Gross v. Johnson

Background

The court considered Marcus Gross’s objection to a report and recommendation by United States Magistrate Judge Paul E. Davison. The recommendation advised denying Gross’s application for a writ of habeas corpus under 28 U.S.C. § 2254. The district court explained that it would review specific objections independently and would review unchallenged portions for clear error.

Objection and analysis

Gross did not object to the magistrate judge’s treatment of the prosecutor’s references to him as a “puppet master,” “supreme manipulator,” and “con man.” Instead, he argued that the magistrate judge had not addressed the prosecutor’s references to “rape,” “force,” and “medical science.”

The court held that the latter remarks were not properly before it because Gross’s petition did not mention them and he raised them only in his reply. The court further stated that any claims concerning those remarks were unexhausted: Gross’s counsel had not objected at trial, and Gross had not raised the claims on appeal or in state-court collateral proceedings. If the claims were treated as exhausted, the court said, they would be procedurally defaulted, meaning that a state procedural failure would generally bar federal review.

The court alternatively addressed the substance of the remarks. It concluded that, in context, they were fair comments on the evidence or fair responses to Gross’s arguments, including attacks on the victim’s credibility. The court also found no possibility that the trial judge’s instructions left the jury confused about the crimes charged.

Ruling

Judge Seibel concluded that Gross’s objections lacked merit and found no clear error in the portions of the recommendation to which Gross had not objected. The court adopted the report and recommendation as its decision and dismissed the petition. Because Gross had not made a substantial showing that a constitutional right was denied, the court did not issue a certificate of appealability. The clerk was directed to close the case.