Maddox v. McKee

Filing 67

Opinion and ORDER declining to grant 66 MOTION for Relief and Denying 65 Application to Proceed In Forma Pauperis filed by Keith Maddox. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DIVISION OF MICHIGAN
NORTHERN DIVISION
KEITH MADDOX-EL,
Petitioner,
v.

Case No. 07-11349
Honorable Thomas L. Ludington

KENNETH MCKEE,
Respondent.
__________________________/
OPINION AND ORDER REGARDING PETITIONER’S MOTION FOR RELIEF, AND
DENYING PETITIONER’S APPLICATION TO PROCEED IN FORMA PAUPERIS
AND FOR APPOINTMENT OF COUNSEL
Petitioner Keith Maddox-El is presently incarcerated by the Michigan Department of
Corrections at the Carson City Correctional Facility in Carson City, Michigan. He filed a pro se
habeas petition pursuant to 28 U.S.C. § 2254 challenging his 2004 Wayne County jury
convictions for felon in possession of a firearm, possession of marijuana with intent to deliver,
possession of cocaine less than twenty-five grams, and felony firearm. Petitioner was sentenced
as a habitual offender to concurrent prison terms of three to fifteen years for the felon-inpossession conviction, and one year to fifteen years each for the marijuana and the cocaine
convictions.

Because of Petitioner’s habitual offender status, he was also sentenced to a

consecutive prison term of ten years for the felony-firearm conviction.
In his pro se pleadings, Petitioner suggested seventeen reasons why his convictions and
sentences are unconstitutional. On March 26, 2012, the Court issued an Opinion & Order
denying Petitioner’s petition for a writ of habeas corpus, declining to issue a certificate of
appealability, and denying Petitioner’s application to proceed in forma pauperis on appeal.

Not to be deterred, Petitioner filed a timely notice of appeal on April 10, 2012. While the
appeal remains pending, Petitioner has recently filed two additional motions in this Court: an
application to proceed in forma pauperis on appeal, and a motion for relief from judgment
pursuant to Federal Rule of Civil Procedure 60. Specifically, Petitioner alleges two reasons he
should be relieved of the Opinion & Order denying his petition for a writ of habeas corpus. First,
Petitioner claims he was forced to keep an attorney that he hired with his own funds and then
wished to dismiss. He claims the issue was ignored because “the Court’s record’s [sic] were
altered with false information to make it appear as though counsel was originally appointed prior
to August 10, 2004.” Pet’r’s Mot. 7, ECF No. 66. Petitioner argues counsel was not originally
appointed, but retained, and that his wish to dismiss the attorney should have been honored.
Next, Petitioner claims that the government withheld exculpatory evidence in violation of
its obligations under Brady v. Maryland, 373 U.S. 83 (1963). Petitioner contends he “has proven
that the state acted in bad faith and manufactured evidence illegally as well as withheld the
investigator and laboratory reports of May 10, 2004.” Pet’r’s Mot. 13–14.
The Court notes that both Petitioner’s motion for relief and his application to proceed in
forma pauperis on appeal have previously been addressed on the merits, both by this Court and
others. Upon review, Petitioner’s convictions and sentences remain constitutionally sound, and
the Court will not grant the relief he seeks.
I
This case arises because of an incident that occurred on May 10, 2004, when police
officers executed a search warrant at Petitioner’s home located at 19992 Irvington in Detroit,

