25 F.3d 363 (6th Cir. 1994), 93-1704, Kelly v. Withrow

Docket Nº:93-1704.
Citation:25 F.3d 363
Party Name:Leo KELLY, Jr., Petitioner-Appellant, v. Pamela WITHROW, Warden, Respondent-Appellee.
Case Date:June 02, 1994
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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25 F.3d 363 (6th Cir. 1994)

Leo KELLY, Jr., Petitioner-Appellant,


Pamela WITHROW, Warden, Respondent-Appellee.

No. 93-1704.

United States Court of Appeals, Sixth Circuit

June 2, 1994

Argued April 25, 1994.

Rehearing Denied July 8, 1994.

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Kenneth M. Mogill (argued and briefed), Mogill, Posner & Cohen, Detroit, MI, Leo E. Kelly, Jr., Alger Maximum Correctional Facility, Munising, MI, for petitioner-appellant,

Kathleen Davison Hunter, Asst. Atty. Gen. (argued and briefed), Office of the Atty. Gen., Habeas Div., Lansing, MI, for respondent-appellee.

Before: GUY and NELSON, Circuit Judges; and LIVELY, Senior Circuit Judge.

LIVELY, Senior Circuit Judge.

This appeal from denial of a petition for a writ of habeas corpus raises three issues: (1) whether the state prosecutor exercised preemptory challenges during voir dire to exclude black potential jurors solely on account of their race; (2) whether the trial court's denial of the petitioner's motion for a change of venue in the face of extensive media coverage of the crime denied the petitioner his right to a trial by an impartial jury; and (3) whether the trial court violated due process and the petitioner's privilege against compulsory self-incrimination by requiring him to submit to a polygraph test and permitting the psychiatrists who administered the polygraph to testify.



The petitioner Leo Kelly was a student at the University of Michigan. On April 17, 1981, Kelly threw a "Molotov cocktail" into the hallway at Bursley Hall, the predominantly freshmen dormitory in which he was living. When students came into the hall from their rooms Kelly began firing at them with a sawed-off shotgun. Edward Siwick, a freshman student, and Douglas McGreaham, a resident advisor, were shot and killed. Both victims were white; Leo Kelly is black.

Kelly was arrested and pled not guilty by reason of insanity. Consequently, the trial judge ordered Kelly to undergo a series of psychological tests, including a polygraph test to determine if Kelly's alleged amnesia regarding the killings was genuine. Kelly "failed" the polygraph test. Although the results of the polygraph test were later ruled inadmissible, the psychiatrists who administered the psychological tests and oversaw the polygraph were allowed to testify at trial. The court did not permit them to testify concerning the results of the polygraph.

Jury selection began on May 17, 1982, and continued for four days. Many jurors were excused for cause and both sides used all

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available peremptory challenges. Among those challenged by the prosecution were six black potential jurors, the only African-Americans in the venire. On May 20, after the fifth black juror had been stricken by the prosecution, the defense counsel raised an objection to the allegedly racial challenges. The prosecution responded to the objection, stating that the challenges were not racially motivated, but even if they had been racially motivated, such strikes were permitted. The court held that under existing law, "the right of either side to exercise its peremptory challenge in and of itself ... is unchallengeable. They have an absolute right to exercise those challenges and to give no reason whatsoever." Subsequently, the prosecution struck Bonnie Washington, the sixth and final black juror.


Kelly was convicted by an all-white jury on June 21, 1982, and sentenced to life in prison. The Michigan Court of Appeals affirmed the jury verdict in 1985. However, before the Michigan Supreme Court ruled on the application for leave to appeal, the United States Supreme Court handed down its decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in which the Court found that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race...." 476 U.S. at 89, 106 S.Ct. at 1719. Instead of ruling on the application for leave to appeal, the Michigan Supreme Court vacated the judgment of the court of appeals and remanded the case to that court for review in light of Batson. The court of appeals remanded the case to the trial court.

The trial court held a full hearing on July 31, 1987. On September 18, 1987, the trial judge ruled that while Kelly had established a prima facie case of purposeful discrimination, the prosecutors had given acceptable race-neutral explanations that satisfied the Batson standard. The Michigan Court of Appeals affirmed the trial court's conclusions and the Michigan Supreme Court denied leave to appeal.


The district court referred Kelly's habeas corpus petition to a magistrate judge who filed a lengthy report in which he recommended that the petition be denied. Kelly's attorney filed objections to the report and recommendation. Instead of setting forth specific objections, however, he referred to his earlier briefs in support of the petition and stated, "In the interests of brevity and avoidance of repetition, each of these pleadings is incorporated by reference herein."

The district court approved and adopted the recommendation of the magistrate judge, 822 F.Supp. 416. In the judgment dismissing the case District Judge Benjamin F. Gibson wrote that he had "given new consideration and made a de novo determination of those portions to which specific objection has been made."


Before reaching the substantive issues raised by the petitioner, we must deal with the respondent's assertion that Kelly waived the right to appeal by failing to file "specific objections" to the magistrate judge's report and recommendations.


Exercising its supervisory power over the district courts, this court held in United States v. Walters, 638 F.2d 947, 949-50 (1981), that a party must file timely objections to a magistrate's report with the district court in order to preserve the right to appeal. The purpose of such objections is to provide the district court "with the opportunity to consider the specific...

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