Stokes v. Wolfenbarger
Filing
63
MEMORANDUM OPINION and ORDER on Remand Denying 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Petitioner Leave to Appeal in Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL STOKES,
Petitioner,
Civil No. 2:07-CV-11341
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
v.
RANDALL HAAS,
Respondent,
________________________________/
OPINION AND ORDER ON REMAND DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING PETITIONER LEAVE TO APPEAL IN
FORMA PAUPERIS
Michael Stokes, (“Petitioner”), presently confined at the Cotton
Correctional Facility in Jackson, Michigan, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. 1 In his application, filed pro se, petitioner
challenges his conviction for assault with intent to do great bodily harm less than
murder, M.C.L.A. 750.84; and being an habitual offender, M.C.L.A. 769.12. This
matter is on remand from the United States Court of Appeals for the Sixth Circuit
following the reversal of the issuance of a conditional writ by this Court. For the
1
When petitioner originally filed his petition for writ of habeas corpus, he
was incarcerated at the Macomb Correctional Facility, but has since been
transferred several times, most recently to the Cotton Correctional Facility. The
only proper respondent in a habeas case is the habeas petitioner’s custodian,
which in the case of an incarcerated habeas petitioner would be the warden of
the facility where the petitioner is incarcerated. See Edwards Johns, 450 F. Supp.
2d 755, 757 (E.D. Mich. 2006); See also Rule 2(a), 28 foll. U.S.C. § 2254.
Therefore, the Court substitutes Warden Randall Haas in the caption.
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reasons that follow, the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was originally charged with assault with intent to commit murder.
Following a jury trial in the Wayne County Circuit Court, in which petitioner
represented himself with the assistance of standby counsel, petitioner was
convicted of the lesser included offense of assault with intent to do great bodily
harm less than murder.
The complainant testified that he had been drinking alcohol and consuming
drugs with several people including petitioner on the day of the incident. (Tr.
10/12/04, p. 107). The complainant and petitioner went to the store and bought
additional alcoholic beverages, which they took to a park and drank. (Id. at p.
108). After finishing the beverages, the complainant decided to leave. As he was
leaving, petitioner asked him for money. (Id. at p. 110). The complainant
informed petitioner that he did not have any more money and turned to leave. As
he did so, the complainant felt a pinch in his back and petitioner grabbing him.
(Id. at p. 112). The complainant turned towards petitioner and the men began to
fight. As the complainant separated away from petitioner, he noticed that he was
bleeding. (Id. at p. 116). Petitioner fled the scene, while the complainant walked
to a nearby hospital, where he collapsed. The complainant was stabbed
numerous times in the back, chest, and abdomen. One of the wounds
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eviscerated his bowel and another caused his lung to collapse. The complainant
also suffered defensive wounds to his arms and wrists. (Tr. 10/13,2004, p. 66).
Petitioner’s conviction was affirmed on appeal. People v. Stokes, No.
258928 (Mich.Ct.App. April 25, 2006); lv. den. 476 Mich. 868; 720 N.W. 2d 314
(2006).
Petitioner filed a petition for writ of habeas corpus, in which he sought
habeas relief on the following four grounds:
I. There was constitutionally insufficient evidence admitted at trial to
justify consideration of assault with intent to murder charges.
II. Petitioner’s trial was rendered unfair by the omission of a
necessary jury instruction regarding the reliability of the victim’s
testimony.
III. Petitioner’s trial was rendered unfair by the omission of a
necessary jury instruction regarding self-defense.
IV. There was constitutionally insufficient evidence admitted at trial to
support Petitioner’s conviction.
Respondent filed an answer to the petition for writ of habeas corpus.
In reviewing the trial court record to determine the validity of petitioner’s
claims, as well as the affirmative defenses raised by respondent, this Court
became aware of a fact that was not brought to its attention by either litigant, or
noted by the Michigan Court of Appeals in their opinion, namely, that petitioner
represented himself at trial, after expressing dissatisfaction on the first day of trial
with his trial counsel’s representation. This Court entered an opinion and order
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holding the petition for writ of habeas corpus in abeyance to permit petitioner to
return to the state courts to exhaust additional claims, specifically his claim that
he did not knowingly and intelligently waive his right to counsel. The Court also
administratively closed the case. Stokes v. Wolfenbarger, No. 2008 WL 495371
(E.D. Mich. February 20, 2008).
