UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TONY TOREAL TOWNSEND,

Petitioner,

v.

BARRY D. DAVIS,

Respondent.

 /

Case No. 08-15159

HON. MARIANNE O. BATTANI

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT

 AND RECOMMENDATION AND DENYING THE PETITION FOR THE WRIT OF

HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Tony Townsend filed a Petition for Writ of Habeas Corpus under 28 U.S.C.

§ 2254, alleging various claims arising out of his state court criminal trial. (Doc. 1). The

Court referred this matter to Magistrate Judge Paul J. Komives for Report and

Recommendation (R&R). (Doc. 7). Magistrate Judge Komives issued his R&R,

recommending that the Court deny the petition and deny Townsend a certificate of

appealability. (Doc. 15). Petitioner objects to the R&R. (Doc. 21). For the reasons that

follow, the Court OVERRULES Petitioner’s objections, ADOPTS the R&R, and DENIES the

writ and the certificate of appealability. 

I. BACKGROUND

Petitioner Tony Townsend was convicted of first degree premeditated murder, MICH.

COMP. LAWS § 750.316(1)(a), first degree felony-murder, MICH. COMP. LAWS §

750.316(1)(b); possession of a firearm by a felon, MICH. COMP. LAWS § 750.224f; and

possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b,

following a jury trial in Wayne County Circuit Court. Townsend was sentenced to life in

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 The trial court vacated petitioner’s first-degree premeditated murder conviction

on double jeopardy grounds. 

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prison for the first degree felony-murder conviction, 40-60 months in prison for the felon in

possession of a firearm conviction, and two years in prison for the felony-firearm

conviction.1

Townsend appealed as of right to the Michigan Court of Appeals. Through counsel,

Petitioner raised the following five claims:

1. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE

DEFENDANT/APPELLANT A FAIR TRIAL WHEN IT BARRED THE

DEFENSE FROM EXERCISING A PEREMPTORY CHALLENGE OF

A PROSPECTIVE JUROR DESPITE THERE BEING NO OBJECTION

FROM THE PEOPLE.

2. THE DEFENDANT/APPELLANT WAS DENIED A FAIR TRIAL WHEN

THE TRIAL COURT JAILED A TESTIFYING WITNESS AND THEN

COMMENTED TO THE NEWS MEDIA THAT THE WITNESS WAS

LYING AND SHOULD NOT BE BELIEVED.

3. THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE

DEFENDANT/APPELLANT A FAIR TRIAL WHEN IT LIMITED THE

EXAMINATION OF A KEY WITNESS REGARDING A CRITICAL

CONVERSATION AND BY NOT REQUIRING THE PEOPLE TO

PRODUCE AN ENDORSED RES GESTAE WITNESS.

4. THE TRIAL COURT ERRED AND DENIED THE DEFENDANT/

APPELLANT A FAIR TRIAL WHEN IT ADMITTED THE PURPORTED

STATEMENT OF THE DEFENDANT/APPELLANT DESPITE

EVIDENCE THAT THE STATEMENT HAD BEEN COERCED.

5. THE TRIAL COURT ERRED AND DENIED THE DEFENDANT/

APPELLANT A FAIR TRIAL WHEN IT ADMITTED AS SUBSTANTIVE

EVIDENCE THE PRIOR TESTIMONY OF SEVERAL WITNESSES

WHO WERE PRESENT AT COURT AND WHO TESTIFIED.

(Doc. 8-13 at 43). The court of appeals rejected Townsend’s arguments and affirmed his

conviction and sentence. See, People v. Townsend, No. 252371, 2006 WL 287856 (Mich.

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Ct. App. Feb. 7, 2006) (per curiam). Proceeding pro se, Townsend sought leave to appeal

those five claims to the Michigan Supreme Court. The Supreme Court denied his

application for leave to appeal in a standard order. See, People v. Townsend, 718 N.W.2d

348 (Mich. 2006).

