Rios #367871 v. Place

Filing 92

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 85 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Dermaine Rios,
Petitioner,
-vShane Place,
Respondent.

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No. 2:15-cv-160
HONORABLE PAUL L. MALONEY

OPINION
Dermaine Rios, a Michigan prisoner, filed a petition under 28 U.S.C. § 2254
challenging his state court conviction. The magistrate judge issued a report and
recommendation (R & R) concluding that the petition should be denied. (ECF No. 86.) Rios
timely filed objections. (ECF No. 91.) Rios sets forth four specific objections to the R & R:
(1) The magistrate judge erred as a matter of law when he concluded that the state presented
sufficient evidence to convict him of arson under Michigan law; (2) the magistrate judge erred
by concluding that Rios’ procedurally-defaulted claims were not saved by the “fundamental
miscarriage of justice exception; (3) the magistrate judge erred by concluding that Rios could
not show prejudice on his ineffective assistance of counsel claims; and (4) the magistrate
judge erred by not granting an evidentiary hearing before ruling on his ineffective assistance
of counsel claims. For the reasons to follow, the Court will adopt the R & R as the opinion
of the Court and overrule Rios’ objections to the R & R.

Statement of Facts
Petitioner takes no issue with the facts as summarized by the magistrate judge. Since
he lodges objections only to legal conclusions, the Court adopts the magistrate judge’s
summary of the facts contained in the R & R. (ECF No. 85.)
Legal Framework
With respect to a dispositive motion, a magistrate judge issues a report and
recommendation, rather than an order. After being served with a report and
recommendation (R&R) issued by a magistrate judge, a party has fourteen days to file written
objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). A district court judge reviews de novo the portions of the R&R to which
objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Only those objections that are specific are entitled to a de novo review under the
statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district
court need not provide de novo review where the objections are frivolous, conclusive or too
general because the burden is on the parties to “pinpoint those portions of the magistrate’s
report that the district court must specifically consider”). Failure to file an objection results
in a waiver of the issue and the issue cannot be appealed. United States v. Sullivan, 431 F.3d
976, 984 (6th Cir. 2005); see also Thomas v. Arn, 474 U.S. 140, 155 (upholding the Sixth
Circuit’s practice). The district court judge may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b).

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Analysis
The Court first takes up Petitioner’s contention that his conviction was not supported
by sufficient evidence. Petitioner previously raised this issue on direct appeal with the
Michigan Court of Appeals. The R & R concluded that sufficient evidence supported the
conviction and was not contrary to clearly established federal law. Rios now claims that his
conviction violated the Supreme Court’s holding in United States v. Ross—an 1875 case—that
held when circumstantial evidence is relied upon to prove a fact, the circumstances must be
proven and may not be presumed. 92 U.S. 281 (1875). Petitioner theorizes that under this
standard, the prosecution failed to “overcome the presumption that the fire was accidental.”
(ECF No. 91 at PageID.1479.) Based on this alleged failure, he believes his conviction was
contrary to, or an unreasonable application of clearly established federal law. 28 U.S.C. §
2254(d)(1).
However, Ross sheds no new light on Rios’ conviction and the objection is without
merit. As the Michigan Court of Appeals noted:
Arson cases are usually proved with circumstantial evidence. “‘Such evidence
is often of a negative character; that is, the criminal agency is shown by the
absence of circumstances, conditions, and surroundings indicating that the
fire resulted from an accidental cause.’” Nowack, 462 Mich. at 402-403
(citation omitted); see also People v Wolford, 189 Mich. App. 478, 480; 473
N.W.2d 767 (1991). Further, a “prosecutor need not negate every
reasonable theory consistent with innocence,” Nowack, 462 Mich. at 400,
and an arson investigator is not required to rule out all “remotely possible
causes of a fire for which no evidence exists.” People v Simon, 174 Mich. 649,
654; 436 N.W.2d 695 (1989).
The prosecution presented evidence that defendant was seen alone in his
cell shortly before the fire started. Officers responding to the scene testified
that the fire appeared to be in two or three locations in the cell. One officer
testified that he did not believe the fire was an electrical or grease fire,
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although he was not a fire investigator and did not investigate further after
the fire was put out. Another officer testified that there were no open flames,
burners, heat sources, or anything that would cause an accidental ignition
in the cells of the unit in which defendant’s cell was located. He too
admitted that he was not a fire investigator and did not investigate for the
purpose of determining the cause of the fire. A state police officer testified
that he had no reason to believe accelerants or flammable liquids were
used. A nurse who attended to defendant testified that he said he lit his
mattress on fire. Although a state police officer testified that the mattress was
not damaged, defendant was the only one with an opportunity to deliberately
set a fire because he was alone in his cell.
This evidence is sufficient, when viewed in a light most favorable to the
prosecution, for a rational jury to conclude beyond a reasonable doubt that
the prosecution proved all essential elements of the crime. Ericksen, 288
Mich. App. 192, 195-196. The evidence showed multiple points of origin,
no apparent accidental causes for the multiple fires, and that defendant
possessed both the means and opportunity to start the fires. In meeting its
burden of proof, the prosecution need not negate every theory consistent with
innocence. Nowack, 462 Mich. at 400.
(ECF No. 41-22 at PageID.802.) Therefore, as that court noted, the prosecution put forth
the evidence necessary to prove the circumstances underlying Petitioner’s conviction; that is
the obligation under Ross. The prosecution was not required to disprove Rios’ theory that
the fire was accidental. The Court thus concludes that the Michigan Court of Appeals
decision was not contrary to clearly established federal law, nor was it an objectively
unreasonable application of federal law as determined by the Supreme Court. Williams v.