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Michigan. The police obtained the warrant after an undercover drug transaction was effected at
the home and after surveillance on the home revealed suspicious activity.
The officers found Petitioner and a woman in an upstairs bedroom. Petitioner told the
officers that he lived in the house and gave his address as 19992 Irvington. As the officers
apprehended Petitioner, he said, “all I have is that weed in that computer cabinet.” Trial Tr. vol.
3, 37, Aug. 18, 2004. When Officer Michael Carson opened the computer cabinet, he found one
clear plastic sandwich bag containing loose marijuana, two zip-lock bags of marijuana, and one
clear zip-lock bag containing twenty-three one inch by one inch bags of marijuana. The total
amount of marijuana found in the cabinet was 40.75 grams.
In addition to the marijuana, police also found a Blue Sky .30 caliber rifle in a plastic
case in the living room behind a couch, although no ammunition was found. Under the bed, the
officers discovered a plate with .60 grams of crack cocaine. Numerous empty zip-lock bags
were found in the living room, as well as a bulletproof vest with the word “Rambo” written on it
and seventy-five dollars in cash.
At trial, Joyce Rivers testified for the defense. She stated that she used to live next door
to Petitioner on Irvington and had asked him if she could store some of her belongings at his
house after she was evicted. Rivers stated that she moved her living room furniture, her clothing,
a refrigerator, and a .22 caliber rifle in a brown leather case into Petitioner’s living room. She
testified that she did not tell Petitioner that she had left the gun at his residence.
Despite this testimony, the jury convicted Petitioner. Following his sentencing, Petitioner
filed a direct appeal with the Michigan Court of Appeals, raising the following four claims: (1)
the trial court erred in not allowing withdrawal and substitution of his trial counsel; (2) trial

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counsel was ineffective for allowing admission of his prior narcotics conviction; (3) the evidence
offered at trial was insufficient to show that he possessed a firearm; and (4) he was sentenced
based on facts that were not found by a jury beyond a reasonable doubt.
Petitioner also filed a supplemental brief with the Court of Appeals in which he raised the
following five additional claims:
I.

[Petitioner] was denied effective assistance of counsel due to counsel’s
failure to file discovery, failure to argue and obtain a ruling of
[Petitioner’s] motion to suppress [the] search warrant and failure to
produce alibi witnesses on the relevant record in violation of the Sixth
Amendment and Article I, Section 17, 20 of the Michigan Constitution.

II.

[Petitioner] was denied his constitutional right to present a defense when
the trial court denied his request for a continuance in order to secure the
presence of alibi defense witnesses in violation of the Fourth, Fifth, and
Fourteenth Amendments and Article I, Section 17, 20 of the Michigan
Constitution.

III.

The prosecutor’s failure to timely comply with discovery due to lack of
jurisdiction and the fact that no probable cause existed for [the] search
warrant denied [Petitioner] his constitutional rights to a fair trial and due
process of law in violation of the Fifth, Sixth, and Fourteenth
Amendments and Article I, Section 17 of the Michigan Constitution.

IV.

[Petitioner] was denied effective assistance of counsel because counsel
failed to argue and obtain a ruling on [his] motion to dismiss [the] search
warrant due to no relevant record of not having constructive possession or
possession of a firearm.

V.

[Petitioner] was denied effective assistance of counsel because counsel
failed to argue and obtain a ruling on [his] motion to suppress [the] search
warrant in violation of the Fourth and Fourteenth Amendments and Article
I, Section 2 of the Michigan Constitution.

On May 23, 2006, the Court of Appeals affirmed Petitioner’s convictions and sentences.
People v. Maddox, No. 257981, 2006 WL 1412794 (Mich. Ct. App. May 23, 2006). Petitioner
then filed an application for leave to appeal the Court Appeals’ decision with the Michigan

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Supreme Court, raising what appears to be the same nine claims. The Supreme Court denied his
application on September 26, 2006. People v. Maddox-El,1 721 N.W.2d 196 (Mich. 2006). On
February 27, 2007, the Michigan Supreme Court denied his motion for reconsideration. People
v. Maddox-El, 727 N.W.2d 601 (Mich. 2007).
While the appeal was pending, Petitioner filed a motion for the production of transcripts
of an audiotape with the state trial court, which was denied on August 29, 2005. People v.
Maddox, Nos. 04-5427, 04-8419 (Wayne Cnty. Cir. Ct. Aug. 29, 2005). He subsequently filed a
motion for reconsideration, along with a motion for remand and for an evidentiary hearing to
suppress the search warrant and affidavit, with the Michigan Court of Appeals. On November 3,
2005, the Court of Appeals denied both motions. People v. Maddox, No. 257981 (Mich. Ct.
App. Nov. 3, 2005). On January 30, 2006, the Michigan Supreme Court denied Petitioner’s
application for leave to appeal. People v. Maddox, 708 N.W.2d 415 (Mich. 2006).
In that same month, Petitioner filed a civil action against Wayne County Circuit Court
Judge Diane M. Hathaway with the Court of Appeals. On January 4, 2006, the Court of Appeals
returned the pleadings to Petitioner because “MCL 600.2963 mandates that a prisoner pursuing a
civil action be liable for the filing fees.” Maddox v. Wayne Cir. Judge, No. 266853 (Mich. Ct.
App. Jan. 4, 2006). Because Petitioner did not pay the required fees the action progressed no
further.
Petitioner also filed a motion, dated June 6, 2006, with the Wayne County Circuit Court
requesting a new trial, an evidentiary hearing, oral arguments, and dismissal of all charges as
well as an additional request to reconsider his motion for the production of the transcripts of the
audiotape. On November 13, 2006, the Wayne County Circuit Court issued an opinion and order
1

