Kowalak v. Scutt, Case No. 01-cv-40009.

• Decision Date: 03 May 2010
• Docket Number: Case No. 01-cv-40009.
• Citation: 712 F.Supp.2d 657
• Parties: Tomas L. KOWALAK, Petitioner,v.Debra SCUTT, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

712 F.Supp.2d 657

Tomas L. KOWALAK, Petitioner,
v.
Debra SCUTT, Respondent.

Case No. 01-cv-40009.

United States District Court,
E.D. Michigan,
Southern Division.

May 3, 2010.

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Tomas Kowalak, Muskegon, MI, pro se. ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING PETITIONER'S PETITIONER FOR A WRIT OF HABEAS CORPUSSTEPHEN J. MURPHY, III, District Judge.

In this action, pro se Plaintiff Tomas Kowalak has filed a petition for a writ of habeas corpus. He was convicted in state court for first degree murder in connection with the murder of his mother, and later sentenced to life in prison. In his habeas petition, Kowalak identifies ten separate issues he alleges support granting him a writ. The Court referred the matter to Magistrate Judge Paul J. Komives for all pretrial proceedings.

The matter now returns to the Court on the Report and Recommendation of Judge Komives. Docket no. 80. In his Report, Judge Komives recommends that the Court deny Kowalak's petition because all ten substantive claims in the petition lack merit. Although Respondent argues that all but one of Kowalak's claims are barred by Kowalak's procedural default in state court, Judge Komives concludes that whether or not the claims are defaulted presents a more difficult question than whether the claims have any substantive merit. Accordingly, Judge Komives considers the substance of the claims and concludes that none has merit. See Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir.1999) (“Although the procedural bar issue should ordinarily be resolved first, judicial economy sometimes dictates reaching the merits of [a claim or claims] if the merits are easily resolvable against a petitioner while the procedural bar issues are complicated.”). Kowalak has filed objections to the Report. Docket no. 81.

A District Court's standard of review for a magistrate judge's Report and Recommendation depends upon whether a party files objections to the Report. With respect to portions of a Report that no party objects to, the Court need not undertake any review at all. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). On the other hand, the Federal Rules of Civil Procedure provides that a district court “must determine de novo 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 28 U.S.C. § 636(b)(1) ( “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”).

The Court has conducted a de novo review of the record and finds that Kowalak's objections are without merit, as are his claims The Court agrees that the procedural default analysis in Kowalak's petition is significantly more complicated than the analysis of his substantive claims for relief, and agrees that the more judicious and prudent approach lies considering the substance of the claims. Judge Komives's reasoning and analysis in the Report with respect to the merits of the claims is sound and correct. He has fully considered Kowalak's

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arguments and the responses thereto, and has correctly resolved the issues raised in the petition in favor of Respondent. In his objections to the Report, Kowalak only raises arguments he made in his brief supporting his petition, arguments that Judge Komives properly considered, ultimately found unpersuasive, and later rejected.

Additionally, the Court will not issue a certificate of appealability in this case. A petitioner must obtain a certificate of appealability in order to appeal the district court's denial of a habeas petition for relief from a state conviction. 28 U.S.C. § 2253(c)(1)(A); Fed. R.App. P. 22(b)(1). ¹ A court may issue a certificate of appealability only if the petitioner “has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To meet this threshold, a petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Specifically, he must “demonstrat[e] 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.” Banks v. Dretke, 540 U.S. 668, 705, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). The Court concludes that jurists of reason would not find its assessment of Petitioner's claims debatable. The Court thus declines to issue Petitioner a certificate of appealability. Petitioner may request a certificate of appealability from the court of appeals if he wishes. See 28 U.S.C. § 2253(c)(1)(A).

WHEREFORE, it is hereby ORDERED that Petitioners objections to the Report and Recommendation (docket no. 81) are OVERRULED.

IT IS FURTHER ORDERED that the Report and Recommendation (docket no. 80) is ADOPTED as the opinion of the Court.

IT IS FURTHER ORDERED that the petition for a writ of habeas corpus is DENIED.

IT IS FURTHER ORDERED that the Court DECLINES to issue a certificate of appealability.

SO ORDERED.

