision may only be overturned if: (1) it applies a rule contradicting
Supreme Court governing law; (2) it contradicts a set of facts materially indistinguishable
from a Supreme Court decision; (3) it unreasonably applies correct Supreme Court precedent
to the facts of the case; (4) it unreasonably extends Supreme Court legal principles where it
should not apply; or (5) it unreasonably refuses to extend Supreme Court legal precedent
where it should apply. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001) (citing Williams
v. Taylor, 529 U.S. 362, 404-409 (2000)). This Court defers to state-court decisions when
the state court addressed the merits of Petitioner’s claim. Harris v. Stovall, 212 F.3d 940,
943 (6th Cir. 2000). The state court’s factual findings are presumed to be correct but may
be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The Supreme Court has set forth a two-prong test to evaluate claims of ineffective
assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Petitioner
must prove: (1) that counsel’s performance fell below an objective standard of
reasonableness; and (2) that counsel’s deficient performance prejudiced the defendant
resulting in an unreliable or fundamentally unfair outcome. Id. A court considering a claim
of ineffective assistance must “indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689. Petitioner bears the
burden of overcoming this presumption. Id. Moreover, when a federal court reviews a state
court’s application of Strickland under § 2254(d), the review is “doubly” deferential.
Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111,
123 (2009)). A federal court must determine “whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id.
Petitioner argues that his trial counsel was constitutionally ineffective in three ways:
(1) counsel failed to file a motion to suppress the victim’s in-court identification which
resulted from an unduly suggestive single-photo show up; (2) counsel failed to call an expert
on cell-tower technology; and (3) counsel failed to request a DNA analysis on extension
cords seized from the crime scene.
The factual findings of the Michigan Court of Appeals are presumed correct, and
Petitioner has not rebutted the findings with clear and convincing evidence. The Michigan
Court of Appeals found that there were eight factors supporting an independent basis for the
victim’s identification, including a prior relationship with or knowledge of Petitioner, so any
challenge would have been futile. (ECF No. 7-8, PageID.526.) It also found that, based on
the facts in the record, there was no reason to believe that a cell-tower expert would have
testified that Petitioner was not in Detroit when he called his sister or Jeffrey Monaghan. (Id.
at PageID.526-27.) Finally, it found that Petitioner had not shown that his trial counsel’s
failure to request DNA testing was outcome-determinative. (Id. at PageID. 527.) The
Michigan Supreme Court denied Petitioner’s request to review the decision because it was
“not persuaded that the questions presented should be reviewed by this Court.” (ECF No.
The Michigan Court of Appeals properly identified and applied Strickland, and there
is a reasonable argument that counsel satisfied Strickland’s deferential standard. Petitioner
did not overcome the strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance, and he did not show that any of this would have
changed the outcome of the trial. Given the extensive independent evidence in support of
the in-court identification, counsel’s failure to file a motion to suppress falls within the range
of reasonable professional assistance. It also would not have changed the outcome of the
trial because the motion would have been futile.
Petitioner also did not show that calling a cell-tower expert would have changed the
outcome of trial. Based on the facts in the record, there is no reason to believe that the expert
would have testified that Petitioner was not in Detroit. Therefore, the expert testimony
would not have supported Petitioner’s alibi defense. In addition, Petitioner merely speculates
that DNA could have been recovered from the crime scene, and that this evidence would
have exonerated him. This does not show that DNA evidence would have changed the
outcome of trial. Further, the Michigan Court of Appeals reasonably determined, in light of
the evidence presented in the state-court proceeding, that Petitioner’s ineffective assistance
of counsel claims lacked merit. Also, its decision was not contrary to, and did not involve
an unreasonable application of, clearly established federal law. Thus, Petitioner’s claims of
ineffective assistance of counsel are without merit.
Petitioner also argues that the trial court improperly scored his offense variables. This
claim is based on state law, and Petitioner does not allege a constitutional violation.
Therefore, this claim is not cognizable under § 2254, and the Court will not consider it.
Although Petitioner disagrees with the Magistrate Judge’s conclusion, Petitioner has
not demonstrated that the conclusion was erroneous. The R&R accurately recites the facts
and correctly applies pertinent law. The Court agrees with and adopts the Magistrate Judge’s
analysis of Petitioner’s ineffective assistance of counsel claim.
With regard to the sections of the R&R not specifically objected to, the Court has
reviewed the matters and concludes that the R&R correctly analyzes the issues and makes
a sound recommendation.
IT IS HEREBY ORDERED that Petitioner’s objections to the R&R (ECF No. 10)
IT IS FURTHER ORDERED that the R&R (ECF No. 9) is APPROVED and
ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 28
U.S.C. § 2253(c). Reasonable jurists would not disagree with the Court’s conclusion that
the claims are meritless. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
A judgment will enter that is consistent with this order.
Dated: October 20, 2016
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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