On some opinions and order, Petitioner also is known as Keith Maddox-El, as he is in this opinion.

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denying in part and granting in part Petitioner’s June 6, 2006 post-conviction motion. People v.
Maddox, No. 04-005427 (Wayne Cnty. Cir. Ct. Nov. 13, 2006). In January 2007, Petitioner filed
another motion with the circuit court, this time to correct alleged clerical errors.
In the meantime, in March 2007, Petitioner filed a habeas petition with this Court, raising
the same nine claims he raised in the state appellate courts.
On April 27, 2007, the Wayne County Circuit Court issued an opinion and order denying
Petitioner’s January 2007 motion to correct clerical errors. People v. Maddox, No. 04-005427
(Wayne Cnty. Cir. Ct. Apr. 27, 2007). In May 2007, Petitioner filed a motion for an order to
show cause why Judge Diane M. Hathaway should not be held in contempt for “failure to
prepare and file an answer in this case,” with the circuit court. In that same month, Petitioner
filed, with the Michigan Court of Appeals, a “Brief on Appeal to Appeal Motion to Correct
Clerical Mistakes,” in which he appeared to be challenging the circuit court’s April 27, 2007
order. In August 2007, Petitioner filed a motion to stay his habeas proceedings with this Court
so that he could return to the state courts to fully exhaust his state-court remedies.
In an order and opinion dated September 26, 2007, the Wayne County Circuit Court
denied Petitioner’s May 2007 motion for order to show cause. People v. Maddox-El, No. 04005427 (Wayne Cnty. Cir. Ct. Sept. 26, 2007). Petitioner then filed for a writ of mandamus in
the circuit court. In an order dated November 12, 2007, the Wayne County Circuit Court denied
Petitioner’s request for a writ of mandamus. People v. Maddox, No. 04-005427 (Wayne Cnty.
Cir. Ct. Nov. 12, 2007).

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On December 11, 2007, this Court granted Petitioner’s motion to stay the proceedings so
that he could fully exhaust his state-court remedies, and the case was administratively closed by
the Clerk of the Court.
On December 14, 2007, the Michigan Court of Appeals denied Petitioner’s delayed
application for leave to appeal. People v. Maddox, No. 278045 (Mich. Ct. App. Dec. 14, 2007).
Petitioner then filed an application for leave to appeal the Court of Appeals’s order with the
Michigan Supreme Court.
Petitioner subsequently filed a delayed application for leave to appeal the circuit court’s
September 26, 2007 and November 12, 2007 orders with the Court of Appeals. On January 17,
2008, the Court of Appeals issued an order denying Petitioner’s application for leave to appeal
“from the September 26, 2007 order denying [Petitioner’s] motion for order to show cause and
the November 12, 2007 order denying [Petitioner’s] complaint for a writ of mandamus” because
the Court of Appeals lacked jurisdiction, “since the orders in question actually denied successive
motions for relief from judgment where no newly discovered evidence or retroactive change in
the law can be found.”

People v. Maddox, No. 282785 (Mich. Ct. App. Jan. 17, 2008).