Townsend then filed a motion for relief from judgment in the trial court pursuant to

MICH. CT. R. 6.500-.508, raising the following five claims:

1. DEFENDANT’S FOURTEENTH AMENDMENT DUE PROCESS

RIGHTS WERE VIOLATED WHERE THE TRIAL COURT

IMPROPERLY COMBINED STEPS TWO AND THREE OF THE

BATSON INQUIRY, PLACED THE BURDEN OF PERSUASION OF

BATSON ON DEFENDANT AND, THEREFORE, IMPROPERLY

DENIED DEFENDANT OF HIS RIGHT TO PEREMPTORILY

REMOVE JUROR HILL; THUS, REQUIRING REVERSAL.

2. DEFENDANT’S FOURTEENTH AMENDMENT RIGHTS WERE

VIOLATED WHERE THE TRIAL COURT CLEARLY ERRED IN

DETERMINING THAT DEFENDANT HAD FAILED TO MAKE A

PRIMA FACIE SHOWING OF DISCRIMINATION IN THE FIRST

STEP OF THE BATSON INQUIRY.

3. DEFENDANT’S FOURTEENTH AMENDMENT DUE PROCESS

RIGHTS WERE VIOLATED WHERE THE TRIAL COURT ERRED IN

NOT QUESTIONING JURORS ABOUT THE EFFECT UPON THEM

OF PREJUDICIAL, EXTRANEOUS INFORMATION.

4. DEFENDANT WAS DENIED HIS SIXTH AND FOURTEENTH

AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF

COUNSEL WHERE TRIAL COUNSEL FAILED TO (A) OBJECT TO

THE ADMISSION OF THE PORTION OF OFFICER MCCALISTER’S

PRELIMINARY EXAMINATION TRANSCRIPT THAT GAVE

IMPROPER OPINION TESTIMONY THAT VIOLATED

DEFENDANT’S DUE PROCESS RIGHTS; (B) OBJECT TO THE

TESTIMONY OF THE VICTIM’S MOTHER, AND THE VICTIM’S

PHOTOGRAPH, AS IRRELEVANT, AND OBJECT TO THE

PHOTOGRAPHS AND COCKING OF FIREARMS THAT WERE

MORE PREJUDICIAL THAN PROBATIVE; (C) INVESTIGATE AND

CALL KEY WITNESSES TO SUPPORT DEFENSE THEORY; (D)

PRODUCE IMPORTANT CHARACTER EVIDENCE TO IMPEACH

OFFICER THOMAS; (E) OBJECT TO THE NUMEROUS INSTANCES

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OF PROSECUTORIAL MISCONDUCT, AND; (F) DO ALL THE

ABOVE WHICH, WHEN CONSIDERED CUMULATIVELY,

PREJUDICED DEFENDANT AND REQUIRES A NEW TRIAL.

5. DEFENDANT WAS DENIED HIS SIXTH AND FOURTEENTH

AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF

APPELLATE COUNSEL WHERE HIS APPELLATE COUNSEL

FAILED TO RAISE THE ABOVE ISSUES; THUS, HE HAS

ESTABLISHED GOOD CAUSE FOR RELIEF.

(Doc. 8-16 at 19). The trial court found Petitioner’s claims meritless and denied the motion.

(Id. at 72). The court of appeals and the Michigan Supreme Court denied Petitioner’s

applications for leave to appeal based on his “failure to meet the burden of establishing

entitlement to relief under MCR 6.508(D).” People v. Townsend, 769 N.W.2d 201 (Mich.

2008); People v. Townsend, No. 280287 (Mich. Ct. App. Apr. 16, 2008).

Townsend’s pro se habeas petition consists of the ten claims he raised in the state

courts. (Doc. 1). In assessing the merits, the Magistrate Judge relied on the facts as

recited by Michigan Court of Appeals on Petitioner’s direct appeal:

Defendant’s convictions arise out of the fatal shooting of Detroit Police Officer

Scott Stewart on the early morning of August 11, 2002. Defendant had

attended a party at the home of his sister, Linda Little, and her husband and

defendant’s codefendant, Kenneth Little, on Corbett Street in Detroit. By the

time Stewart and two other officers arrived in response to shots they heard

earlier coming from this location, the party had swelled to over one hundred

people. Stewart was in the process of arresting Little, when he was fatally

shot in the head.

