PAUL J. KOMIVES, Magistrate Judge.
Petitioner Terry Bauder is a state prisoner, currently serving a sentence of 22½-40 years' imprisonment, imposed as a result of his state court convictions for two counts of first degree criminal sexual conduct (CSC-I), MICH. COMP. LAWS § 750.520b(1)(a). Petitioner's conviction arises from the sexual assault of the then-nine-year-old daughter of his girlfriend. The victim, who was ten years old at the time of trial, testified that petitioner had repeatedly penetrated her vagina with his finger since about the time she was five years old. On one particular date, the victim testified, petitioner put a blanket over her head and then stuck "something" into her, which felt different than when he used his fingers. The victim testified that she yelled and kicked when petitioner was molesting her. She also testified that petitioner told her that she should say that petitioner's brother, who had molested her mother, had molested her. She testified that she did not like petitioner, because he was always fighting with his mother and used drugs with her mother. She told her grandmother, her pastor, and other people about the abuse, and denied having ever told them that anyone else beside petitioner had touched her. The victim's grandmother testified that the victim told her of the abuse on July 4, 1991, and that she reported the matter to protective services the following day. The prosecution also presented the testimony of Dr. David K. Hickock, who examined the victim and was qualified as an expert in child molestation. He testified that the victim's vaginal opening was larger than expected in a nine year old girl, and that there was injury to the victim's hymen. There was also anal scarring. His physical findings were consistent with penetration by a finger or attempted penetration by a penis. Petitioner presented testimony, through himself and other witnesses, that no one had heard the victim scream or cry out, that petitioner was hardly ever alone with the victim, and that petitioner and the victim's mother almost always showered together (contradicting the victim's testimony that the abuse often occurred while her mother was showering). The trial court precluded petitioner from introducing evidence of alleged prior false accusations made by the victim, and evidence that the victim was found in bed with her cousin.
Petitioner was tried in the Branch County Circuit Court on November 2-3, 1992. On November 3, 1992, the jury returned a verdict of guilty on the two counts of CSC-I charged in the information.
On September 9, 2005, the victim executed an affidavit recanting her trial testimony. In her affidavit, the victim avers that at the time of trial she "was eight years old, not fully cognizant of the circumstances, and I believe I was pressured into affording the testimony that I offered." Respondent's Mot. for Summ. J., Ex. 3, ¶ 3. She also avers that "upon examination and after counsel with many care providers, I have reconsidered the testimony that I offered and now believe that it was not truthful," and that her "best examination of the events that occurred in 1991 including my present recollection of them, would be that there was no sexual activity between Mr. Bauder and myself." Id., ¶¶ 4-5. Based on this affidavit, petitioner filed a second motion for relief from judgment in the trial court pursuant to MICH. CT. R. 6.502(G). The trial court conducted an evidentiary hearing, at which the victim testified. At the hearing, the victim testified that years of counseling had raised doubts about her testimony, that she first began to have when she was 14 or 15 years old (the victim was 23 years old at the time of the hearing). She related her doubts at that time to her uncle and to petitioner's sister-in-law, and more recently to petitioner's sister. She reviewed the videotapes of her trial testimony when she was 15 or 16 years old, and did so again several years later. See Evid. Hr'g Tr., dated 1/5/06, at 10-12, 23-24. She testified that there was no sexual activity between herself and petitioner, but that she had been abused by other people. See id. at 12-13, 14-15. On cross-examination, she testified that her grandmother's husband had sexually assaulted her, but that she did not make this known to anyone at the time. See id. at 17-18. The only person she ever mentioned to the police or the social services worker was petitioner. See id. at 18-19. The victim testified that her testimony at trial was the result of manipulation by her grandmother. See id. at 20, 26. She indicated that she could not remember anything happening to her, and because of this she concluded that petitioner had not sexually abused her. See id. at 23.
Following the submission of supplemental briefs by the parties, the trial court denied petitioner's motion. The court reasoned:
People v. Bauder, No. 91-11-5263 FC, at 2 (Branch County, Mich., Cir. Ct. Oct. 3, 2006). Petitioner appealed that decision to both the Michigan Court of Appeals and Michigan Supreme Court, claiming that the trial court's denial of his motion constituted an abuse of discretion and deprived him of due process of law. Both courts denied his applications for leave to appeal in standard orders, based on his "fail[ure] to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Bauder, 483 Mich. 877, 759 N.W.2d 208 (2009); People v. Bauder, No. 280758 (Mich. Ct. App. Apr. 16, 2008).
