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Case 1:10-cv-00629-GJQ-HWB Doc #48 Filed 09/19/13 Page 1 of 3 Page ID#744

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

__________________________

WILLIAM G. SUTHERLAND,

Petitioner,

v.

RAYMOND BOOKER,

Respondent.

_________________________/

Case No. 1:10-CV-629

HON. GORDON J. QUIST

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION

Petitioner, William J. Sutherland, has filed Objections to Magistrate Judge Hugh

Brenneman’s Report and Recommendation (R&R) issued August 21, 2013, recommending that this

Court deny Petitioner’s habeas petition.

Petitioner raised the following claims in his petition: (1) Petitioner was denied due process

based on prosecutorial misconduct; (2) Petitioner was denied due process when a witness lied on

the stand; (3) Petitioner was denied the effective assistance of trial counsel; and (4) Petitioner was

denied the effective assistance of appellate counsel. The magistrate judge found that the first three

claims were procedurally defaulted and thus not subject to habeas review. He determined that the

final claim should be denied because Petitioner failed to overcome the presumption that counsel

rendered adequate assistance. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Petitioner objects to the R&R on the ground that the description of the evidence presented

at trial was inaccurate. Petitioner further states that the R&R contains two additional errors, but that

Case 1:10-cv-00629-GJQ-HWB Doc #48 Filed 09/19/13 Page 2 of 3 Page ID#745

he is unable to address these errors due to health problems. He requests that the Court stay the

proceedings or appoint counsel.

Pursuant to 28 U.S.C. § 636(b)(1), this Court is required to review de novo those portions

of the R&R to which specific objections have been made. The Court may accept, reject, or modify

any or all of the magistrate judge’s findings or recommendations. Id. After conducting a de novo

review of the R&R, and having considered Petitioner’s Objections and his petition, the Court

concludes that the R&R should be adopted.

Petitioner’s objection, which is based on a description of the evidence introduced at trial,

fails to address the rationale for the magistrate’s recommendation. The evidence discussed is

irrelevant to the determination that Petitioner’s first three claims are procedurally barred. Moreover,

it has no bearing on whether appellate counsel rendered adequate assistance.

Finally, the Court rejects Petitioner’s request that the Court stay the proceedings or appoint

counsel to enable Petitioner to file additional objections. Petitioner has filed an extensive petition

and numerous exhibits. There is nothing in these documents to suggest that Petitioner has a

meritorious argument to refute the magistrate’s conclusions. Thus, appointment of counsel would

not be appropriate. See Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993) (noting that

appointment of counsel is justified only by “exceptional circumstances,” and is not appropriate when

a pro se litigant’s chances of success are extremely slim). Moreover, a stay would unnecessarily

prolong these proceedings.

Under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of

appealability should be granted. A certificate should issue if Petitioner has demonstrated a

“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth

Circuit has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio,

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263 F.3d 466, 467 (6th Cir. 2001). Rather, the district court must “engage in a reasoned assessment

of each claim” to determine whether a certificate is warranted. Id. at 467. Each issue must be

considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473,

120 S. Ct. 1595 (2000). Murphy, 263 F.3d at 467. Therefore, the Court has considered Petitioner’s

claims, including his objections, under the Slack standard.

Under Slack, 529 U.S. at 484, 120 S. Ct. at 1604, to warrant a grant of the certificate, “[t]he

petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” For the reasons stated above, the Court finds that

reasonable jurists could not find that this Court’s denial of Petitioner’s claims was debatable or

wrong. Thus, the Court will deny Petitioner a certificate of appealability. Therefore,

IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation

issued August 21, 2013 (dkt. no. 42) is APPROVED AND ADOPTED as the Opinion of this Court,

and Petitioner’s Objection (dkt. no. 46) is OVERRULED.

IT IS FURTHER ORDERED that Petitioner’s habeas corpus petition is DENIED.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED by this Court.

A separate judgment will issue.

/s/ Gordon J. Quist

GORDON J. QUIST

UNITED STATES DISTRICT JUDGE

Dated: September 19, 2013

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