Kelly v. Withrow
| Decision Date | 08 July 1994 |
| Docket Number | No. 93-1704,93-1704 |
| Citation | 25 F.3d 363 |
| Parties | Leo KELLY, Jr., Petitioner-Appellant, v. Pamela WITHROW, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
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.
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.
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 contentions of the parties and to correct any errors immediately." Id. at 950. The Supreme Court upheld this rule in Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), a habeas corpus case. The Court stated that "[t]he filing of objections to a magistrate's report enables the district judge to focus attention on those issues--factual and legal--that are at the heart of the parties' dispute." Id. at 147, 106 S.Ct. at 471 (footnote omitted).
Cir.1987), we stated that "only those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have."
The only case we have found in which a party attempted to incorporate previous filings by reference in objections to a magistrate's report and recommendations provides little help. In Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th Cir.1991), the party who lost before the magistrate filed a document in which she specifically objected to the magistrate's determination to deny her request for relief and stated that she "supported" her objections by relying on her earlier brief in support of her motion for summary judgment. The record disclosed, however, that the party had previously filed neither a summary judgment motion nor a brief. In holding that the party had waived appellate review we wrote:
A general objection to the entirety of the magistrate's report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the magistrate useless. The functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. The duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act.
The requirement for specific objections to a magistrate judge's report is not jurisdictional and a failure to comply may be excused in the interest of justice. Kent v. Johnson, 821 F.2d 1220, 1222-23 (6th Cir.1987). In the present case, unlike in Howard, the objections directed the district judge's attention to specific issues decided by the magistrate contrary to Kelly's position. The district judge apparently had no problem in focusing on the specific areas of disagreement between the parties. Thus, the objections served the purposes of the requirement that objections be specific.
We do not pronounce a general rule that every attempt to incorporate other documents by reference in lieu of spelling out specific objections to a magistrate's report will suffice. The circumstances of this case--in particular, the district judge's acknowledgment that he was able to understand and review the specific determinations of the magistrate objected to by the petitioner--lead us to conclude that we should consider the merits of this appeal. We caution the attorneys of the circuit that a concise statement of specific holdings of the magistrate judge to which exception is taken is the preferred and safer course.
Although Kelly made out a prima facie case of intentional discrimination by showing that the prosecutor exercised peremptory challenges to remove all African-Americans called as jurors in his case, the state trial judge, after a hearing, ruled that the prosecutor had given satisfactory non-discriminatory reasons for each peremptory strike. The prosecutor may not rely on a general assertion that the peremptories were exercised without racial motivation, but "must articulate a neutral explanation related to the particular case to be tried." Batson, 476 U.S. at 98, 106 S.Ct. at 1724 (footnote omitted).
Both prosecutors involved in selection of the jury that tried Kelly filed detailed affidavits in which t...
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