On January 16, 2010, petitioner, through counsel, filed the instant application for the writ of habeas corpus, raising the following claim:
On March 12, 2012, the Court transferred the petition to the Sixth Circuit as a successive habeas petition pursuant to 28 U.S.C. § 2244(b). On April 1, 2011, the Sixth Circuit entered an order granting petitioner authorization to file his successive habeas application in light of the newly discovered evidence pursuant to § 2244(b)(2). Petitioner filed a motion to supplement his habeas application on October 26, 2011, which I have granted by Order entered this date. On December 5, 2011, respondent filed a motion for summary judgment, arguing that petitioner's claim is barred by the statute of limitations set forth in 28 U.S.C. § 2244(d). Petitioner filed a response to the motion on January 5, 2012.
For the reasons that follow, the Court should decline to rule on the limitations issue, and should instead deny petitioner's application on the merits.
On April 24, 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1220 (Apr. 24, 1996). In relevant part, the AEDPA amended 28 U.S.C. § 2244 to provide a one year statute of limitations for habeas petitions. Specifically, the statute as amended by the AEDPA provides:
28 U.S.C. § 2244(d).
There are several factors which complicate the Court's analysis of the limitations issue, most of which relate to the parties' failure to fully engage the issues raised by respondent's limitations argument. As respondent correctly notes, the limitations period under § 2244(d)(1)(D) does not begin on the date the victim executed her affidavit; rather, it begins on the date that "petitioner knew or could have discovered that the witness was willing to recant his or her testimony." Bates v. Warren, No. 05-CV-72772, 2010 WL 1286206, at *8 (E.D. Mich. Mar. 30, 2010) (citing Deloney v. McCann, 229 Fed. Appx. 419, 422 (7th Cir. 2007); Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 816 n. 10 (2d Cir. 2000); Ajamu-Osagboro v. Patrick, 620 F.Supp.2d 701, 711-12 (E.D. Pa. 2009); Webb v. Bell, No. 2:07-CV-12689, 2008 WL 2242616, *5 (E.D. Mich. May 30, 2008) (Borman, J.); Chism v. Johnson, No. 3-99-CV-2412-BD, 2000 WL 256875, *2 (N.D. Tex. Mar. 7, 2000)). Although the victim had expressed some doubts about her trial testimony as early as 1996 or 1997, the record is not sufficiently developed to determine whether she was at that time actually willing to recant her testimony, or when she became so willing. Further, the record is not sufficiently clear to determine whether this fact was actually communicated to petitioner himself such that he should have known that the victim was willing to recant her trial testimony.
Second, the statute of limitations analysis is complicated by the fact that it appears that petitioner's application may be untimely even if the limitations period did not commence until the victim executed her affidavit. The victim's affidavit is dated September 9, 2005. Thus, the limitations period began running on September 10, 2005. Seventeen days elapsed until petitioner filed his motion for relief from judgment in the state court. The limitations period was then tolled during the pendency of the state court motion for relief from judgment pursuant to § 2244(d)(2). The limitations period began running again when the Michigan Supreme Court denied petitioner's application for leave to appeal with respect to the motion for relief from judgment on January 21, 2009. At that point, petitioner had 348 days remaining on the limitations clock. However, he did not file his habeas application until January 16, 2010, 360 days later and apparently 12 days beyond the limitations period, even accepting the date of the victim's affidavit as the appropriate starting date. This, at least, is how it appears upon an initial analysis, and neither party has addressed this issue, apparently simply assuming that the petition is timely if the limitations period commences on the date of the victim's affidavit.
Third, the Sixth Circuit has held that the actual innocence exception, which allows a court to review the merits of a habeas claim notwithstanding a procedural default, likewise exists for the habeas statute of limitations. See Souter v. Jones, 395 F.3d 577, 598-602 (6th Cir. 2005). In order to be entitled to the actual innocence exception, however, a petitioner must present "new and reliable evidence that was not presented at trial" that "show[s] that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 299 (1995). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup, 513 U.S. at 327 (internal citation and quotation omitted). Upon initial examination, it would appear that petitioner may have a strong argument for equitable tolling of the limitations period on the basis of actual innocence. Despite this, in his response to respondent's motion petitioner states that he "has not argued that he was entitled to equitable tolling," Pet'r's Resp., at 2. He then goes on to argue, however, that Souter and other cases cited by respondent are distinguishable, suggesting that he is making an actual innocence argument with respect to the limitations issue.