(Doc. 15 at 5). The Magistrate Judge also reviewed and summarized the twenty-eight

pages of facts recited in Petitioner’s brief on direct appeal: 

[T]he prosecution’s evidence broke down into four general categories.

First, several officers testified as to the circumstances leading to their arrival

at the scene and actions once they arrived. Generally, they testified to

arriving at the scene, attempting to arrest or arresting one or more people,

and hearing gunshots. Some of the officers were able to describe in more

detail the shooting of Officer Stewart, testifying that Stewart was in the

process of arresting Little at the time. All of the officers testified that there

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were a number of people at the scene, and several described the scene as

chaotic. None of the officers was able to identify petitioner as the shooter.

The second category of witnesses consisted of various people at the

scene at the time of the shooting. These witnesses were, for the most part,

petitioner’s friends, relatives, or acquaintances. At trial, they generally

testified favorably to petitioner. However, they were each impeached with

either prior statements to the police or prior testimony given in response to

investigative subpoenas, in which they had implicated petitioner as the

shooter in various ways. These witnesses generally disavowed their earlier

statements, indicating that they had been coerced or fabricated by the police.

The third category of evidence consisted of various forensic testimony.

Most notably, clothes recovered from petitioner’s home was found to have

gunshot residue, and nine millimeter ammunition was recovered from

petitioner’s home. 

Finally, the prosecution presented evidence of petitioner’s

incriminating statements to the police. Lieutenant Roy McCalister was

determined to be an unavailable witness, and the prosecution was permitted

to introduce his testimony from the preliminary examination. At the

preliminary examination, Lt. McCalister testified that he advised petitioner of

his rights, and that petitioner initially denied still being at the scene when the

officers arrived to break up the party. Lt. McCalister did not record this

statement, because he did not believe it to be the truth. After it became

apparent to Lt. McCalister that petitioner would not give an incriminating

statement, he allowed petitioner to speak with his fiancé. Officer Michael

Carlisle testified that he first met petitioner at about 8:30 a.m. on the morning

of the shooting and brought him a sandwich at that time. He conceded that

petitioner had first given an exculpatory statement, but that this statement

had not been reduced to writing. Officer Derrick Thomas testified that later

in the day he advised petitioner of his rights and took a ten page statement

from petitioner, written by Thomas with each page initialed by petitioner. The

statement indicated that petitioner saw someone pointing a gun at Little, so

he shot once at the person who was pointing the gun at Little. He did not

know that Stewart, who was in plain clothes, was a police officer. Thomas

testified that petitioner added, in his own handwriting: “I am deeply sorry for

what I have done. I didn’t know he was an officer of the law. I’m sorry;

please forgive me.” Public Safety Officer Antonio Trupiano testified that he

was working as a detention officer at the jail, and that petitioner indicated to

Trupiano that he was sorry and didn’t know that Stewart was a police officer.

Petitioner testified on his own behalf. He denied making the statement

to the police, and claimed to have signed it only because he was told he

would be able to go home if he did so. He denied any involvement in the

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shooting death of Stewart, and claimed that his words of remorse were

merely an expression that he was sorry that an officer had been killed, not

that he was the killer.

(Id. at 5-7).

The Magistrate Judge issued a comprehensive fifty-two page R&R, recommending

that the Court deny Townsend’s petition and deny him a certificate of appealability. (Doc.

15). Petitioner’s objections to that R&R are now before the Court. (Doc. 21).

II. STANDARD OF REVIEW

A. Objections to a Magistrate Judge’s Report and Recommendation

A district court must conduct a de novo review of the parts of a magistrate judge’s

report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). The district

“court may accept, reject, or modify, in whole or in part, the findings or recommendations

made by the magistrate” judge. Id. The requirement of de novo review “is a statutory

recognition that Article III of the United States Constitution mandates that the judicial power

of the United States be vested in judges with life tenure.” United States v. Shami, 754 F.2d

670, 672 (6th Cir. 1985). Accordingly, Congress enacted 28 U.S.C. § 636(b)(1) to “insure[]

that the district judge would be the final arbiter” of a matter referred to a magistrate.