Petitioner filed a post-conviction motion for relief from judgment with the
trial court, which was denied. People v. Stokes, No. 04-07072-01 (Third Circuit
Court, May 20, 2008). The Michigan appellate courts denied petitioner leave to
appeal. People v. Stokes, No. 286305 (Mich.Ct.App. January 22, 2009); lv. den.
485 Mich. 883; 772 N.W. 2d 55 (2009).
On November 9, 2009, this Court granted petitioner’s motion to reopen the
habeas petition and also permitted him to amend his petition for writ of habeas
corpus to add a claim that he did not knowingly and intelligently waive his Sixth
Amendment right to trial counsel.
On November 4, 2011, this Court granted petitioner a conditional writ of
habeas corpus, finding that petitioner did not knowingly and intelligently waive his
Sixth Amendment right to be represented by counsel at his trial. The Court
ordered that petitioner be afforded a new trial with the assistance of counsel
within 90 days or an unconditional writ would issue. See Stokes v. Scutt, 821 F.
Supp. 2d 898 (E.D. Mich. 2011). Because the Court granted habeas relief on this
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claim, the Court declined to address the merits of petitioner’s remaining claims.
Id.
On May 22, 2013, the Sixth Circuit reversed the Court’s decision to grant a
writ of habeas corpus, finding that petitioner’s waiver of counsel claim was
procedurally defaulted. The Sixth Circuit also remanded the matter to this Court
for consideration of petitioner’s remaining claims. Stokes v. Scutt, 527 Fed. Appx.
358 (6th Cir. 2013). The matter is now before this Court on remand to adjudicate
petitioner’s first four claims that he raised in his original habeas petition.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for
habeas cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim–
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
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A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs
when “a state court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may
not “issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral
review of a state-court decision must be consistent with the respect due state
courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
The “AEDPA thus imposes a ‘highly deferential standard for evaluating
state-court rulings,’and ‘demands that state-court decisions be given the benefit
of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)((quoting Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24
(2002)(per curiam)). “[A] state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the state court’s decision.” Harrington v. Richter, 131 S. Ct.
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770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court has emphasized “that even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Id. (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to §
2254(d), “a habeas court must determine what arguments or theories supported
or...could have supported, the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision” of the Supreme
Court. Id.
III. Discussion
A. Claims # 1 and # 4. The sufficiency of evidence claims.
The Court will consolidate petitioner’s two sufficiency of evidence claims
together for judicial clarity.
In his first claim, petitioner argues that the judge erred in denying his
motion for a directed verdict on the original assault with intent to commit murder
charge on the ground that there was insufficient evidence that petitioner had an
intent to kill the victim so as to permit this charge to be submitted to the jury.
Petitioner is not entitled to habeas relief on his first claim because he was
acquitted of the assault with intent to commit murder charge. “[C]learly
established Supreme Court law provides that a defendant has a right not to be
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convicted except upon proof of every element of a crime beyond a reasonable
doubt; the Supreme Court has never held that the submission of a charge, upon
which there is insufficient evidence, violates a defendant’s constitutional rights
where the defendant is acquitted of that charge.” Long v. Stovall, 450 F. Supp.
2d 746, 752 (E.D. Mich. 2006)(quoting Skrzycki v. Lafler, 347 F. Supp.2d 448,
453 (E.D. Mich. 2004)(emphasis original); See also Aldrich v. Bock, 327 F.
Supp. 2d 743, 761-62 (E.D. Mich. 2004). A number of cases have held that the
submission to a jury of a criminal charge constitutes harmless error where the
habeas petitioner is acquitted of that charge. Daniels v. Burke, 83 F. 3d 760,
765, fn. 4 (6th Cir. 1996); Long, 450 F. Supp. 2d at 752; Aldrich, 327 F. Supp. 2d
at 761; Johnson v. Hofbauer, 159 F. Supp. 2d 582, 596 (E.D. Mich. 2001); But
see Williams v. Jones, 231 F. Supp. 2d 586, 593-94 (E.D.Mich. 2002)(finding
this claim cognizable). In light of the fact that petitioner was acquitted of the
assault with intent to commit murder charge and only found guilty of the lesser
included offense of assault with intent to do great bodily harm less than murder,
any error in submitting the assault with intent to commit murder charge to the
jury would not entitle petitioner to habeas relief. See King v. Trippett, 27 Fed.