For these reasons, the statute of limitations issue is less than straightforward. Fortunately, "[b]ecause the statute of limitations does not constitute a jurisdictional bar to habeas review, a federal court, can, in the interest of judicial economy, proceed to the merits of a habeas petition." Rashad v. Lafler, No. 2:08-CV-14983, 2009 WL 3247966, at *3 (E.D. Mich. Oct. 6, 2009) (Roberts, J.) (citing Smith v. State of Ohio Dep't of Rehabilitation, 463 F.3d 426, 429 n.2 (6th Cir. 2006)); see also, Plough v. United States, 442 F.3d 959, 965 (6th Cir. 2006). Here, as explained below, it is clear that petitioner is not entitled to habeas relief on the merits. Accordingly, rather than resolve the limitations issue, the Court should simply deny the petition on the merits.
Because petitioner's application was filed after April 24, 1996, his petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Amongst other amendments, the AEDPA amended the substantive standards for granting habeas relief by providing:
28 U.S.C. § 2254(d).
"[T]he `contrary to' and `unreasonable application' clauses [have] independent meaning." Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). "A state court's decision is `contrary to' . . . clearly established law if it `applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'" Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 3, 8 (2002); Bell, 535 U.S. at 694. "[T]he `unreasonable application' prong of § 2254(d)(1) permits a federal habeas court to `grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413); see also, Bell, 535 U.S. at 694. However, "[i]n order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Wiggins, 539 U.S. at 520-21 (citations omitted); see also, Williams, 529 U.S. at 409.
By its terms, § 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with "clearly established federal law as determined by the Supreme Court." Thus, "§ 2254(d)(1) restricts the source of clearly established law to [the Supreme] Court's jurisprudence." Williams, 529 U.S. at 412. Further, the "phrase `refers to the holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant state-court decision.' In other words, `clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting Williams, 529 U.S. at 412).
Although "clearly established Federal law as determined by the Supreme Court" is the benchmark for habeas review of a state court decision, the standard set forth in § 2254(d) "does not require citation of [Supreme Court] cases—indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements of "clearly established law" are to be determined solely by the holdings of the Supreme Court, the decisions of lower federal courts are useful in assessing the reasonableness of the state court's resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Phoenix v. Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F.Supp.2d 354, 359 (E.D. Mich. 2002) (Tarnow, J.).
Although petitioner attempts to assert a number of constitutional claims, at its core petitioner's claim is simply one that he is actually innocent based on newly discovered evidence. Such a claim, however, does not present a cognizable basis for habeas relief. A writ of habeas corpus may be granted "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Thus, the existence of new evidence, standing alone, is not a basis for granting the writ. As the Supreme Court has explained: "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400 (1993); see also, id. at 404 (claim of actual innocence is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise [procedurally] barred constitutional claim considered on the merits.") (emphasis added); Schlup v. Delo, 513 U.S. 298, 314-16 (distinguishing, in part, Herrera because in this case the petitioner "accompanie[d] his claim of innocence with an assertion of constitutional error at trial."); Townsend v. Sain, 372 U.S. 293, 317 (1963) ("Of course, such evidence must bear upon the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus."), overruled in part on other grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). Thus, the newly discovered evidence, standing alone, provides no basis for habeas relief. See Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007); Wright v. Stegall, 247 Fed. Appx. 709, 711 (6th Cir. 2007).
Likewise, petitioner cannot establish a constitutional claim on the basis of the trial court's denial of his motion for relief from judgment. It is well established that nothing in the Constitution requires a state to establish a system of postconviction review, and thus "an infirmity in a state post-conviction proceeding does not raise a constitutional issue[.]" Gee v. Groose, 110 F.3d 1346, 1351-52 (8th Cir. 1997) (internal quotation omitted); accord Murray v. Giarratano, 492 U.S. 1, 13 (1989) (O'Connor, J., concurring); Dawson v. Snyder, 988 F.Supp. 783, 826 (D. Del. 1997) (citing Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) and Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992)). Thus, the state courts' alleged errors in his postconviction proceeding do not provide a basis for habeas relief.