Nevertheless, Petitioner appealed the January 17, 2008 order of the Court of Appeals to the
Michigan Supreme Court.
On September 9, 2008, the Michigan Supreme Court issued two separate orders. In the
first order, the Supreme Court denied Petitioner’s application for leave to appeal the December
14, 2007 order of the Court of Appeals because it was not persuaded that the questions presented
should be reviewed. People v. Maddox, 754 N.W.2d 882 (Mich. 2008). In the second order, the
Supreme Court denied Petitioner’s application for leave to appeal the January 17, 2008 order of

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the Court of Appeals because Petitioner’s “motion for relief from judgment is prohibited by
MCR 6.502(G).” People v. Maddox, 754 N.W.2d 882 (Mich. 2008).
Petitioner then returned to this Court and filed an amended habeas petition and brief,
raising seventeen discrete claims. On March 26, 2012, this Court issued an opinion and order
addressing each of Petitioner’s seventeen grounds to vacate his sentence. Because Petitioner’s
arguments lacked merit, his petition for writ of habeas corpus was denied. On April 10, 2012,
Petitioner filed timely notice of appeal. Despite that appeal, in January 2013 Petitioner filed a
motion in this Court for relief pursuant to Federal Rule of Civil Procedure 60.
II
Federal Rule of Civil Procedure 60(b) provides that a court may relieve a party from a
final judgment because of, among other things, “(1) mistake, inadvertence, surprise, or excusable
neglect; newly discovered evidence . . . [or] (3) fraud . . . misrepresentation, or misconduct by an
opposing party.” Fed. R. Civ. P. 60(b).
Addressing Petitioner’s Rule 60(b) motion is complicated by the fact that prior to filing
the motion, he filed a timely notice of appeal from this Court’s March 26, 2012 Opinion &
Order. The Sixth Circuit has established that when an appeal is pending from a district court’s
judgment, the district court is deprived of jurisdiction to issue a final ruling on a Rule 60(b)
motion. Post v. Bradshaw, 422 F.3d 419, 421 (6th Cir. 2005). The proper procedure in such
circumstances calls for Petitioner to “file his motion in the District Court. If that court indicates
that it will grant the motion, the appellant should then make a motion in [the appeals court] for a
remand of the case in order that the District Court may grant the motion.” First Nat'l Bank of

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Salem, Ohio v. Hirsch, 535 F.2d 343, 346 (6th Cir. 1976). If the district court is not disposed to
grant the motion, “the appeal will be considered in regular course.” Id.
III
Noted previously, this Court lacks subject-matter jurisdiction over Petitioner’s Rule 60(b)
motion due to his pending appeal. However, pursuant to the Sixth Circuit’s preferred procedure
for addressing Rule 60(b) motions that are filed after notice of appeal (as outlined in Hirsch),
Petitioner’s motion will be assessed. Upon review, Petitioner’s motion is not meritorious, and
this Court would decline the motion if subject-matter jurisdiction was intact.
A
In his first claim for relief, Petitioner alleged that his Sixth Amendment right to counsel
was violated when the trial court refused to grant defense counsel’s motion to withdraw and for
substitution of counsel.

This argument was dismissed by this Court in March 2012, but

Petitioner raises it again in his motion for relief. As before, the claim is without merit.
The Sixth Amendment provides, in relevant part, that “[i]n all criminal prosecutions the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. The Sixth Amendment does not guarantee, however, a “meaningful relationship”
between counsel and a defendant. Morris v. Slappy, 461 U.S. 1, 13–14 (1983).
The right to counsel encompasses the right to counsel of choice, but that right is generally
cognizable only to the extent defendant can retain counsel with private funds; an indigent
defendant does not have an absolute right to choose appointed counsel. See United States v.
Gonzalez-Lopez, 548 U.S. 140, 151–52 (2006) (citations omitted). The right to counsel of one’s
choice is not absolute, and “is circumscribed in several important respects.” Wheat v. United

