Peeples #435618 v. Horton

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATION 24 : 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
__________________________

BRIAN ANTHONY PEEPLES,
Petitioner,
v.

Case No. 2:17-CV-83

CONNIE HORTON,

HON. GORDON J. QUIST

Respondent.
__________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION
Petitioner, Brian Anthony Peeples, objects to Magistrate Judge Maarten Vermaat’s April 3,
2019, Report and Recommendation (R & R) recommending that the Court deny Petitioner’s habeas
petition and deny Petitioner a certificate of appealability. Petitioner raised four claims:
(1)

his trial counsel was ineffective for failing to move for a Walker (suppression)
hearing in order to litigate whether Petitioner’s incriminating statements to the police
at the time of his arrest were made in violation of Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602 (1966);

(2)

he was denied his right to a fair trial by the admission of text messages sent from,
and received by, a cell phone number that Petitioner allegedly used, where the text
messages were not admissible under any exception to the hearsay rule;

(3)

he was denied his right to a fair trial because the text messages were not sufficiently
linked to Petitioner as required by MRE 901; and

(4)

the evidence, absent Petitioner’s statements to the police at the time of his arrest and
the text messages, was insufficient to sustain his conviction.

Regarding issue 1, the magistrate judge concluded that the state-court’s application of the
“public safety” exception set forth in New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626 (1984),
to Petitioner’s statement that he had already disposed of the gun, and the state-court’s determination

that Petitioner’s statements to the crowd did not violate Miranda because Petitioner volunteered
them without prompting by the police, were neither contrary to, nor an unreasonable application of,
clearly established law of the United States Supreme Court. (ECF No. 24 at PageID.954–56.) In
light of that conclusion, the magistrate judge found that the Michigan Court of Appeals correctly
rejected Petitioners’s ineffective assistance claim because counsel cannot be ineffective for failing
to file meritless motions. (Id. at PageID.960–61.) As for issues 2 and 3, the magistrate judge
observed that Petitioner failed to cite any federal authority undermining the state-court’s
determination that the phone records and texts were admissible, or supporting the proposition that
such evidence was constitutionally inadmissible. (Id. at PageID.958–59.) Finally, as to issue 4, the
magistrate judge concluded that the Michigan Court of Appeals’ determination that the prosecution
presented sufficient evidence to convict Petitioner—with or without the text messages and
Petitioner’s incriminating statements—was not an unreasonable application of Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781 (1979). (Id. at PageID.963.)
Pursuant to 28 U.S.C. § 636(b), upon receiving an objection 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, Petitioner’s Objections, and the pertinent portions of the record, the Court
concludes that the R & R should be adopted and the petition denied.
Inculpatory Statements
Petitioner argues that the magistrate judge erred in concluding that the state court properly
concluded that the “public safety” exception and the voluntariness of Petitioner’s statements
rendered Petitioner’s statements properly admissible. As to the “public safety” exception, Petitioner
argues that the exception is inapplicable because no witness testified that the officers felt they were
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in danger after they apprehended Petitioner. But the public safety exception is not so narrow. As
the Sixth Circuit has observed, the exception “requires an officer to have reason to believe (1) that
the defendant might have (or recently have had) a weapon, and (2) that someone other than police
might gain access to that weapon and inflict harm with it.” Hart v. Steward, 623 F. App’x 739, 746
(6th Cir. 2015) (internal quotation marks omitted). Thus, the exception applies if officers or
members of the public might be in danger if someone gains access to the weapon. Here, Petitioner
does not argue that the officers lacked a reason to believe that Petitioner either possessed or had
disposed of a weapon. In fact, Detective York testified that he told Petitioner that several kids lived
around the area and that he did not want one of them to find a gun if Petitioner had tossed one.
(ECF No. 19-5 at PageID.471.) Thus, as the magistrate judge concluded, Detective York’s question
to Petitioner “fit[] squarely within the exception.” (ECF No. 24 at PageID.955.) As for Petitioner’s
assertion that his additional, voluntary statements were subject to Miranda because he was in
custody when he made them, Petitioner fails to cite any case to support his argument. Moreover,
the law is clear that “where a defendant [in custody] makes a voluntary statement without being
questioned or pressured by an interrogator, the statements are admissible despite the absence of
Miranda warnings.” United States v. Murphy, 107 F.3d 1199, 1204 (6th Cir. 1997) (citing United
States v. Montano, 613 F.2d 147, 149 (6th Cir. 1980)). The evidence was that Petitioner volunteered
his additional statements, not to the police, but to the people in the crowd. (Id. at PageID.471–72.)
Petitioner’s arguments thus lack merit.
For the foregoing reasons, the magistrate judge also properly recommended that the
Michigan Court of Appeals’ determination that Petitioner’s trial counsel was not ineffective for

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failing to file a meritless motion to suppress was not contrary to, nor an unreasonable application
of, Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).1
Sufficiency of the Evidence
Petitioner asserts that the magistrate judge erred in recommending that the Court conclude
that Petitioner is not entitled to relief on his sufficiency of the evidence claim. Petitioner again
argues that, absent the evidence of Petitioner’s statements at the time of his arrest and the text
messages Petitioner sent to the mother of his child, the evidence was insufficient to convict
Petitioner. The Michigan Court of Appeals analyzed the evidence with and without Petitioner’s
statements and the text messages and concluded that, in either case, the evidence was sufficient to
convict Petitioner.
Petitioner fails to show that the magistrate judge erred in recommending that Petitioner be
denied relief on this ground. As the magistrate judge observed, there was sufficient evidence to
allow the jury to infer that Petitioner was the shooter. Thus, the Michigan Court of Appeals did not
unreasonably apply the Jackson standard.
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. Each issue must be considered

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Petitioner also references his mental condition at the time he made the statements. As the magistrate judge
observed, however, Petitioner’s mental state would have had no bearing on the “public safety” exception or Petitioner’s
volunteered statements.

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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.
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 April 3, 2019 (ECF No. 24) is APPROVED AND ADOPTED as the Opinion of this Court,
and Petitioner’s Objections (ECF No. 28) are OVERRULED.
IT IS FURTHER ORDERED that Petitioner’s habeas corpus petition is DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED by this Court.
A separate judgment will issue.

Dated: August 9, 2019

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

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