Howard v. Warren
Filing
32
OPINION and ORDER denying re 1 Petition for Writ of Habeas Corpus and denying certificate of appealability Signed by District Judge Paul D. Borman. (DGoo)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRUCE ALAN HOWARD,
Petitioner,
CASE NO. 08-10222
v.
MILLICENT WARREN,
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Respondent.
___________________________________/
OPINION AND ORDER DENYING THE HABEAS PETITION
AND DENYING A CERTIFICATE OF APPEALABILITY
This matter is pending before the Court on petitioner Bruce Alan Howard’s habeas
corpus petition under 28 U.S.C. § 2254. Petitioner is challenging his Wayne County conviction
and sentence of life imprisonment for armed robbery. Petitioner alleges that he is in custody in
violation of his rights under the Fourth, Sixth, and Fourteenth Amendments to the United States
Constitution. The Court has concluded from a review of the record that Petitioner’s claims do
not warrant granting the writ of habeas corpus. Therefore, the habeas petition will be denied.
I. BACKGROUND
A. The State Court Proceedings
The record indicates that a series of robberies occurred on Dix and Fort Streets in
Southwest Detroit during December of 1992 and January of 1993. This case involves the
robbery of eleven people at the Boomerang Bar, 403 Dix Street, on January 24, 1993. The
prosecution’s theory was that Petitioner directly robbed the people or aided and abetted his codefendants in robbing the establishment and its patrons. Petitioner’s co-defendants were Joseph
Rosenthal, Stanley Battle, Arlander Bunn, and Johnny Ruffin.1 Petitioner was tried jointly with
Stanley Battle, but before a separate jury, in the former Recorder’s Court for the City of Detroit.
The evidence at trial established that four or five masked men entered the Boomerang
Bar at approximately 1:00 a.m. on January 24, 1993. The men fired some gunshots into the
ceiling and robbed the occupants of money, purses, wallets, and jewelry. The robbers also took
money from the cash register and unopened bottles of liquor. They left the premises after
ordering everyone to go into a restroom.
On the following day, the police arrested Joseph Rosenthal, Johnny Ruffin, and Arlando
Bunn after observing the three men running from a bar on Dix Street at approximately 12:45
a.m. Rosenthal made a statement to the police in which he implicated himself, Gary Ruffin,
Stanley Battle, and a man named “Bruce” in a robbery that occurred during the previous month.
Rosenthal pointed out the homes of Stanley Battle and “Bruce” to the police, who obtained a
search warrant for Petitioner’s home. The police executed the warrant on January 26, 1993, and
arrested Petitioner at the same time. During a subsequent interrogation by the police, Petitioner
admitted that he, Joseph Rosenthal, Stanley Battle, Johnny Ruffin, and Arlander Bunn had
participated in the robbery and that he had taken money from the register.
Stanley Battle was arrested at his place of employment. He was handcuffed and placed
in the back seat of the squad car. When the officers and Battle arrived at the police station,
Battle exited the squad car. An officer located a woman’s ring in the back seat where Battle had
been seated. Battle was brought inside where the police found another woman’s ring in his
1
The spelling of these names varies in the record and in court documents. Rosenthal’s
name is spelled Rosenthall in places, Johnny Ruffin is sometimes referred to as Gary Ruffin, and
Arlando Bunn is sometimes referred to as Orlando Bunn.
2
pocket. Betty Yates testified at trial that the two rings were her engagement and wedding rings.
Another victim, Linda Riopelle, identified co-defendant Stanley Battle in a pretrial lineup, and Jeffrey Johnson identified Petitioner in the line-up. Although the robbers had worn ski
masks, Ms. Riopelle testified at trial that Stanley Battle’s mask had large holes in it and that she
was able to see much of his face. Mr. Johnson testified that Petitioner was not wearing his mask
when he ushered the occupants of the bar into the restroom. Petitioner’s only witness was his
mother, who testified that Petitioner was at home with her on the night of the crime.
On April 14, 1994, Petitioner’s jury found him guilty of eleven counts of armed robbery,
MICH. COMP. LAWS § 750.529. The trial court sentenced Petitioner as a habitual offender to
eleven consecutive terms of life imprisonment. The written judgment of sentence, however,
states that the terms are concurrent. The Michigan Court of Appeals affirmed Petitioner’s
convictions in an unpublished per curiam opinion, see People v. Howard, No. 175615 (Mich. Ct.
