Hassan Rizk v. John Prelesnik


OPINION filed : The district court's opinion is AFFIRMED, decision not for publication pursuant to local rule 206. Martha Craig Daughtrey, Circuit Judge; Raymond M. Kethledge and Bernice Bouie Donald, Circuit Judges.

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Case: 10-1262 Document: 006111482078 Filed: 10/30/2012 Page: 1 FILED Oct 30, 2012 DEBORAH S. HUNT, Clerk NOT RECOMMENDED FOR PUBLICATION File Name: 12a1118n.06 No. 10-1262 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT HASSAN RIZK, Petitioner-Appellant, v. JOHN PRELESNIK, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN OPINION Before: DAUGHTREY, KETHLEDGE, and DONALD, Circuit Judges. BERNICE BOUIE DONALD, Circuit Judge. Hassan Rizk filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging numerous constitutional violations arising from his conviction for the murder of Sharon Rouse. The district court denied his petition for lack of discernible constitutional error and also denied his motion for a certificate of appealability (COA). We issued a COA to review the district court’s decision regarding Rizk’s Fifth Amendment claim, which arose from his pre-arrest silence. A review of the record, the parties’ briefs, and the applicable law reveals that a panel opinion further addressing the issue would serve no jurisprudential purpose. In granting the COA, we recognized that the admissibility of pre-arrest, pre-Miranda silence was an “unsettled” matter among the federal courts. This case, however, is an ill-suited vehicle for revisiting that question, in light Case: 10-1262 Document: 006111482078 Filed: 10/30/2012 Page: 2 No. 10-1262 Rizk v. Prelesnik of AEDPA’s jurisdictional constraints. Accordingly, we AFFIRM for the reasons stated in the district court’s opinion. -2-

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