Appx. 506, 510 (6th Cir. 2001)(petitioner who alleged that the trial court
improperly refused to enter a directed verdict on his armed robbery charge, even
though the jury subsequently acquitted him on that charge, failed to state a claim
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sufficient for habeas corpus relief).
In his fourth claim, petitioner contends that there was insufficient evidence
to convict him of assault with intent to do great bodily harm less than murder.
It is beyond question that “the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.” In Re Winship, 397
U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction is, “whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a
court to “ask itself whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt.” Instead, the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Id. at 318-19 (internal citation and footnote
omitted)(emphasis in the original).
More importantly, a federal habeas court may not overturn a state court
decision that rejects a sufficiency of the evidence claim simply because the
federal court disagrees with the state court’s resolution of that claim. Instead, a
federal court may grant habeas relief only if the state court decision was an
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objectively unreasonable application of the Jackson standard. See Cavazos v.
Smith, 132 S. Ct. 2, 4 (2011). “Because rational people can sometimes
disagree, the inevitable consequence of this settled law is that judges will
sometimes encounter convictions that they believe to be mistaken, but that they
must nonetheless uphold.” Id. For a federal habeas court reviewing the
sufficiency of evidence for a state court conviction, “the only question under
Jackson is whether that finding was so insupportable as to fall below the
threshold of bare rationality.” Coleman v. Johnson, 132 S.Ct. 2060, 2065 (2012).
Under Michigan law, the elements of assault with intent to do great bodily
harm less than murder are: (1) an attempt or threat with force or violence to do
corporal harm to another (an assault), and (2) an intent to do great bodily harm
less than murder. Lovely v. Jackson, 337 F. Supp. 2d 969, 977 (E.D. Mich.
2004)(citing People v. Mitchell, 149 Mich. App. 36, 38; 385 N.W. 2d 717 (1986)).
The term “intent to do great bodily harm less than murder” is defined as an intent
to do serious injury of an aggravated nature. Mitchell, 149 Mich. App. at 39.
The evidence was sufficient for a rational trier of fact to conclude that
petitioner intended to do great bodily harm to the complainant. The complainant
testified that petitioner would not let him leave the park after he denied
petitioner’s request for money. The complaint was stabbed several times in the
back, chest, and abdomen. One of the wounds eviscerated the complainant’s
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bowel and another caused his lung to collapse. The complainant also suffered
defensive wounds to his arms and wrists. The complainant testified that he was
unarmed during the struggle. The multiple stab wounds to the victim, particularly
to vital areas of his body, at a minimum established an intent to do great bodily
harm on petitioner’s part. See e.g. People v. Rushlow, 179 Mich. App. 172, 179;
445 N.W. 2d 222 (1989)(multiple stab wounds established, at a minimum, the
defendant’s intent to do great bodily harm, so as to support second-degree
murder conviction). Petitioner is not entitled to habeas relief on his fourth claim.
B. Claims # 2 and # 3. The jury instruction claims.
The Court will consolidate petitioner’s jury instruction claims together for
judicial economy.
The burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack upon the constitutional validity of
a state court conviction is even greater than the showing required in a direct
appeal. The question in such a collateral proceeding is whether the ailing
instruction so infected the entire trial that the resulting conviction violates due
process, not merely whether the instruction is undesirable, erroneous, or even
“universally condemned,” and an omission or incomplete instruction is less likely
to be prejudicial than a misstatement of the law. Henderson v. Kibbee, 431 U.S.
145, 154-155 (1977). The challenged instruction must not judged in isolation but
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must be considered in the context of the entire jury charge. Jones v. United
States, 527 U.S. 373, 391 (1999). Further, any ambiguity, inconsistency or
deficiency in a jury instruction does not by itself necessarily constitute a due
process violation. Waddington v. Sarausad, 555 U.S. 179, 190 (2009). It is not
enough that there might be some “slight possibility” that the jury misapplied the
instruction. Id. at 191. Federal habeas courts do not grant relief, as might a state
appellate court, simply because a jury instruction may have been deficient in
comparison to a model state instruction. Estelle v. McGuire, 502 U.S. 62, 72
(1991).