Nor can petitioner establish a constitutional claim for relief on the basis that the victim perjured herself at trial. Petitioner does not contend that the prosecutor or any other state actor knew the victim's testimony to be false.
Petitioner raises several constitutional challenges to his conviction, all based on the victim's purported recantation. These arguments, however, are merely reformulations of petitioner's central claim—that newly discovered evidence establishes his innocence—and provide no basis for habeas relief. For example, petitioner contends that, in light of the victim's recantation, there is not sufficient evidence to prove his guilt beyond a reasonable doubt. However, petitioner is not entitled to relief on this basis "because Jackson v. Virginia, 443 U.S. 307 (1979), requires the court to evaluate the `record evidence' to determine whether a finding of guilt could be supported. The [new] testimony of [the victim] was not presented at trial and therefore cannot be considered in an insufficiency argument." Thomas v. Cain, 139 Fed. Appx. 620, 621 (5th Cir. 2005) (parallel and internal citations omitted) (quoting Jackson, 443 U.S. at 318); see also, errera, 506 U.S. at 402 (citation omitted) ("[T]he sufficiency of the evidence review authorized by Jackson is limited to `record evidence.' Jackson does not extend to nonrecord evidence, including newly discovered evidence."); Goins v. Angelone, 52 F.Supp.2d 638, 678 (E.D. Va. 1999). Petitioner does not contend that the evidence adduced at trial, if believed by a jury, was insufficient to prove his guilt beyond a reasonable doubt, and a cursory review of the victim's testimony at trial shows that the prosecution presented sufficient evidence to prove the elements of CSC-I beyond a reasonable doubt.
Petitioner also contends that, by finding that the victim had not truly recanted her testimony, the trial court deprived him of his right to confront the witness with her new testimony and invaded the province of the jury by judging the credibility of the witness. These arguments, however, misapprehend the distinction between a trial, at which the rights to confront the witnesses and to a jury determination of guilt are applicable, and a postconviction proceeding, at which such rights are not applicable. The rule that the jury is the exclusive judge of the weight and credibility of the evidence, it is well established, "is applicable only where the issue is tried to a jury. In issues tried to the court it is the function of the court to determine the issues of fact and the credibility of testimony. A motion for new trial on the ground of newly discovered evidence is heard by the trial judge and it is his function to determine the credibility of all evidence that may be produced." Connelly v. United States, 271 F.2d 333, 335 (8th Cir. 1959). Thus contrary to the implication of petitioner's argument, under neither federal nor Michigan law is a court considering a new trial motion "required to accept [the defendant's] proffered evidence as true, order a new trial, and allow a jury to determine whether the proffered evidence is credible." United States v. McCullough, 457 F.3d 1150, 1167 (10th Cir. 2006); see also, United States v. Desir, 273 F.3d 39, 42 (1st Cir. 2001) (internal quotation omitted) (in considering new trial motion based on newly discovered evidence, "district court has broad power to weigh the evidence and assess the credibility of both the witnesses and the `new' evidence."); People v. Cress, 468 Mich. 678, 692, 664 N.W.2d 174, 182 (2003) (in considering new trial motion, "it is within the trial court's discretion to determine the credibility" of the new evidence.). Indeed, a contrary rule would require a new trial any time a defendant comes forward with new evidence, no matter how incredible. See Desir, 273 F.3d at 42. In short, petitioner "cites no authority, nor have [I] discovered any, which indicates that trial judges considering motions for new trial cannot make credibility determinations without running afoul of the right to trial by jury. . . . Couching the new trial decision by the trial judge in terms of the Sixth Amendment right to trial by jury does not elevate the question to one of constitutional dimension." Durrett v. Brown, No. 92-36683, 1993 WL 326442, at * (9th Cir. Aug. 26, 1993); see also, People v. Gilmore, No. 285080, 2009 WL 2448150, at *4 (Mich. Ct. App. Aug. 11, 2009) (trial judge did not invade province of jury and deny defendant his Sixth Amendment right to a jury trial by finding newly discovered evidence not credible and insufficient to warrant a new trial).
