Rhea v. Jones, Case No. 1:06-cv-41.

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtRobert Holmes Bell
Citation622 F.Supp.2d 562
PartiesAlan Eugene RHEA, # 190791, Petitioner, v. Kurt JONES, Respondent.
Docket NumberCase No. 1:06-cv-41.
Decision Date26 November 2008
622 F.Supp.2d 562
Alan Eugene RHEA, # 190791, Petitioner,
Kurt JONES, Respondent.
Case No. 1:06-cv-41.
United States District Court, W.D. Michigan, Southern Division.
November 26, 2008.

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Alan Eugene Rhea, Carson City, MI, pro se.

Laura A. Cook, MI Dept. Attorney General (Corrections), Lansing, MI, for Respondent.



This matter is before the Court on Petitioner Alan Rhea's objections to Magistrate Judge Joseph G. Scoville's Report and Recommendation ("R & R") recommending that Petitioner's § 2254 petition for writ of habeas corpus be denied. (Dkt. No. 29.) The R & R was duly served on the parties. Plaintiff filed objections to

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the R & R on December 10, 2007. (Dkt. No. 34.)

This Court is required to make a de novo review upon the record of those portions of the R & R to which specific objections have been made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir.1995) ("[A] general objection to a magistrate's report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious."). Although the Magistrate Judge's R & R is reviewed de novo, this Court must review the state court proceedings consistent with the standards set forth in 28 U.S.C. § 2254.

Petitioner objects to the R & R on several grounds. Petitioner's first objection is an additional argument that was not raised in his § 2254 petition. In his petition, Petitioner argued that there was insufficient evidence to convict him of first-degree home invasion because there was insufficient evidence that he was ever inside the dwelling that he was accused of invading. (Dkt. No. 1, Pet. 19.) In his objections, Petitioner argues that there was insufficient evidence that he possessed a weapon while in the dwelling. (Dkt. No. 34, Obj. 3.) See Mich. Comp. Laws § 750.110a(2). Absent compelling reasons, a party is not allowed to raise at the district court stage new arguments or issues that were not presented to the magistrate judge. 28 U.S.C. § 631 et seq.; Murr v. United States, 200 F.3d 895, 902 (6th Cir.2000) (citing United States v. Waters, 158 F.3d 933, 936 (6th Cir.1998)). Petitioner does not present any "compelling reasons" for not raising this argument in his petition. In any event, Petitioner's argument is without merit. As the language of the statute indicates, being armed with a weapon is one element of the offense of first-degree home invasion, but it is not a necessary element if it is proved that another person is lawfully present in the dwelling "at any time while [defendant] is entering, present in, or exiting the dwelling . . . ." Mich. Comp. Laws § 750.110a(2). The Michigan Court of Appeals concluded that "there was sufficient evidence to prove that defendant was in the house while Mr. Fournier's mother was present," based in part on the fact that Mrs. Fournier exclaimed "What are you doing in my house?" when she saw Petitioner. Michigan v. Rhea, No. 235548, slip op. at 2, 2003 WL 1439850 (Mich.App. Mar. 20, 2003). A fact-finder could have reasonably inferred from this evidence that Petitioner and Mrs. Fournier were present in the house at the same time. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (noting the standard in § 2254 proceedings for review of the sufficiency of the evidence).

Petitioner also argues that, with respect to the claims that he procedurally defaulted for not making a contemporaneous objection, the law regarding contemporaneous objection was not firmly established because Michigan appellate courts have routinely reviewed claims involving constitutional due process rights. Petitioner apparently refers to the following claims that the R & R mentions were found by the Michigan Court of Appeals to have been procedurally defaulted: "petitioner's challenge to the method of polling the jury; petitioner's claim that he was sentenced on the basis of inaccurate information; and petitioner's claim of ineffective assistance of counsel at sentencing." (R & R at 588.) Petitioner does not offer any support for the argument that any of his defaulted claims are among those where "Michigan courts regularly waived contemporaneous objection" due to concerns regarding "constitutional due process rights." Salem v.

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Yukins, 414 F.Supp.2d 687, 697 (E.D.Mich. 2006). Nevertheless, even if this Court were to find that these defaulted claims should be reviewed, the Court agrees with the analysis and determination of the Magistrate Judge that these claims are meritless, for the reasons stated in the R & R.