In his second claim, petitioner contends that the judge erred in failing to
sua sponte give the jurors a cautionary instruction to view the testimony of the
complainant with caution because he was an admitted drug addict. The
Michigan Court of Appeals rejected petitioner’s claim:
Generally, a trial court is not required to give sua sponte a limiting or
cautionary instruction. Here, the jury was sufficiently instructed on its
obligation to determine the credibility of a witness and the factors it
should consider when doing so. The court properly instructed the jury
that it must decide which witnesses to believe and that it does not
have to accept or reject everything a witness says. The court
instructed the jury to rely on its common sense when weighing the
testimony of a witness. The court also listed for the jury numerous
questions to consider when deciding if a witness is worthy of belief,
such as the witness’s ability to see and hear clearly, whether the
witness was distracted and whether the witness seemed to have a
good memory. Defendant did not request a cautionary instruction
below, and he did not object to the jury instructions when they were
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given. The instructions the court gave were sufficient to adequately
protect defendant’s rights. Thus, it was not plain error for the trial court
to not sua sponte give a cautionary instruction regarding the victim’s
testimony.
Stokes, Slip. Op. at * 1-2 (internal citations omitted).
The Sixth Circuit “has long recognized the importance of an
addict-informant instruction in appropriate cases.” Scott v. Mitchell, 209 F. 3d
854, 883 (6th Cir. 2000)(quoting United States v. Brown, 946 F. 2d 1191, 1195
(6th Cir.1991)). “However, there is no per se rule requiring such instructions to
be given in all cases involving addict testimony; instead, ‘the need for such an
instruction depends on the circumstances of each case.’” Id. (quoting Brown,
946 F. 2d at 1195)). There is less need for a cautionary jury instruction about
the credibility of an drug addict “where the jury is aware that the witness is an
addict and where there was substantial corroboration for the witness’s
testimony.” U.S. v. Combs, 369 F. 3d 925, 939 (6th Cir. 2004).
Petitioner is not entitled to habeas relief on his claim. The jury was aware
that the complainant was a drug abuser. There was no indication from the
record that the complainant’s drug abuse effected his ability to testify or created
a motive for him to testify falsely. The judge instructed the jurors on the factors
that they needed to consider in judging the witnesses’ credibility and motivation
for testifying. The judge’s failure to give the jurors a cautionary instruction on
drug addicts’ testimony thus did not deprive petitioner of a fair trial and does not
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entitle him to habeas relief. Scott, 209 F. 3d at 882-83. Petitioner is not entitled
to habeas relief on his second claim.
In his third claim, petitioner contends that the trial judge erred in failing ot
instruct the jury on the defense of self-defense. The Michigan Court of Appeals
rejected petitioner’s claim:
The prosecution presented testimony that clearly showed that
defendant was the initial aggressor in this situation and defendant
offered no evidence to prove otherwise. Defendant attacked the victim
when he denied defendant’s request for money. The victim testified
that when he turned his back to leave the park, he felt a pinch. When
he turned around, defendant hit him. The victim also testified that he
did not have a weapon when defendant attacked him, and defendant
presented no evidence to contradict the victim’s testimony. Moreover,
no evidence was presented from which to infer that defendant had an
honest and reasonable belief that he was in imminent danger of death
or great bodily harm and that it was necessary for him to exercise
deadly force. Consequently, the trial court’s refusal to grant
defendant’s request for a self-defense instruction was proper.
Stokes, Slip. Op. at * 2.
A defendant in a criminal trial has the right to “a meaningful opportunity to
present a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984).
“[A] necessary corollary of this holding is the rule that a defendant in a criminal
trial has the right, under appropriate circumstances, to have the jury instructed
on his or her defense, for the right to present a defense would be meaningless
were a trial court completely free to ignore that defense when giving
instructions.” See Taylor v. Withrow, 288 F. 3d 846, 852 (6th Cir. 2002).
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A defendant is therefore entitled to a jury instruction as to any recognized
defense for which there exists evidence sufficient for a reasonable juror to find in
his or her favor. Mathews v. United States, 485 U.S. 58, 63 (1988). A state trial
court’s failure to instruct a jury on self-defense when the instruction has been
requested and there is sufficient evidence to support such a charge violates a
criminal defendant’s rights under the Due Process Clause. Taylor, 288 F. 3d at
851.