Nor can petitioner show that he was denied his right to confront the witnesses against him by the trial court's failure to grant him a new trial, because the right of confrontation is a trial right that he was fully accorded. As the Supreme Court has repeatedly explained, "the right to confrontation is a trial right." Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987) (emphasis in original) (citing California v. Green, 399 U.S. 149, 157 (1970); Barber v. Page, 390 U.S. 719, 725 (1968)). Here, petitioner was fully accorded his right to confront the victim at trial, and through counsel did so. He was further permitted to confront the victim at the postconviction evidentiary hearing, even though he had no constitutional right to do so at that stage of the proceedings. See Penton v. Kernan, 528 F.Supp.2d 1020, 1037 (S.D. Cal. 2007); Cureton v. Wilson, No. 1:05CV0623, 2006 WL 1720544, at *4 (N.D. Ohio June 22, 2006). Again, petitioner has cited, and I have found, no cases holding that the failure to grant a new trial based on a subsequent recantation by a witness who was subject to cross-examination at trial violates the Confrontation Clause. On the contrary, the Supreme Court has explained that so long as a defendant had a full opportunity to explore any problems in a witness's testimony through cross-examination, the Confrontation Clause is not violated even if that "testimony is marred by forgetfulness, confusion, or evasion." Delaware v. Fensterer, 474 U.S. 15, 22 (1985).
Despite his attempts to dress his claims in constitutional language, petitioner asserts nothing more than that he has newly discovered evidence which shows that he is actually innocent of the crimes for which he was convicted. No matter how compelling, in a non-capital case such as this one such evidence simply does not provide a basis for federal habeas corpus relief. Accordingly, the Court should deny petitioner's application for the writ of habeas corpus.
As amended by the Antiterrorism and Effective Death Penalty Act, section 2253 provides that a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1). The statute further provides that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). As the Sixth Circuit has noted, this language represents a codification of the Supreme Court's decision in Barefoot v. Estelle, 463 U.S. 880 (1983), and "[t]he AEDPA thus makes no change to the general showing required to obtain a certificate[.]" Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997); accord Slack v. McDaniel, 529 U.S. 473, 483 (2000). Although the statute does not define what constitutes a "substantial showing" of a denial of a constitutional right, the burden on the petitioner is obviously less than the burden for establishing entitlement to the writ; otherwise, a certificate could never issue. Rather, the courts that have considered the issue have concluded that "`[a] substantial showing requires the applicant to "demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues (in a different manner); or that the questions are adequate to deserve encouragement to proceed further."'" Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999) (quoting Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot, 463 U.S. at 893 n.4)); accord Slack, 529 U.S. at 483-84. Although the substantive standard is the same, "[t]he new Act does, however, require that certificates of appealability, unlike the former certificates of probable cause, specify which issues are appealable." Lyons, 105 F.3d at 1073. (citing 28 U.S.C. § 2253(c)(3)).
Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a), 28 U.S.C. foll. § 2254. The rule tracks § 2253(c)(3)'s requirement that any grant of a certificate of appealability "state the specific issue or issues that satisfy the showing required by § 2253(c)(2)," Rule 11(a), but omits the requirement contained in the pre-amendment version of Federal Rule of Appellate Procedure 22(b)(1) that the court explain "why a certificate should not issue." FED. R. APP. P. 22(b)(1) (version effective prior to 2009 amendment); see id., advisory committee note, 2009 amendments. In light of the new Rule 11 requirement that the Court either grant or deny the certificate of appealability at the time of its final adverse order, I include a recommendation regarding the certificate of appealability issue here.
If the Court accepts my recommendation regarding the merits of petitioner's claim, the Court should also deny petitioner a certificate of appealability. As explained above, it is well established that a claim of actual innocence is not cognizable on habeas review, and that newly discovered evidence is not considered in reviewing the sufficiency of the evidence. Further, as explained above, it is clear that the trial court's failure to grant petitioner a new trial did not deprive him of his Sixth Amendment rights to a jury trial and to confront the witnesses. Thus, the resolution of petitioner's claim is not reasonably debatable, and the Court should deny petitioner a certificate of appealability.
In view of the foregoing, the Court should conclude that the state courts' resolution of petitioner's claims did not result in a decision which was contrary to, or which involved an unreasonable application of, clearly established federal law. Accordingly, the Court should deny petitioner's application for the writ of habeas corpus.
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as provided for in FED. R. CIV. P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. See Willis v. Secretary of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991). Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Within fourteen (14) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections.