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States, 486 U.S. 153, 159 (1988). The United States Supreme Court has recognized “a trial
court’s wide latitude in balancing the right to counsel of choice against the needs of fairness . . .
and against the demands of its calendar.” Gonzalez-Lopez, 548 U.S. at 152 (citing Wheat, 486
U.S. at 163–64; Morris, 461 U.S. at 11–12). Furthermore, “a court must beware that a demand
for counsel may be utilized as a way to delay proceedings or trifle with the court.” United States
v. Krzyske, 836 F.2d 1013, 1017 (6th Cir. 1988) (citations omitted). In sum, “while the right to
select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment,
the essential aim of the Amendment is to guarantee an effective advocate for each criminal
defendant rather than to ensure that a defendant will inexorably be represented by the lawyer
whom he prefers.” Wheat, 486 U.S. at 159 (citing Morris, 461 U.S. at 13–14; Jones v. Barnes,
463 U.S. 745 (1983)).
Because an indigent defendant has no absolute right to appointed counsel of choice and
because the focus of the Sixth Amendment inquiry is on effective advocacy, a criminal defendant
who is dissatisfied with appointed counsel must show “good cause” to warrant the substitution of
counsel. United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990) (footnote and citation
omitted). Good cause includes “a conflict of interest, a complete breakdown in communication
or an irreconcilable conflict with [an] attorney.” Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir.
1985) (citations omitted).

The decision regarding whether to appoint new counsel at a

defendant’s request is committed to the sound discretion of the trial court. United States v.
Trujillo, 376 F.3d 593, 606 (6th Cir. 2004) (citing United States v. White, 451 F.2d 1225, 1226
(6th Cir. 1971)).

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The United States Court of Appeals for the Sixth Circuit has cited three factors to
consider when evaluating a trial court’s denial of a request for substitute counsel: (1) the
timeliness of the motion; (2) the adequacy of the court’s inquiry into the defendant’s complaint;
and (3) whether the conflict between the attorney and the defendant was so great that it resulted
in a total lack of communication preventing an adequate defense. See Benitez v. United States,
521 F.3d 625, 632 (6th Cir. 2008) (citing Iles, 906 F.2d at 1131 n.8). These factors are balanced
with the public’s interest in the prompt and efficient administration of justice. See Iles, 906 F.2d
at 1131 n.8 (citing Wilson, 761 F.2d at 280); see also United States v. Mack, 258 F.3d 548, 556
(6th Cir. 2001) (same) (citing United States v. Williams, 176 F.3d 301, 314 (6th Cir. 1999);
United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996)).
With such standards in mind, this Court does not find any apparent errors on the record.
Petitioner’s assertion that his Sixth Amendment rights were violated by the trial court, through
its denial of counsel’s motion to withdraw and in refusing to grant Petitioner’s request for
substitution of counsel, is without merit. Petitioner was an indigent defendant and his counsel
was court appointed. A review of the record reveals that Petitioner has not provided any
evidence of a legitimate difference of opinion regarding fundamental trial tactics between
himself and defense counsel that would require substitution. Rather, the record demonstrates
that the motion to withdraw and motion for substitution of counsel occurred only because
Petitioner was upset that his request for a continuance was denied by the trial court.
Petitioner argues that his counsel was not originally appointed, but retained. This does
not change the result. The Supreme Court has long recognized “a trial court’s wide latitude in
balancing the right to counsel of choice against the needs of fairness and against the demands of

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its calendar.” Gonzalez-Lopez, 548 U.S. at 151 (citations omitted). Petitioner’s counsel did not
move to withdraw a month before trial, or a week, or even the day before. Petitioner’s counsel
moved to withdraw literally minutes before the jury panel was presented to begin voir dire. Aug.
10, 2004 Tr. 14, ECF No. 34, Ex. 6. The trial court responded,
I’m not allowing you to withdraw, because it’s too late in the game here. We’re
proceeding to trial. And you’re familiar with the case, and we’re going to be
going to trial on this. You knew, up until yesterday, you thought we were going
to jury trial on this case. And it’s too late to appoint another attorney. So, that
motion is denied.”
Id. at 14–15. Regardless of whether Petitioner’s attorney was retained, and not appointed, it was
within the trial court’s discretion to deny the motion to withdraw made only 39 minutes before
the jury was entertained for voir dire. The trial court appropriately balanced Petitioner’s right to
counsel of his choice with the “public’s interest in the prompt and efficient administration of
justice.” See Iles, 906 F.2d at 1131 n.8.
The trial court’s denial of Petitioner’s request for substitution of counsel and its ancillary
denial of counsel’s motion to withdraw did not violate Petitioner’s right to counsel under the
Sixth Amendment. The Court of Appeals’ decision with respect to this issue is not contrary to,
or an unreasonable application of, clearly established Supreme Court precedent. Habeas relief is
not warranted. Additionally, Petitioner is not entitled to relief from the Court’s earlier decision
reaching the same conclusion.
B
Petitioner’s second claim is also one he has raised before. Petitioner alleges that the
prosecutor committed misconduct by failing to “comply with discovery” due to lack of
jurisdiction and by concealing that “no probable cause existed” for the search warrant executed