Flournoy v. Marshall, 842 F.2d 875, 878 (6th Cir. 1987).

The Sixth Circuit has stated that “[o]verly general objections do not satisfy the

objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). Only

specific objections are entitled to de novo review; vague and conclusory objections amount

to a complete failure to object as they are not sufficient to pinpoint those portions of the

R&R that are legitimately in contention. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir.1986)

(per curiam). “The objections must be clear enough to enable the district court to discern

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those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th

Cir. 1995). "‘[O]bjections disput[ing] the correctness of the magistrate's recommendation

but fail[ing] to specify the findings ... believed [to be] in error' are too general.” Spencer,

449 F.3d at 725 (quoting Miller, 50 F.3d at 380).

B. Habeas Corpus

28 U.S.C. § 2254(d) imposes the following standard of review for habeas cases: 

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect

to any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding.

A state court decision is “contrary to” clearly established federal law if the state court

arrives at a conclusion opposite of that reached by the Supreme Court on a question of law,

or if the state court reaches a substantially different conclusion than the Court based upon

a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

An “unreasonable application” of clearly established federal law occurs “if the state

court identifies the correct governing legal principle from [the Supreme Court’s] decisions

but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413. A

federal habeas court may not, however, find a state adjudication to be unreasonable

“simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly.” Id. at

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411. Rather, a habeas petitioner must demonstrate that the state court’s application of

clearly established federal law to the facts of his case was objectively unreasonable. Price

v. Vincent, 538 U.S. 634, 641 (2003). 

III. ANALYSIS

Petitioner filed a thirty-four page document titled “My Objections to the Finding of the

Recommendation.” (Doc. 1). Having carefully reviewed the arguments therein, the Court

concludes that they are not proper “objections” under 28 U.S.C. § 636. Petitioner explains

he is “respectfully objecting to the reasoning that was expressed by the prosecution stating

that I should be denied a petition for an application for a writ of habeas corpus.” (Id. at 1).

The objections read as a second reply to Respondent’s response and not as specific

objections to the Magistrate Judge’s resolution of the numerous issues presented in the

petition. For example, Petitioner argues that the Court should consider the merits of his

habeas claims regardless of any procedural default alleged by Respondent. (Id. at 3-4).

The Magistrate Judge agreed with this contention, stating, “[g]iven that the cause and

prejudice inquiry merges with an analysis of the merits of petitioner's defaulted claims, it

is better to simply consider the merits of these claims, even if they are defaulted.” (Doc. 15

at 9). It is unclear to the Court why Petitioner's argument has been reasserted in the

objections. 

To the extent the Court can construe Petitioner’s arguments as “objections” to the

Magistrate Judge’s findings, the “objections” are not sufficiently specific to merit

consideration. An objection is sufficiently specific when it explains and cites the portions

of the R&R the objecting party finds problematic. Robert v. Tesson, 507 F.3d 981, 994 (6th

Cir. 2007) (citation omitted). Here, Petitioner has simply filled a general disagreement with

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nearly every section of the R & R, for the reasons previously articulated in his petition. The

Court discovered a general pattern throughout each objection on a specific issue: Petitioner

indicates his position, presents relevant law (by quoting large portions of the R&R), but

does not specifically dispute the Magistrate Judge's analysis and contrary conclusions.

The Court treats Petitioner’s non-specific opposition to the Magistrate Judge’s resolution

of the issues as general objections. 

The purpose behind the Magistrate Judge's R&R is judicial economy. Thomas v.

Arn, 474 U.S. 140, 147 (1985). This purpose is not served when a party files general

objections:

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.