REPORT AND RECOMMENDATIONPAUL J. KOMIVES, United States Magistrate Judge.

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* * * * * *

I. RECOMMENDATION: The Court should deny petitioner's application for the writ of habeas corpus.

II REPORT:A Procedural History

1. Petitioner Tomas L. Kowalak is a state prisoner, currently confined at the G. Robert Cotton Correctional Facility in Jackson, Michigan.

2. Petitioner was charged with first degree murder in connection with the murder of his mother. Prior to trial, petitioner filed an application for leave to file an interlocutory appeal, raising the following claim:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO QUASH AND/OR SUPPRESS NANCY MOORE'S TESTIMONY CONCERNING THREATS DEFENDANT ALLEGEDLY MADE TO THE HOMICIDE VICTIM.

The court of appeals initially denied petitioner's application for leave to appeal in a standard order. See People v. Kowalak, No. 186736 (Mich.Ct.App. July 17, 1995). Petitioner filed an application for leave to appeal in the Michigan Supreme Court which, in lieu of granting leave to appeal,

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remanded to the court of appeals for consideration of petitioner's claim as on leave granted. See People v. Kowalak, 449 Mich. 909, 538 N.W.2d 676 (1995). On remand, the court of appeals rejected petitioner's claim, concluding that the victim's hearsay statements to Nancy Moore were properly admissible as excited utterances under Mich. R. Evid. 803(2). See People v. Kowalak, 215 Mich.App. 554, 546 N.W.2d 681 (1996). Petitioner filed an application for leave to appeal this decision to the Michigan Supreme Court, which denied the application in a standard order. See People v. Kowalak, 453 Mich. 947, 557 N.W.2d 308 (1996).

3. On March 21, 1997, petitioner was convicted of first degree murder, Mich. Comp. Laws § 750.316, following a jury trial in the Oakland County Circuit Court. On April 29, 1997, he was sentenced to a mandatory term of life imprisonment without possibility of parole.

4. Petitioner appealed as of right to the Michigan Court of Appeals raising, through counsel, a single claim:

WHERE A PERIOD IN EXCESS OF FOUR YEARS ELAPSED BETWEEN THE DATE THE DEFENDANT-APPELLANT ALLEGEDLY PERPETRATED THE OFFENSE HE WAS CHARGED WITH AND THE DATE HIS JURY TRIAL COMMENCED, WAS THE DEFENDANT-APPELLANT IMPERMISSIBLY DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A “SPEEDY” TRIAL ON THE CHARGE THAT HAD BEEN LEVIED AGAINST HIM?

The court of appeals found no merit to petitioner's claim, and affirmed his conviction and sentence. See People v. Kowalak, No. 203164, 1998 WL 1988815 (Mich.Ct.App. Nov. 20, 1998) (per curiam).

5. Petitioner, proceeding pro se, sought leave to appeal this issue to the Michigan Supreme Court, as well as an additional claim that his appellate counsel rendered constitutionally ineffective assistance. The Supreme Court denied petitioner's application for leave to appeal in a standard order. See People v. Kowalak, 461 Mich. 925, 604 N.W.2d 684 (1999).

6. On February 13, 2001, petitioner filed a pro se application for the writ of habeas corpus, raising the following grounds for relief: (1) actual innocence and insufficient evidence; (2) ineffective assistance of appellate counsel; (3) ineffective assistance of trial counsel; (4) improper admission of hearsay evidence; (5) improper admission of unreliable scientific evidence; (6) denial of the right to present a defense by the exclusion of a defense witness's hearsay testimony; (7) improper jury instruction on premeditation; (8) suppression and destruction of evidence; (9) denial of an impartial jury through an extraneous jury influence; and (10) denial of a speedy trial. Respondent moved for summary judgment on the ground that all but two of petitioner's claims were unexhausted. On September 21, 2001, the Court entered an order dismissing the petition without prejudice based on petitioner's failure to exhaust his state court remedies.

7. On November 9, 2001, petitioner mailed a motion for relief from judgment pursuant to Mich. Ct. R. 6.500-.508 to the trial court. On November 20, 2001, the motion was returned to petitioner because the brief in support exceeded the page limit. Petitioner subsequently attempted to refile his motion, to no avail. Petitioner then filed an...