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by the police. Petitioner also alleges that he was denied due process of law when the prosecution
withheld police and lab reports in violation of Brady v Maryland, 373 U.S. 83 (1963).
First, to the extent that Petitioner is claiming that the prosecutor violated state discovery
rules, he would not be entitled to habeas relief. “It is well settled that there is no general
constitutional right to discovery in a criminal case.” Stadler v. Curtin, 682 F. Supp. 2d 807, 818
(E.D. Mich. 2010) (citing Weatherford v. Bursey, 429 U.S. 545, 559 (1977); United States v.
Presser, 844 F.2d 1275, 1281 (6th Cir. 1988)). A claim that a prosecutor violated state discovery
rules is not cognizable in federal habeas review, because it is not a constitutional violation. See
Lorraine v. Coyle, 291 F.3d 416, 441 (6th Cir. 2002).
Second, regarding Petitioner’s Brady claim, the Supreme Court has held that the
prosecutor’s failure to disclose evidence favorable to the defense constitutes a denial of due
process “where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. In other words, to find a Brady
violation, not only must the evidence be suppressed, but the suppressed evidence must be
material and favorable to the accused. Elmore v. Foltz, 768 F.2d 773, 777 (6th Cir. 1985).
Favorable evidence is material “if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.” United
States v. Bagley, 473 U.S. 667, 682 (1985); see also Kyles v. Whitley, 514 U.S. 419, 432–36
(1995) (same). Material evidence is that which is “so clearly supportive of a claim of innocence
that it gives the prosecution notice of a duty to produce.” United States v. Clark, 988 F.2d 1459,
1467 (6th Cir. 1993). The duty to disclose favorable evidence includes the duty to disclose

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impeachment evidence. Bagley, 473 at 682; Giglio v. United States, 405 U.S. 150, 154–55
(1972).
The Brady rule only applies to “the discovery, after trial, of information which had been
known to the prosecution but unknown to the defense.” United States v. Agurs, 427 U.S. 97, 103
(1976); see also Mullins v. United States, 22 F.3d 1365, 1370–71 (6th Cir. 1994) (same).
Moreover, a Brady violation does not occur if previously undisclosed evidence is disclosed
during trial unless the defendant is prejudiced by its prior non-disclosure. See United States v.
Word, 806 F.2d 658, 665 (6th Cir. 1986). Thus, in order to establish a Brady violation, a
petitioner must show that: (1) evidence unknown to the petitioner and not available from another
source was suppressed by the prosecution; (2) the evidence was favorable or exculpatory; and (3)
the evidence was material to the question of the petitioner’s guilt. See Carter v. Bell, 218 F.3d
581, 601 (6th Cir. 2000); see also Strickler v. Greene, 527 U.S. 263, 281–82 (1999) (same). The
petitioner bears the burden of establishing a Brady violation. Carter, 218 F.3d at 601.
Petitioner raised this claim on direct appeal to the Michigan Court of Appeals in his
supplemental brief. The Court of Appeals found the arguments contained within the brief
“largely rambling and barely coherent, if at all.”

Maddox, 2006 WL 1412794, at *5.