Zimmerman v. Cason, 354 Fed.Appx. 228, 230 (6th Cir. 2009) (quoting Howard v. Secretary

of Health and Human Serv., 932 F.2d 505, 509 (6th Cir. 1991)); see also, Curry v. City of

Mansfield, Ohio / Wastewater Treatment Plant, 201 F.3d 440 (Table) (6th Cir. 1999) (faced

with non-specific objections, “[t]he district court's sua sponte de novo review duplicated the

work of the Magistrate, contravening the purposes of the Magistrate's Act....”). Petitioner’s

“objections” ignore the Magistrate Judge’s well-reasoned disposition of the issues and do

not clearly identify any legal analyses which were in error. Instead, he attempts to relitigate

virtually every issue in the R&R by furthering a general disagreement to each of the

Magistrate Judge’s conclusions. Accordingly, the “objections” are overruled as improper.

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Nevertheless, given Petitioner’s pro se status, the Court has exhaustively reviewed

each “objection” raised and attempted to discern the basis of Petitioner's argument. Each

objection, even liberally construed as proper, is nonetheless without merit and overruled.

Furthermore, to the extent the Court has identified specific objections, the Court “is not

required to articulate all of the reasons it rejects a party's objections.” Thomas v. Halter,

131 F.Supp.2d 942, 944 (E.D.Mich.2001); see also, Tuggle v. Seabold, 806 F.2d 87, 92

(6th Cir.1986).

A. Batson Claims (Claims I, VI, and VII)

In Claims I and VI, Petitioner contends that the trial court violated his due process

rights when it improperly precluded him from exercising a peremptory challenge. (Doc. 21

4-7). The Magistrate Judge disposed of these claims under Rivera v. Illinois, 129 S.Ct.

1446 (2009). In Rivera, as here, the defendant challenged the state trial court’s denial of

his exercise of a peremptory challenge based on the trial court’s finding that the peremptory

challenge was exercised on the basis of the juror’s race, in violation of Batson v. Kentucky,

476 U.S. 79 (1986) (holding that the Equal Protection Clause prohibits race-based

peremptory challenges). The Supreme Court concluded that so long as the jury actually

seated was fair and impartial, the erroneous application of Batson to deny a defendant’s

exercise of a peremptory challenge does not raise a constitutional claim. Rivera, 129 S.Ct.

at 1453-54. The Magistrate Judge concluded that, regardless of whether the trial court

applied Batson properly, Petitioner did not raise the specter of a due process violation

because he failed to show that Hill (the juror who escaped Petitioner’s peremptory

challenge) was actually biased or that the trial judge deliberately misapplied the law or

acted in an arbitrary or irrational manner. (Doc. 15 at 14-15). 

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 In evaluating Batson claims, a court must follow a three-step process:

First, the [the objecting party] must make a prima facie showing that the

prosecutor has exercised peremptory challenges on the basis of race.

Second, if the requisite showing has been made, the burden shifts to the

[opposing party] to articulate a race neutral explanation for striking the

jurors in question. Finally, the trial court must determine whether the

[objecting party] has carried his burden of proving purposeful

discrimination.

Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (plurality opinion) (citations

omitted) (citing Batson, 476 U.S. at 96-98); see also, Snyder v. Louisiana, 552 U.S. 472,

476-77 (2008).

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Petitioner does not object to the Magistrate Judge’s application of Rivera. The

objections do not even mention that case. Moreover, the Court cannot reasonably construe

the arguments advanced as an attack on the Magistrate Judge’s interpretation and

application of Rivera. The Court agrees with the Magistrate Judge’s discussion of Rivera

and adopts the recommendation that Petitioner is not entitled to habeas relief on Claims

I and VI. 

In Claim VII, Petitioner argues that the trial court violated his due process rights

when it allowed the prosecutor to commit Batson error and exercise a peremptory

challenge based on race. (Doc. 21 at 7-10). During the first day of jury selection,

Petitioner’s counsel objected to the prosecution’s exercise of its peremptory challenges by

noting that eight of the twelve challenges targeted black jurors. (Doc. 8-7 Trial Transcript

II at 4-5). The trial court overruled the objection, finding no pattern of discrimination as both

sides excused some white and some black jurors. Id. The Magistrate Judge properly

noted that the trial court’s fact-finding on discriminatory intent (alternatively “step-one” of

the Batson analysis2) is entitled to a presumption of correctness, absent clear and

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convincing evidence to the contrary. (Doc. 15 at 15-16). The Magistrate Judge concluded

that Petitioner’s strongest argument on this issue, the “eight-out-of-twelve” statistic, was

insufficient to upset the trial court’s step-one determination. Id. 