App. July 16 1996), and on March 28, 1997, the Michigan Supreme Court denied leave to
appeal. See People v. Howard, 454 Mich. 885 (1997) (table).
Petitioner filed several post-conviction motions. In a motion for new trial, he argued that
trial counsel was ineffective for failing to challenge an illegal search and arrest. The trial court
denied Petitioner’s motions, and both appellate courts denied leave to appeal the trial court’s
decision for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). See
People v. Howard, 259953 (Mich. Ct. App. June 24, 2005); People v. Howard, 474 Mich. 939
(2005) (table).
Petitioner also filed a motion for relief from judgment, which the trial court denied. The
Michigan Court of Appeals denied leave to appeal the trial court’s decision on the ground that
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Petitioner had failed to establish entitlement to relief under Michigan Court Rule 6.508(D). See
People v. Howard, No. 277843 (Mich. Ct. App. Sept. 28, 2007). On January 8, 2008, the
Michigan Supreme Court denied leave to appeal after concluding that Petitioner’s motion for
relief from judgment was a successive motion, which was prohibited by Michigan Court Rule
6.502(G). See People v. Howard, 480 Mich. 1013 (2008) (table)
B. The Federal Court Proceedings
Petitioner signed and dated his habeas corpus petition on January 11, 2008. The habeas
petition alleges that (1) Petitioner’s trial and appellate attorneys were ineffective, (2) he was
arrested in his home without an arrest warrant, (3) the state sentencing guidelines were
inaccurately scored, (4) the prosecution failed to establish probable cause at the preliminary
examination, and (5) he is innocent. Respondent argued in a motion for summary judgment that
the habeas petition was barred from review by the statute of limitations. The Court initially
agreed and dismissed the habeas petition as time-barred, because Petitioner filed his habeas
petition over nine years after the statute of limitations expired and it appeared that none of his
post-conviction motions tolled the statute of limitations. On November 13, 2009, the United
States Court of Appeals for the Sixth Circuit affirmed this Court’s order and judgment
dismissing Petitioner’s case.
Petitioner subsequently moved for rehearing in the Court of Appeals and for relief from
judgment in this Court. He maintained that the trial court’s docket had been corrected to show
that he filed a post-conviction motion which tolled the statute of limitations. The Court granted
Petitioner’s motion for relief from judgment and re-opened this case. The Court of Appeals
subsequently remanded Petitioner’s case to this Court for a determination of whether dismissal
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was still appropriate in light of the new evidence.
Meanwhile, Respondent filed an answer to the petition in which she argued through
counsel that Petitioner’s claims lacked merit, were procedurally defaulted, or were not
cognizable on habeas review. Neither the statute of limitations, nor the doctrine of procedural
default, are jurisdictional limitations. Holland v. Florida, __ U.S. __, __, 130 S. Ct. 2549, 2560
(2010) (quoting Day v. McDonough, 547 U.S. 198, 205 (2006)) (the statute of limitations);
Pudelski v. Wilson, 576 F.3d 595, 606 (6th Cir. 2009) (procedural default), cert. denied, __ U.S.
__, 130 S. Ct. 3274 (2010)). The Court therefore will proceed to adjudicate the merits of
Petitioner’s claims, using the following standard of review.
II. STANDARD OF REVIEW
A habeas petitioner is entitled to the writ of habeas corpus only if the state court’s
adjudication of his claims on the merits
(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 proceedings.
28 U.S.C. § 2254(d).
A state court’s decision 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
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Court] to the facts of a prisoner’s case.” Id. at 409. “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, __ U.S. __, __, 131 S. Ct. 770,
786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
III. DISCUSSION
A. Trial Counsel
The first and second habeas claims allege that Petitioner’s trial attorney was ineffective
for failing to challenge Petitioner’s arrest and the warrant to search his home. Petitioner
contends that the affidavit supporting the search warrant was invalid and that he was arrested
inside his home absent a complaint or arrest warrant.
1. Strickland v. Washington; Kimmelman v. Morrison
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must
demonstrate “that counsel’s performance was deficient” and “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to file
a motion to suppress evidence is not per se ineffective assistance of counsel. Kimmelman v.
