Summary
holding that a claim that the verdict was against the weight of the evidence "presents a state law issue which is not cognizable on habeas review"
Summary of this case from Stewart v. JonesOpinion
Civil Case No. 03-40211.
December 6, 2004
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 Wright, Miller 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) (" We do encourage petitioners as a matter of prudence to move for a COA at their earliest opportunity so that they can exercise their right to explain their argument for issuance of a COA. " (emphasis added)). 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.