Taylor, 529 U.S. 362, 409–12 (2000).
Rios’ also objects to the magistrate judge’s conclusion that his ineffective assistance of
trial counsel claims were procedurally defaulted and thus barred from federal habeas review.
“[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
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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) (quoting Maupin v.

Smith, 785 F.2d 135, 138 (6th Cir. 1986)).
As a general rule that procedurally defaulted claims relating to state convictions cannot
be heard during federal habeas review. Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Engle

v. Isaac, 456 U.S. 107 (1982). Two exceptions to the general rule have been carved out. Ylst
v. Nunnemaker, 501 U.S. 797, 801 (1991); Engle v. Isaac, 456 U.S. 107 (1982). First, in
Wainwright v. Sykes, the United States Supreme Court held that state prisoners could not
litigate procedurally barred claims in § 2254 proceedings unless they could show cause for
and actual prejudice from the default. 433 U.S. 72 (1977). Second, “[i]n certain exceptional
cases involving a compelling claim of actual innocence . . . the state procedural default rule
is not a bar to a federal habeas corpus petition.” House v. Bell, 547 U.S. 518, 522 (2006).
To his credit, Rios does not contest that the claims are procedurally defaulted, instead
arguing that the magistrate erred by declining to consider them under the exceptions to the
procedural default rule. However, neither exception to the rule applies, so his claims cannot
be considered during federal habeas review. First, he has not shown (1) cause for his failure
to comply with the state procedural rule; and (2) actual prejudice flowing from the alleged
violation of federal law. Isaac, 456 U.S. at 130. Instead, he admits that he could have raised
his claims for ineffective assistance on direct review. This admission leaves petitioner unable
to meet the first element of Isaac. The Court also finds the magistrate judge’s conclusion
that Rios was not prejudiced by the alleged ineffective assistance of counsel to be well5

reasoned and to have accurately applied the law. Accordingly, the first exception to the
procedural default rule does not apply to Rios’ claims because neither element has been met.
Second, the Court is not aware of any exceptional circumstance that would justify
consideration of Rios’ claims on the merits. Rios does not claim that new, reliable evidence
is available that can prove his innocence. House, 547 U.S. at 536. The Court concludes that
Rios’ second objection to the R & R is without merit.
Finally, the Court has reviewed Rios’ remaining objections to the R & R and finds
them to be unmeritorious. His third objection is based upon the premise that the ineffective
assistance of counsel claims raised in his second objection have merit. They do not. Rios’
last objection is that the magistrate judge abused his discretion by denying Rios’ request for
an evidentiary hearing on his ineffective assistance of counsel claims. The Court can discern
no basis for sustaining the objection, since the claims were procedurally defaulted and could
not be considered on their merits.
ORDER
The Court OVERRULES Rios’ objections. (ECF No. 91.) The Report and
Recommendation is ADOPTED in full as the opinion of this Court. (ECF No. 85.)
IT IS FURTHER ORDERED that Petitioner’s Motions for leave to file an
amended brief (ECF No. 86) and for reconsideration of the Magistrate Judge’s denial of
discovery motions (ECF No. 90) are DISMISSED AS MOOT.

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CERTIFICATE OF APPEALABILITY
A district court must issue a certificate of appealability either at the time the petition
for writ of habeas corpus is denied or upon the filing of a notice of appeal. Castro v. United

States, 310 F.3d 900, 903 (6th Cir. 2002) (per curiam). A court may issue a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). See Miller-El v. Cockrell, 537 U.S. 322, 337
(2003). To satisfy this standard, the petitioner must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 483 (2000)). Courts should
undertake an individualized determination of each claim presented by the petitioner when
considering whether to issue a certificate of appealability. Murphy v. Ohio, 551 F.3d 485,
492 (6th Cir. 2009). Here, the Court concurs with the Magistrate Judge’s recommendation
that any appeal of this matter would not be taken in good faith. See McGore v.

Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).
Judgment will enter separately.
IT IS SO ORDERED.
Date: September 26, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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