Under Michigan law, one acts lawfully in self-defense if he or she honestly
and reasonably believes that he or she is in danger of serious bodily harm or
death, as judged by the circumstances as they appeared to the defendant at the
time of the act. Blanton v. Elo, 186 F. 3d 712, 713, n. 1 (6th Cir. 1999)(citing to
People v. Heflin, 434 Mich. 482; 456 N. W. 2d 10 (1990)). To be lawful
self-defense, the evidence must show that: (1) the defendant honestly and
reasonably believed that he was in danger; (2) the danger feared was death or
serious bodily harm or imminent forcible sexual penetration; (3) the action taken
appeared at the time to be immediately necessary; and (4) the defendant was
not the initial aggressor. See Johnigan v. Elo, 207 F. Supp. 2d 599, 608-09 (E.D.
Mich. 2002)(citing People v. Barker, 437 Mich. 161, 165; 468 N.W. 2d 492
(1991); People v. Kemp, 202 Mich. App. 318, 322; 508 N.W.2d 184 (1993);
People v. Deason, 148 Mich. App. 27, 31; 384 N.W.2d 72 (1985)). Under
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Michigan law, a defendant is not entitled to use any more force than is
necessary to defend himself. Johnigan, 207 F. Supp. 2d at 609 (citing Kemp,
202 Mich. App. at 322). “[T]he law of self-defense is based on necessity, and a
killing or use of potentially lethal force will be condoned only when the killing or
use of potentially lethal force was the only escape from death, serious bodily
harm, or imminent forcible sexual penetration under the circumstances.”
Johnigan, 207 F. Supp. 2d at 609 (internal citation omitted).
The trial court’s refusal to instruct the jury on the defense of self-defense
did not deprive petitioner of a fair trial, because there was insufficient evidence
presented at trial to support the giving of such an instruction. There was no
evidence on the record that the complainant was armed with a weapon at the
time of the assault or had otherwise threatened petitioner with death or serious
bodily injury. Petitioner stabbed the complainant numerous times in the back,
chest, and abdomen. One of the wounds eviscerated the complainant’s bowel
and another caused his lung to collapse. The complainant also suffered
defensive wounds to his arms and wrists. The severity and number of the stab
wounds inflicted shows that petitioner used excessive force in assaulting the
victim. There was no evidence to show that the complainant had been armed
with a weapon or had otherwise threatened petitioner with death or serious
bodily injury, so as to support a self-defense claim.
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Because there was no evidence to support petitioner’s self-defense claim,
the trial court’s failure to give an instruction on the defense of self-defense did
not deprive petitioner of his constitutional right to due process. Allen v. Morris,
845 F. 2d 610, 616-17 (6th Cir. 1988); Melchior v. Jago, 723 F. 2d 486, 493-94
(6th Cir. 1983). The mere fact that petitioner argued self-defense in his closing
argument would be insufficient to require a jury instruction on self-defense,
because closing arguments are not evidence. A defense attorney’s closing
argument which suggests a defense does not support an instruction on that
defense, in the absence of supporting evidence for that defense. Petitioner is
not entitled to habeas relief on his third claim.
C. A certificate of appealability.
A habeas petitioner must receive a certificate of appealability (“COA”) in
order to appeal the denial of a habeas petition for relief from either a state or
federal conviction. 28 U.S.C. §§ 2253(c)(1)(A), (B). A court may issue a COA
“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 federal district 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
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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 this 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 Court will deny a certificate of appealability, because jurists of reason
would not find the Court’s resolution of the claims to be debatable.
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP)
is a lower standard than the standard for certificates of appealability. See Foster
v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v.
Youngblood, 116 F. 3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of
the denial of a constitutional right , a court may grant IFP status if it finds that an
appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a). “Good faith” requires a showing that the issues raised are not
frivolous; it does not require a showing of probable success on the merits.
Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not debate this
Court’s resolution of petitioner’s claims, the issues are not frivolous; therefore,
an appeal could be taken in good faith and petitioner may proceed in forma
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pauperis on appeal. Id.
IV. CONCLUSION
For the reasons stated above, this Court concludes that Petitioner Stokes
is not entitled to federal-habeas relief on the claims presented in his petition.
Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is
DENIED WITH PREJUDICE. (Dkt. # 1).
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner will be granted leave to appeal
in forma pauperis.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: July 9, 2014
I hereby certify that a copy of the foregoing document was served upon
parties/counsel of record on July 9, 2014, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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