Grondon v. McKee

Filing 15

ORDER denying 14 MOTION for Certificate of Appealability and denying 12 Application to Proceed Without Prepaying Fees or Costs filed by Jason Grondon. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JASON M. GRONDON,
Petitioner,

Case No. 12-cv-13158

v

Honorable Thomas L. Ludington

KENNETH MCKEE,
Respondent.
__________________________________________/
ORDER DENYING PETITIONER’S MOTION FOR ISSUANCE
OF A CERTIFICATE OF APPEALABILITY AND
APPLICATION TO PROCEED in FORMA PAUPERIS ON APPEAL
Petitioner Jason Grondon filed a motion for a certificate of appealability, alleging that his
constitutional rights were violated when he was forced to give an involuntary confession. He
previously raised the argument in his petition for writ of habeas corpus. ECF No. 1. This Court
found that argument unpersuasive, and that conclusion remains. Grondon’s motion will be
denied.
I
Grondon is confined at the Bellamy Creek Correctional Facility in Ionia, Michigan. He
was charged with murdering his uncle, Robert Green, and of taking and using Green’s debit card
to make numerous purchases after the murder. He was convicted by a jury in the Washtenaw
County Circuit Court of (1) second-degree murder, Mich. Comp Laws § 750.317; (2) stealing or
retaining a financial transaction device without consent, Mich. Comp Laws § 750.157n(1); (3)
illegal use of a financial transaction device, Mich. Comp Laws § 750.157q; and (4) larceny less
than $ 200.00, Mich. Comp Laws § 750.356(5). He was sentenced to thirty-four to fifty-one

years imprisonment on the second-degree murder conviction, two to four years in prison on each
of the financial transaction device convictions, and ninety-three days in jail on the larceny
conviction. Grondon’s conviction was affirmed on appeal. People v. Grondon, 796 N.W.2d 81
(Mich. 2011).
On July 18, 2013, Grondon filed a petition for a writ of habeas corpus asserting three
arguments. First, he alleged that the trial court allowed his coerced, involuntary confession to be
admitted into evidence. Second, he alleged that the prosecutor committed prejudicial misconduct
during closing arguments. Finally, he alleged that the trial court abused its discretion when
calculating Offense Variable 7 during sentencing.
The Court addressed each of these allegations in its September 12, 2013 Opinion &
Order. The Court concluded that (1) it was objectively reasonable for the state courts to conclude
that Petitioner’s confession was voluntary; (2) Grondon procedurally defaulted his claim of
prosecutorial misconduct; and (3) Grondon’s claim that his sentence was improperly scored was
not a cognizable claim for federal habeas review. The Court therefore issued an order denying
Grondon’s petition for a writ of habeas corpus, denying a certificate of appealability, and
denying Grondon leave to proceed in forma pauperis.
Ignoring this Court’s order, Grondon has now filed a motion for a certificate of
appealability. ECF No. 14. He repeats the first allegation from his petition: that his confession
was involuntary and coerced. Grondon’s motion does not assert any new information, and his
motion will be denied.
II
Before Petitioner may appeal this Court’s dispositive decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b). A certificate of

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appealability may issue “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When a court rejects a habeas claim on the merits,
the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists
would find the district court’s assessment of the constitutional claim debatable or wrong. See
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

“A petitioner satisfies this standard by

demonstrating that . . . jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying
that standard, a district court may not conduct a full merits review, but must limit its examination
to a threshold inquiry into the underlying merit of the petitioner’s claims. Id. at 336-37. “The
district court must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant.” Rules Governing § 2255 Proceedings, Rule 11, 28 U.S.C.A. foll. § 2255.
III
This Court has already ruled on Grondon’s claim: in its September 12, 2013 Opinion &
Order, the Court concluded that it was objectively reasonable for the state courts to decide that
Petitioner’s confession was voluntary. See ECF No. 9 at 11. However, Grondon disputes this
conclusion in his motion for a certificate of appealability. Grondon reasserts that he was in
excruciating pain during the police interrogations because he had kidney stones and that he
subjectively believed that he would not be provided medical treatment until and unless he
confessed.
As explained in its Opinion & Order, Grondon has not made a substantial showing of the
denial of a constitutional right on his claim that his confession was coerced. After reviewing
Grondon’s videotaped confession, the state trial judge explicitly rejected Grondon’s claim that
his confession was coerced because he was suffering from extreme pain. The judge noted that

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although Grondon shows “signs of discomfort intermittently,” nothing on the tape showed
coercive conduct or that Grondon made his confession in response to threats to withhold medical
treatment. (Tr. 11/3/08, pp.4-5). The trial judge ultimately concluded that there was no coercive
activity on the part of the police. The appellate court affirmed the trial judges’ ruling. People v.
Grondon, No. 292494 at *1, 5 (Mich. Ct. App. Nov. 9, 2010).
When considering federal habeas petitions, a federal district court must presume the
correctness of state court factual determinations. Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir.
2001). The trial court judge and the Michigan Court of Appeals rejected Petitioner’s factual
allegations that the police promised him medical care only if he confessed, and Petitioner has not
offered clear and convincing evidence to the contrary; in fact, he repeats the same factual
allegations he presented to the district court in his petition for habeas corpus. Therefore, Grondon
will not be granted a certificate of appealability with regard to his claim that his confession was
coerced.
Having considered the matter, the Court concludes that Grondon cannot make a
substantial showing of the denial of a constitutional right, and reasonable jurists would not
conclude that his petition should have been resolved in a different manner, or that the issues
presented were adequate enough for encouragement to proceed further. See Slack v. McDaniel,
529 U.S. 473, 483-84 (2000). Therefore, a certificate of appealability is not warranted. The
Court further concludes that Petitioner should not be granted leave to proceed in forma pauperis
on appeal, as any appeal would be frivolous. See Fed.R.App. P. 24(a).
IV
Accordingly, it is ORDERED that Petitioner’s Motion for a Certificate of Appealability
(ECF No. 14) is DENIED.

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It is further ORDERED that Petitioner’s Application to Proceed in forma pauperis on
Appeal (ECF No. 12) is DENIED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: October 29, 2013

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 Jason Grondon #237510, Bellamy Creek
Correctional Facility, 1727 West Bluewater Highway, Ionia, MI 48846
by first class U.S. mail on October 29, 2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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