Cameron v. Birkett
| Decision Date | 07 December 2004 |
| Docket Number | No. CIV.03-40211.,CIV.03-40211. |
| Citation | 348 F.Supp.2d 825 |
| Parties | Calvin CAMERON, Petitioner, v. Thomas BIRKETT, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Calvin Cameron, Eastlake, MI, Pro Se.
Brad H. Beaver, Michigan Department of Attorney General, Habeas Corpus Division, Brenda E. Turner, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Thomas Birkett, Warden, Respondent.
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION
Before the Court is Petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2254 and the Report and Recommendation of the Honorable Paul J. Komives, United States Magistrate Judge. The Magistrate Judge recommends that this Court deny Petitioner's motion.
The Court's standard of review for a Magistrate Judge's Report and Recommendation depends upon whether a party files objections. If a party does not object to the Report and Recommendation, the Court does not need to conduct a review by any standard. See Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D.Mich.2002) (Gadola, J.). If a party does object to portions of the Report and Recommendation, the Court reviews those portions de novo. Lardie, 221 F.Supp.2d at 807. The Federal Rules of Civil Procedure dictate this standard of review in Rule 72(b), which states, in relevant part, that
[t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.
Fed.R.Civ.P. 72(b). Here, because Petitioner filed objections, this Court reviews de novo those portions to which an objection has been made. See Lardie, 221 F.Supp.2d at 807.
De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge; the Court may not act solely on the basis of a Magistrate Judge's Report and Recommendation. See 12 Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil 2d § 3070.2 (1997); see also Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir.1981). The Court may supplement the record by entertaining additional evidence, but is not required to do so. 12 Wright, Federal Practice § 3070.2. After reviewing the evidence, the Court is free to accept, reject, or modify the findings or recommendations of the Magistrate Judge. See Lardie, 221 F.Supp.2d at 807. If the Court accepts a Report and Recommendation, the Court is not required to state with specificity what it reviewed; it is sufficient for the Court to state that it engaged in a de novo review of the record and adopts the Report and Recommendation. See id.; 12 Wright, Federal Practice § 3070.2.
Petitioner filed a six-page "Petitioner's Objections to Magistrate's Report and Recommendation" containing objections to the Magistrate Judge's conclusion that the identification testimony was sufficient to support the jury's determination. The Court has reviewed the Report and Recommendation to which Petitioner has objected and the underlying evidence and filings in the record. Having conducted this review under the de novo standard as detailed above, the Court concludes that the Magistrate Judge's reasoning and conclusions are sound.
ACCORDINGLY, IT IS HEREBY ORDERED that Petitioner's objections [docket entry 39] are OVERRULED.
IT IS FURTHER ORDERED that the report and recommendation [docket entry 35] is ACCEPTED and ADOPTED as the opinion of this Court and Petitioner's application for a writ of habeas corpus under 28 U.S.C. § 2254 [docket entry 1] is DENIED.
IT IS FURTHER ORDERED that if Petitioner desires to seek a certificate of appealability ("COA"), Petitioner may file a MOTION for a COA within TWENTY-ONE (21) DAYS of filing a Notice of Appeal and shall support this motion with an appropriate brief, both of which shall comply with the Local Rules of this Court. See Castro v. United States, 310 F.3d 900, 903 (6th Cir.2002) . Respondent may file a response with an appropriate brief, both of which shall comply with the Local Rules, within FOURTEEN (14) DAYS of service of Petitioner's motion for a COA.
SO ORDERED.
REPORT AND RECOMMENDATION
I. RECOMMENDATION: The Court should deny petitioner's application for the writ of habeas corpus.
II. REPORT:
A. Procedural History
1. Petitioner Calvin Cameron is a state prisoner, currently confined at the Standish Maximum Correctional Facility in Standish, Michigan.
2. On October 8, 1998, petitioner was convicted of one count of conspiracy to commit first degree murder, MICH. COMP. LAWS §§ 750.157a, 750.316, following a jury trial in the Saginaw County Circuit Court.1 On November 10, 1998, he was sentenced to a term of life imprisonment.
3. Following his sentencing, petitioner filed a motion in the trial court for a new trial or for judgment notwithstanding the verdict, arguing that there was insufficient evidence of a conspiracy to support petitioner's conviction. The trial court denied petitioner's motion. See People v. Cameron, No. 98-015150-FC (Saginaw County, Mich., Cir. Ct. Sept. 8, 1999).
