JEFFREY J. HELMICK, District Judge.
Before me is the March 22, 2016 Report and Recommendation of Magistrate Judge Nancy A. Vecchiarelli, recommending denial of Petitioner Marqus Leon Brown's action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 24). Also before me are the Petitioner's objections. (Doc. No. 27). For the reasons stated below, I adopt the Magistrate Judge's recommendations as set forth in the Report and Recommendation.
A district court must conduct a de novo review of "any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject or modify the recommended disposition, receive further evidence, or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3); see also Norman v. Astrue, 694 F.Supp.2d 738, 740 (N.D. Ohio 2010). "De novo determination requires `fresh consideration' of a magistrate judge's recommendation, independent of the magistrate judge's conclusions." 14 MOORE'S FEDERAL PRACTICE § 72.11[2][a] (3d 2017). In conducting a de novo review, the court need not conduct a de novo hearing on the matter. Lifeng Chen v. New Trend Apparel, Inc., 8 F.Supp.3d 406, 416 (S.D.N.Y. 2014), citing United States v. Raddatz, 447 U.S. 667, 675-76 (1980).
Magistrate Judge Vecchiarelli's Report initially set forth the background as contained in the state court appellate opinion. She then detailed the state court proceedings and filings in this Court. As there are no objections to this portion of the Report, it is incorporated and adopted as set forth.
Contained in that recitation of the background are the grounds for relief in the petition and amended petition as follows:
(Doc. No. 24 at pp. 9-10).
Objections by pro se litigants are to be interpreted leniently and liberally construed. Erickson v. Pardus, 551 U.S. 89 (2007). A petitioner must make specific objections to a magistrate's report in order to preserve his claims for appellate review. Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). These objections "must be clear enough to enable the district court to discern those issues that are dispositive and contentious." Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995) (citing Howard v. Sec'y of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)). See also Austin v. Bedford Township Police Dep't., 859 F.Supp.2d 883, 888 (E.D. Mich. 2011).
In this case, the Petitioner objects to the Magistrate Judge's recommendations as to the first three grounds for relief. As he does not object to the fourth and fifth grounds for relief set forth in his amended petition, I adopt the Recommendation as to those aspects of the Report. I now turn to address the objections in the order presented by the Petitioner.
In his first objection:
(Doc. No. 27 at p. 2).
As to this claim the Magistrate Judge found the claim was raised on direct appeal. The state appellate court did not conduct a merits review because the Petitioner did not lodge an objection to this instruction at trial. The state appellate court did review the claim for plain error and found none. State v. Brown, No. 2012CA00040, 2013 WL 2390254 at *6 (2013). The Magistrate Judge then concluded the claim to be procedurally defaulted because the state court clearly and expressly relied on a state procedural bar despite their alternative merits analysis. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989). In addition, the Magistrate Judge noted Petitioner did not argue cause for, or prejudice resulting from his procedural default. She also noted he did not contend actual innocence to excuse his procedural default.
The Magistrate Judge also determined this ground for relief was not cognizable on federal habeas review as it was based on an alleged error of state law. This was because the Petitioner did not show there was an error in admitting this evidence nor was the alleged error so grievous that it undermined the fundamental fairness of the trial. For these reasons, the Magistrate Judge found the claim was not recognizable for habeas review.
Petitioner objects to these findings arguing review on the merits is warranted "because it so infected the entire trial that the resulting conviction violates due process." (Doc. No. 27 at p. 3). Petitioner is correct insofar as the standard for obtaining habeas relief on an improper state-court jury instruction requires: "a petitioner must show that `the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned.'" Patterson v. Caruso, 219 Fed. Appx. 451, 454 (6
The Petitioner's second objection challenges the "Magistrate's findings that the state court's decision that the jury made a rational decision to convict petitioner based on sufficient evidence was neither contrary to, nor an unreasonable application of,
(Id. at p. 6).
In her Report the Magistrate Judge discussed the holding of Jackson, noting, "[T]he Jackson inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but [ ] whether it made a rational decision to convict or acquit. Herrera v. Collins, 506 U.S. 390, 401 (1993)." Next, the Magistrate Judge discussed the two levels of deference afforded to a sufficiency of the evidence claim. See Tucker v. Palmer, 541 F.3d 652, 656 (6
In his objection, the Petitioner reiterates arguments as to the DNA evidence, the testimony of the victim, the circumstantial evidence, and the exculpatory evidence which includes his alibi, semen on the bedspread, and other issues as to the identification of the perpetrator. (Doc. No. 27 at pp. 7-17). He claims that in viewing the evidence in a light most favorable to the prosecution, under Jackson, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, which is a contrary finding of the state appellate court. I disagree.
In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court "held a state prisoner is entitled to habeas corpus relief if a federal judge finds that `upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" Id. at 324, 99 St. Ct. 2781." McDaniel v. Brown, 558 U.S. 120, 121 (2010). The Jackson Court addressed the inquiry under a sufficiency of the evidence argument as follows:
Jackson, at 318-19. (Emphasis in original and footnotes omitted).
In this instance, the state appellate court considered the Petitioner's arguments noting that reversing a conviction as against the manifest weight of the evidence was "reserved for only the `exceptional case in which the evidence weighs heavily against the conviction.'" State v. Brown, 2013 at *3. Petitioner's objections are the same arguments raised before the Magistrate Judge and the state court on his direct appeal. Having carefully reviewed Petitioner's argument, objections, and the state appellate opinion in his appeals, I do not find this to be an exceptional case or that jury's determination was unreasonable. Petitioner's objection as to his first ground for relief are overruled.
The Petitioner's final objection takes issue with the Magistrate Judge's finding he failed to demonstrate he was denied a fair trial due to the prosecutorial misconduct during closing argument.
In her Report, the Magistrate Judge analyzed Petitioner's claim under Darden v. Wainwright, 477 U.S. 168 (1986), addressing the standard for prosecutorial misconduct in habeas cases. The Report also quoted from the state appellate court opinion which addressed the offending statement by the prosecutor in closing argument:
State v. Brown, 2013 WL 2390254 at *5-6. The Magistrate Judge found the Petitioner was unable to demonstrate that the state appellate court decision was contrary to or an unreasonable application of Darden.
Here Petitioner's objection challenges the prosecutor's remarks and the trial court's limiting instruction. Specifically, he claims the "trial court's instruction was not consistent with clearly established federal law. It, in essence, confirmed the false statement of law made by the prosecutor. As a result, it affected the jury's ability to consider Petitioner's alibi defense. The jury most likely ignored it altogether." (Doc. No. 27 at pp. 18-19). I disagree.
As the Magistrate Judge noted, the Petitioner's argument (also presented to her) was misplaced as it concerned state law, not federal law. As the Petitioner offers nothing new in this renewed argument nor any persuasive case law to support his position, his objection as to this ground for relief is likewise denied.
For the reasons stated above, the March 22, 2016 Report and Recommendation of Magistrate Judge Vecchiarelli (Doc. No.24) is adopted as the Order of this Court. The Petition and Amended Petition are dismissed with prejudice.
A habeas corpus petitioner is not entitled to a certificate of appealability as a matter of right, but must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c) (2). The petitioner need not demonstrate he should prevail on the merits. Rather, a petitioner must demonstrate "that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). In this case, Mr. Brown's petition does not meet this standard.
For the reasons set forth in this decision, I certify there is no basis on which to issue a certificate of appealability. 28 U.S.C. § 2253; Fed. R. App. P. 22(b).
So Ordered.