Petitioner's “objection” consists of little more than a restatement of two arguments

already advanced: the “eight out of twelve” statistic and the racial identities of Petitioner

(black) and the murder victim (white) show that the prosecution based its challenges solely

on race. Petitioner failed to specify any error in the Magistrate Judge's resolution of those

arguments. Notably, Petitioner does not disagree with the presumption of correctness

afforded to the trial court’s fact-finding regarding discriminatory intent. See, Rice v. Collins,

546 U.S. 333, 338-39 (2006); Miller-El v. Dretke, 545 U.S. 231, 240 (2005). The Magistrate

Judge correctly concluded that Petitioner’s had not presented any clear and convincing

evidence to rebut the trial court’s factual finding on discriminatory intent at step-one on the

Batson analysis. Petitioner is not entitled to habeas relief on Claim VII. 

B. Extraneous Jury Influence (Claim VIII)

Petitioner claims the trial court violated his due process rights when it failed to

question jurors about whether they had seen a particular newspaper article which reported

that the trial judge in his case, outside the presence of the jury, jailed a defense witness for

perjury. (Doc. 21 at 10-13). The Magistrate Judge rejected Petitioner’s claim because the

trial court repeatedly instructed the jurors that they should decide the case only the

evidence presented in court, Petitioner presented no evidence that any juror read the

article, and even if they did, the article merely revealed facts the jury had witnessed

firsthand in the courtroom (witness committed perjury when her trial testimony

unambiguously conflicted with her prior sworn statements). (Doc.15 at 24).

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Petitioner begins his objection by quoting heavily from the R&R’s discussion of the

applicable law and expressly agrees that in order to be entitled to habeas relief on this

claim, he must show both that the jury was exposed to that newspaper article and that the

article was prejudicial. The remainder of the objection, however, simply ignores the

Magistrate Judge’s discussion of how Petitioner failed to make the required showings. For

example, Petitioner claims that the trial judge never instructed the jury to avoid media

reports regarding the case. (Doc. 21 at 12). The record clearly undermines this contention.

The Magistrate Judge chronicled the trial judge’s numerous instructions to the jury that it

should not follow news reports and should base its verdict solely on the evidence presented

in the courtroom. (Doc. 15 at 22-24). Furthermore, even assuming the jurors read the

article, Petitioner cannot establish prejudice. Petitioner argues the article prejudiced the

defense because it shows that the trial court thought a defense witness was not credible.

The Magistrate Judge already reviewed and rejected that argument. (Id. at 22). The

judge’s comments were nothing more than an observation that the witness committed

perjury because two testimonies were directly contradictory. The judge did not state which

testimony he thought was the “truth.” Petitioner’s objections do not sufficiently address the

R&R’s analysis of the prejudice issue. Accordingly, the Court adopts the Magistrate

Judge’s conclusion and finds that Petitioner is not entitled to habeas relief on this claim.

C. Ineffective Assistance of Counsel (Claims IX & X)

In Claim IX, Petitioner contends that his trial counsel was ineffective for failing to: (1)

object to the introduction of Lt. McCallister’s preliminary examination testimony; (2) object

to the testimony of the victim’s mother and the introduction of photographs; (3) investigate

and call key witnesses; (4) produce character evidence to impeach Officer Thomas; and

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(5) object to prosecutorial misconduct. (Doc. 21 at 14-28). Petitioner also argues the

cumulative effect of the counsel’s deficient performance denied him a fair trial. To establish

ineffective assistance of counsel, a petitioner must show that counsel’s performance was

deficient and that the deficient performance prejudiced the defense so as to render the trial

unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687 (1984);

Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir. 2004). The R&R concluded that Petitioner

is not entitled to habeas relief on these claims. (Doc. 15 at 40-48). The Court agrees.