4. Petitioner thereafter appealed as of right to the Michigan Court of Appeals raising, through counsel, the following claims:
I. THE JURY'S VERDICT WAS AGAINST THE GREAT WEIGHT OF THE EVIDENCE.
II. IT WAS ERROR FOR THE ASSISTANT PROSECUTOR TO INTRODUCE EVIDENCE OF DEFENDANT-APPELLANT'S ADVICE TO HIS CO-DEFENDANT TO REMAIN SILENT AS AN ADMISSION AGAINST HIM.
The court of appeals found no merit to petitioner's claims, and affirmed his conviction and sentence. See People v. Whittington, No. 216045, 2001 WL 682230 (Mich.App. Apr. 20, 2001) (per curiam).
5. Petitioner sought leave to appeal these three issues to the Michigan Supreme Court. The Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Cameron, 465 Mich. 882, 635 N.W.2d 315 (2001).
6. Petitioner thereafter filed a motion for relief from judgment in the trial court pursuant to MICH. CT. R. 6.500-.508, raising the following claims:
I. THE PROSECUTION FAILED TO PROVE BEYOND A REASONABLE DOUBT THE DEFENDANT'S GUILT OF CONSPIRACY TO COMMIT FIRST DEGREE MURDER. TESTIMONY DRAWN FROM THE PROSECUTION EVIDENCE WAS ONLY PYRAMIDED ON INFERENCE
AND NONE SUPPORTED PRESUMPTIONS.
II. THE JURY VERDICT WAS AGAINST THE GREAT WEIGHT OF THE EVIDENCE.
III. IT WAS ERROR FOR THE ASSISTANT PROSECUTOR TO INTRODUCE EVIDENCE OF DEFENDANT'S ADVICE TO HIS CO-DEFENDANT TO REMAIN SILENT AS AN ADMISSION AGAINST HIM.
IV. WHETHER THE IN-COURT IDENTIFICATION HAD A SUFFICIENT INDEPENDENT BASIS TO BE PRESENTED TO THE JURY.
V. DEFENDANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, UNDER BOTH STATE AND FEDERAL LAWS.
VI. CAUSE AND PREJUDICE. DEFENDANT CAMERON HAS ESTABLISHED AN ENTITLE[MENT] TO RELIEF FROM JUDGEMENT [sic] OF HIS CONVICTION AND SENTENCE BY DEMONSTRATING GOOD CAUSE FOR HIS FAILURE TO RAISE THE PRESENT CLAIMS ON DIRECT APPEAL OR IN A MOTION AND ACTUAL PREJUDICE FROM THE ALLEGED IRREGULARITIES IN THIS CRIMINAL PROCESS.
On April 24, 2002, the trial court denied petitioner's motion for relief from judgment, finding no merit to the claims. See People v. Cameron, No. 98-015150-FC-3 (Saginaw County, Mich., Cir. Ct. Apr. 24, 2002). Both the Michigan Court of Appeals and the Michigan Supreme Court denied petitioner's applications for leave to appeal in standard orders. See People v. Cameron, 468 Mich. 893, 661 N.W.2d 239 (2003); People v. Cameron, No. 241922 (Mich.App. Oct. 2, 2002).
7. Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus on August 25, 2003. As grounds for the writ of habeas corpus, he raises the six claims that he raised in his motion for relief from...
To continue reading
Request your trial
-
Moritz v. Woods
...an analysis of the merits of petitioner's defaulted claims, the Court must consider the merits of these claims. See Cameron v. Birkett, 348 F.Supp.2d 825, 836 (E.D.Mich.2004). The failure to raise a Constitutional claim as strong as the absence of counsel as in this case is ineffective assi......
-
Taylor v. Sheldon
...443 U.S. at 324 n.16). Thus, the federal court must look to state law to determine the elements of the crime. Cameron v. Birkett, 348 F.Supp.2d 825, 838-839 (E.D. Mich. 2004) (quoting Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999), cert. denied, 528 U.S. 1170 (2000)). The state co......
-
Bacon v. Klee
...addresses the merits of several of Petitioner's claims instead of engaging in a procedural default analysis. Cameron v. Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004). 5. Even assuming that Petitioner had established cause for his default, he would be unable to satisfy the prejudice pr......
-
Crummie v. Bauman
...an analysis of the merits of the defaulted claims, it would be easier to consider the merits of the claims. See Cameron v. Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004). Petitioner could not procedurally default his ineffective assistance of appellate counsel claim because post-convic......