United States District Court, E.D. Kentucky, Central Division, at Lexington
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
In 1988, Michael Dean Fugate, Jr., was convicted of murder and abuse of a corpse in the Powell Circuit Court. He is currently confined at the Kentucky State Reformatory in Lagrange, Kentucky, where he is serving a life imprisonment for the murder conviction and twelve months, served concurrently, for abusing a corpse. [Record No. 16-15, p. 1] After unsuccessfully appealing in the state courts, Fugate now petitions this Court for collateral relief under 28 U.S.C. § 2254. [Record No. 1] However, for the reasons discussed below, Fugate's petition will be denied. A Certificate of Appealability will not be issued with respect to any issue raised in this action.
On March 12, 2014, Fugate filed the current petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging nine grounds for relief. First, he alleges that his due process rights were violated by the admission of a tape recorded conversation during trial. Next, he contends that he was denied a fair trial and his case was substantially prejudiced when the jury was provided a transcript of a recorded conversation during deliberations. Additionally, Fugate argues that his constitutional rights were violated due to the following alleged errors by the prosecutor: witness intimidation of Joe Wilder; suggestions to the jury to impose a life sentence during opening and closing arguments; inflaming the passions of the jury; misleading, misstating facts, improperly vouching for evidence, and intimidating the jury throughout the trial proceedings; and failure to release Brady evidence before trial. Fugate also asserts that he was provided ineffective assistance of counsel based upon his attorney's failure to call witnesses, find and call David Crum, object to discovery violations, object to hearsay, preserve evidence, and file a timely appeal. Finally, Fugate asserts, inter alia, that he was denied an evidentiary hearing.
Consistent with local practice, Fugate's petition was presented to a United States Magistrate Judge for initial review and issuance of a Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B). On March 16, 2015, United States Magistrate Judge Edward B. Atkins issued his report. [Record No. 19] Based on review of the record and the applicable law governing the motion, he recommended that Fugate's motion be denied. Fugate filed objections to the Magistrate Judge's Report and Recommendation on April 6, 2015. [Record No. 20]
While this Court reviews de novo those portions of the magistrate judge's recommendations to which an objection is made, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985). Moreover, a party who fails to file objections to a magistrate judge's proposed findings of fact and recommendation waives the right to appeal. See United States v. Branch, 537 F.3d 582, 587 (6th Cir. 2008). Further, a general objection to the entirety of a magistrate judge's report has the same effect as a failure to object. Howard v. Sec'y of Health & Human Servs., 932 F.2d 509 (6th Cir. 1991).
Having reviewed de novo the portions of the Magistrate Judge's Report to which objections have been made, the Court concludes that Fugate's objections are without merit. The Court will adopt the Magistrate Judge's recommendations, as modified below. Fugate's petition will be denied.
According to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Fugate's writ of habeas corpus may be granted only if the state-court decision "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). Under the "contrary to" test, "a state court's decision is contrary to clearly established Federal law if it (1) arrives at a legal holding that contradicts a Supreme Court case, or (2) involves facts that are materially indistinguishable from a Supreme Court case but nonetheless arrives at a substantially different result." Jones v. Jamrog, 414 F.3d 585, 591 (6th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). An unreasonable application of clearly established federal law occurs "when a state-court decision unreasonably applies the law of [the Supreme] Court to the facts of a prisoner's case." Id. In determining whether a case involves an unreasonable application of federal law, the question is whether the state court decision was "objectively unreasonable" and not simply erroneous or incorrect. Williams, 529 U.S. at 409-11.
Fugate objects to the Magistrate Judge's Report and Recommendation. Although he purports to challenge the recommendation regarding each of his nine claims, his objections are limited to asserting that: (1) he was not provided the right to a proper appeal because his trial transcript was destroyed; (2) the Kentucky state courts could not have effectively reviewed his claims without the trial transcript; and (3) the Magistrate Judge erred in reviewing his claims of ineffective assistance of counsel regarding his attorney's failure to call and find witnesses, preserve evidence, and file a timely appeal. [Record No. 20]
A. Trial Transcript
Fugate did not initially appeal his 1988 conviction, but instead later moved for a belated appeal which was granted on August 28, 1995. [Record No. 16-14, p. 1] However, by that time, the trial transcript and other exhibits had been destroyed because the five year period for storing the materials had expired in February 1993 and the reporters had not received notice that the case would be appealed. [ Id., pp. 1-2] As a result, Fugate's trial transcript was not available for appeal.
Fugate's first two objections appear to assert that he was denied due process as a result of the destruction of his trial transcript. In support, he cites Hardy v. United States, 375 U.S. 277 (1964). However, to the extent that he actually asserts these arguments, they are waived. Fugate's petition for habeas review does not include any such claims and, as a result, they were not presented to the Magistrate Judge. Under precedent from this circuit, arguments that are not presented to the magistrate are waived. See Glidden Co. v. Kinsella, 386 F.Appx. 535, 544 n.2 (6th Cir. 2010); Murr v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000); Greer v. Harry, No. 1: 09-cv-34, 2012 WL 32476, at *2 (W.D. Mich. Jan. 5, 2012). Therefore, these issues are not properly brought before the Court, and Fugate's objections are denied.
The Magistrate Judge mentioned the destruction of the trial transcript in determining that the surviving state record, along with the two hearings conducted in 1994 following Fugate's trial, were sufficient for meaningful review. [Record No. 19, p. 14 n.2] He relied upon Clark v. Waller, 490 F.3d 551, (6th Cir. 2007), which determined that when reviewing a state record, "the district court need not examine the trial records if two conditions are satisfied: (1) the state court opinions summarize the trial testimony or relevant facts; and (2) the petitioner does not quarrel with that summary and instead contends only that the trier of fact should have reached a different ...