Accordingly, the Court of Appeals determined, “Inasmuch as prosecutorial misconduct is
claimed, the record provides no support for this contention, and defendant’s argument fails.” Id.
Petitioner’s assertions, as presented to this Court, remain groundless. He claims that the
weight of drugs seized from his residence changed during the course of his case, but that the
packaging remained the same. According to Petitioner, this “confirm[s] the obvious: (1) there

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was no controlled buy on May 7, 2004 and (2) the trustworthiness was undermined when the
records were prepared in anticipation of litigation.” Pet’r’s Mot. 13.
Contrary to Petitioner’s assertion, there was no discrepancy regarding the amount of
cocaine found by police at Petitioner’s residence and the amount of cocaine that was stipulated to
at trial. At trial, Officer Todd Eby testified that he confiscated “crushed up crack cocaine” from
Petitioner’s residence which he placed in two zip-lock bags “for purposes of conveying the
narcotics to headquarters.” Trial Tr. vol. 3, 20, Aug. 18, 2004. Officer Eby did not testify about
how much cocaine he had found. There was no Brady violation here, Petitioner has not shown
that any evidence, much less exculpatory evidence, was withheld from him during his trial.
Petitioner’s assertions of prosecutorial misconduct in that regard are unsupported by the record,
as the Court of Appeals properly found.
Petitioner also claims there was “no probable cause” for the search warrant executed by
police at his residence, and that this was concealed by the prosecution. This assertion is equally
groundless. The Court of Appeals found that “a motion to quash or suppress the search warrant
was indeed heard and denied by the [trial] court.” Maddox, 2006 WL 1412794, at *2 n.1.
Under Stone v. Powell, 428 U.S. 465, 494 (1976), a criminal defendant may not
collaterally attack a state conviction on the ground that illegal evidence was admitted at trial
where the state has provided an opportunity for full and fair litigation of a Fourth Amendment
claim. That is, if a state provides a full and fair opportunity to litigate a Fourth Amendment
claim, a federal habeas court need not consider whether a trial court should have excluded
evidence obtained in an unconstitutional search or seizure. Cardwell v.Taylor, 461 U.S. 571, 572
(1983).

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Here, Petitioner had a full and fair opportunity to present to the state courts his Fourth
Amendment claim concerning the search warrant. Since Petitioner has failed to demonstrate that
he was denied an opportunity for full and fair litigation of that claim, any claim regarding the
validity of the search warrant is not cognizable on habeas review. Accordingly, Petitioner’s
argument that he was denied due process of law because of the prosecution’s alleged
“concealment” of the lack of probable cause for the execution of the search warrant lacks merit.
Habeas relief is not warranted. Neither is an order relieving Petitioner from this Court’s earlier
judgment.
C
Petitioner also filed an application to proceed in forma pauperis on appeal and for
appointment of counsel. Although termed as an application to proceed on appeal, Petitioner
emphasizes that his motion “asks that this court allow him to proceed on [his] 60(b) and 60(d)
action without payment of filing fees and costs.” Pet’r’s App. 1, ECF No. 65. Petitioner’s
application will be denied.
Whether Petitioner intends his application to apply to his Rule 60 motion in this Court or
to his appeal before the Sixth Circuit is irrelevant. If he means to obtain permission to proceed
in forma pauperis on appeal, this Court has already denied leave in its March 26, 2012 Opinion
& Order. If he instead intends to proceed with his Rule 60(b) motion in forma pauperis,
Petitioner has already applied for and been granted in forma pauperis status, and he need not do
so again. See April 3, 2007 Order, ECF No. 3.
Likewise, Petitioner’s application for appointment of counsel will be denied. There is no
need for an appointment of counsel regarding Petitioner’s Rule 60(b) motion in this Court, as

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there is no constitutional right to counsel in habeas proceedings. See Coleman v. Thompson, 501
U.S. 722, 752–53 (1991). Any need Petitioner may have for appointed counsel during his appeal
should be taken up with the Sixth Circuit.
IV
Accordingly, it is ORDERED that the Court DECLINES to grant Petitioner’s motion
for relief, ECF No. 66.
It is further ORDERED that Petitioner’s application to proceed in forma pauperis and for
appointment of counsel is DENIED.
Dated: February 4, 2013

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing
order was served upon each attorney or party of record
herein by electronic means or first class U.S. mail, and on
Keith Maddox-El #166273 (C-91), Carson City
Correctional Facility, 10274 Boyer Road, Carson City,
Michigan 48811 by first class U.S. mail on February 4,
2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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