Consistent with the general pattern, Petitioner makes no effort to set forth a discrete

objection to the Magistrate Judge's treatment of his ineffective assistance of counsel

claims. The Magistrate Judge soundly rejected Petitioner's contention that his trial counsel

was ineffective. The objections simply ignore the Magistrate Judge’s thorough discussion

of counsel’s performance with respect to each of the five grounds Petitioner raises.

Moreover, Petitioner entirely overlooks the R&R’s findings on prejudice. On each of the five

grounds, the Magistrate Judge found that Petitioner had failed to establish “a reasonable

probability” that but for his counsel's deficient performance, “the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. Petitioner does not set forth any

reasoned argument how the Magistrate Judge may have erred in this conclusion.

Consequently, for the reasons fully articulated by the Magistrate Judge, Petitioner's

ineffective assistance of trial counsel claims are not sustainable. Furthermore, though not

specifically addressed in the R&R, Petitioner’s “cumulative effect” claim fails because he

has not established that trial counsel committed a single constitutional error. Campbell v.

United States, 364 F.3d 727, 736 (6th Cir. 2004) (counsel is not ineffective based upon the

cumulative effect of non-errors). 

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In Claim X, Petitioner argues that his appellate counsel was ineffective for failing to

raise his motion for relief from judgment claims on direct appeal. (Doc. 21 at 28-32). To

succeed on a claim of ineffective assistance of appellate counsel, a Petitioner must show

that the claims appellate counsel failed to raise would have succeeded on appeal. Smith

v. Robbins, 528 U.S. 259, 285-86 (2000) (citing Strickland, 466 U.S. at 694); McCleese v.

United States, 75 F.3d 1174, 1180 (7th Cir.1996). Because Petitioner cannot carry his

burden with respect to the post-conviction motion claims, see supra, he cannot show that

he was prejudiced by appellate counsel's performance.

D. Claims II, III, IV, & V

The Court finds no objections to the R&R’s conclusion that Petitioner is not entitled

to habeas relief on Claims II, III, IV & V. Accordingly, Petitioner has waived his right to de

novo review of these claims. The Court accepts the Magistrate Judge's recommendation

to deny habeas relief on Claims II, III, IV & V.

E. Certificate of Appealability 

Petitioner furthers only a general objection to the Magistrate Judge's

recommendation concerning his certificate of appealability. (Doc. 21 at 33). Petitioner's

general objection does not meet the applicable standard. See, Spencer, 449 F.3d at 725;

Miller, 50 F.3d at 380. Having carefully considered the petition, the answer, the R&R, and

Petitioner's objections, the Court concludes that no reasonable jurist would disagree with

the Magistrate Judge's initial recommendations, or with this Court's conclusion to deny

relief on all claims. The Court adopts the Magistrate Judge's recommendation on this issue

as well.

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IV. CONCLUSION

For the reasons stated above, the Court OVERRULES Petitioner’s objections (Doc.

21), ADOPTS the Report & Recommendation in its entirety (Doc. 15), DENIES the Petition

for the Writ of Habeas Corpus (Doc. 1). 

Because this decision is adverse to Petitioner, the Court is obliged under Rule 11

of the Rules Governing Section 2254 Proceedings to “issue or deny a certificate of

appealability.” Federal Rule of Appellate Procedure 22 provides that an appeal may not

proceed unless a certificate of appealability (“COA”) is issued under 28 U.S.C. § 2253. A

COA may be issued “only if the applicant has made a substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner must show “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation

omitted). 

For the reasons stated in the R&R, the Court concludes that reasonable jurists would

not debate its conclusion that the petition does not present any claims upon which habeas

relief may be granted. Therefore, the Court DENIES Petitioner a certificate of appealability.

IT IS SO ORDERED.

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATED: March 23, 2011

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CERTIFICATE OF SERVICE

Copies of this Order were served upon Petitioner and counsel of record on this date

by ordinary mail and electronic filing.

 s/Bernadette M. Thebolt

 DEPUTY CLERK

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