Finally, Petitioner objects to the Magistrate Judge's determination that, because the Michigan Court of Appeals and the Michigan Supreme Court relied upon Michigan Court Rule 6.508(D) in denying Petitioner leave to appeal certain of his claims, those courts intended to bar federal review of such claims, citing Abela v. Martin, 380 F.3d 915 (6th Cir.2004). The court in Abela determined that the Michigan Supreme Court's one sentence denial of review on the basis of Michigan Court Rule 6.508(D) was insufficient to show that the state courts relied on an "independent and adequate" state procedural bar, where the lower courts had ruled on the merits of the claim. Abela, 380 F.3d at 924 (distinguishing the facts from Simpson v. Jones, 238 F.3d 399 (6th Cir.2000), and Burroughs v. Makowski, 282 F.3d 410 (6th Cir.2002)). However, Petitioner's case does not have the distinguishing factors present in Abela, because both the Michigan Court of Appeals and the Michigan Supreme Court denied review, citing Rule 6.508(D). See McCray v. Metrish, 232 Fed.Appx. 469, 478 n. 1 (6th Cir.2007) ("In [Petitioner's] case, Luberda [v. Trippett, 211 F.3d 1004 (6th Cir.2000)], and Abela, the Michigan Supreme Court relied on Rule 6.508(D) to deny review of a claim. However, in McCray's case and Luberda— but not in Abela—the state court of appeals also relied on Rule 6.508(D), `making it clearer that the Michigan Supreme Court was also invoking [a procedural] bar when it referred to M.C.R. 6.508(D).'" (quoting Abela II, 380 F.3d at 923)).

Having reviewed the § 2254 petition, the R & R, Petitioner's objections, and the pertinent portions of the underlying record, the Court finds that the R & R accurately recites the facts and correctly applies pertinent law.


IT IS HEREBY ORDERED that Petitioner's objections to the Report and Recommendation of the Magistrate Judge (Dkt. No. 34) are DENIED.

IT IS FURTHER ORDERED that the Report and Recommendation of the Magistrate Judge (Dkt. No. 29) is APPROVED and ADOPTED as the opinion of the Court.

IT IS FURTHER ORDERED that Petitioner's petition for writ of habeas corpus (Dkt. No. 1) is DENIED.


JOSEPH G. SCOVILLE, United States Magistrate Judge.

This is a habeas corpus proceeding brought by a state prisoner pursuant to 28 U.S.C. § 2254. Following his conviction in a jury trial, petitioner was sentenced by the Macomb County Circuit Court on July 6, 2001, to a term of 20-to-40 years' imprisonment for first-degree home invasion, MICH. COMP. LAWS § 750.110a(2), and a concurrent term of 2-to-4 years for felonious assault, MICH. COMP. LAWS § 750.82. The sentences were enhanced by petitioner's status as an habitual offender, fourth felony offense, under MICH. COMP. LAWS § 769.12. Petitioner's conviction and sentence were upheld on direct review, and the state courts denied petitioner's pro se application for post-conviction relief. This habeas corpus action followed.

The pro se habeas corpus petition raises eleven grounds for relief. In summary, petitioner asserts the following:

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(1) the evidence was insufficient to support petitioner's convictions for first-degree home invasion and felonious assault; (2) the trial court erred by permitting the prosecution to amend the information to change the date and location of the offense; (3) the trial court abused its discretion by denying petitioner's motion for a directed verdict; (4) the trial court violated petitioner's due process rights by sentencing him based upon improper considerations not reflected in the sentencing transcript; (5) petitioner's due-process rights were violated when: (a) the trial court failed to identify the four previous felony convictions supporting his sentence as a habitual offender; (b) the conviction dates for two of the previous offenses listed in the notice of habitual offender information were incorrect, and (c) the charging statutes were incorrect in the habitual offender information; (6) petitioner was denied a fair trial when the prosecutor introduced hearsay testimony; (7) the trial court erred in admitting hearsay testimony in violation of the Confrontation Clause; (8) defense counsel was ineffective when he failed to object to the improper hearsay testimony; (9) appellate counsel was ineffective when he failed to raise on direct appeal the issues presented by petitioner in his motion for relief from judgment; (10) petitioner's due process rights were violated when the trial court "failed to indicate on the record as to which charge the jury was being polled;" and (11) petitioner is entitled to re-sentencing because the trial court considered previous uncounseled convictions and other improper considerations in imposing sentence.

(Petition, ¶ 14 and attachments). Respondent has filed an answer to the petition, supported by the state-court record. The answer challenges each ground on its merits, but also asserts that...

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