Morrison, 477 U.S. 365, 384 (1986). “Where defense counsel’s failure to litigate a Fourth
Amendment claim competently is the principal allegation of ineffectiveness, the defendant must .
. . prove that his Fourth Amendment claim is meritorious and . . . a reasonable probability that
the verdict would have been different absent the excludable evidence in order to demonstrate
actual prejudice.” Id. at 375.
2. The Search Warrant
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Petitioner contends that the affidavit supporting the search warrant in his case contained a
false statement and was based on mere belief or suspicion. Petitioner also claims that the
affidavit failed to (1) establish probable cause, (2) set forth any information regarding the items
sought, and (3) establish a nexus between the place to be searched and the evidence sought.
a. Clearly Established Federal Law
The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. amend. IV.
It is established law that a warrant affidavit must set forth particular facts and
circumstances underlying the existence of probable cause, so as to allow the
magistrate to make an independent evaluation of the matter. If an informant’s tip
is the source of information, the affidavit must recite “some of the underlying
circumstances from which the informant concluded” that relevant evidence might
be discovered and “some of the underlying circumstances from which the officer
concluded that the informant, whose identity need not be disclosed, . . . was
‘credible’ or his information ‘reliable.’” Because it is the magistrate who must
determine independently whether there is probable cause, it would be an
unthinkable imposition upon his authority if a warrant affidavit, revealed after the
fact to contain a deliberately or reckless false statement, were to stand beyond
impeachment.
Franks v. Delaware, 438 U.S. 154, 165 (1978) (citations omitted). In Illinois v. Gates, 462 U.S.
213 (1983), the Supreme Court
held that the Fourth Amendment’s requirement of probable cause for the issuance
of a warrant is to be applied, not according to a fixed and rigid formula, but rather
in the light of the “totality of the circumstances” made known to the magistrate.
[The Supreme Court] also emphasized that the task of a reviewing court is not to
conduct a de novo determination of probable cause, but only to determine whether
there is substantial evidence in the record supporting the magistrate’s decision to
issue the warrant.
Massachusetts v. Upton, 466 U.S. 727, 728 (1984). The magistrate’s action “cannot be a mere
ratification of the bare conclusions of others.” Gates, 462 U.S. at 239.
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b. Application
The affidavit supporting the search warrant in this case states that an armed robbery
occurred at the Milo Lounge on Dix Street on December 23, 1992. A person seated at a table in
the bar was killed. Additional robberies occurred at 3442 W. Fort Street on January 10, 1993,
and at 403 Dix Street on January 24, 1993. On January 25, 1993, the police observed three men
running away from an establishment at 9623 W. Fort Street. The men got in a car and sped
away, pursued by the police, who eventually stopped the three men. The men fit the description
of the men who were wanted for the robbery of the bar at 403 Dix Street on the previous day.
They were identified as Joseph Rosenthal, Johnny Ruffin, and Arlando Bunn. Guns taken from
their car were identified as weapons used in the robbery at 403 Dix Street on January 24, 1993,
and at 3442 W. Fort Street on January 10, 1993. The caliber of one gun was the same as the
caliber of the bullet removed from the deceased victim of the Milo Lounge robbery. Rosenthal
informed the police that he drove the car used in the Milo Lounge robbery on December 23,
1992, and that Gary Ruffin, Stanley Battle, and a man named “Bruce” had been with him.
Rosenthal pointed out “Bruce’s” home to the police.
The affidavit sought permission to search “Bruce’s” home at 2177 Deacon Street in
Detroit. The affidavit set forth specific information regarding the items sought: guns or
ammunition, papers related to residence or ownership of the home, photographs purporting to
depict “Bruce,” and any other indicia of a crime.
The magistrate could have inferred from the totality of the circumstances described in the
affidavit that a man named “Bruce,” whom Joseph Rosenthal mentioned in his statement to the
police and whose residence was pointed out to the police, was involved in one or more robberies
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with Rosenthal, Stanley Battle, and Johnny Ruffin. Although Rosenthal later recanted the
information that he provided to the police about Petitioner, see Dkt. #8, at 25-31 (Rosenthal’s
affidavits dated October 14, 2005, and April 20, 2006), the information that he initially provided
to the police purported to be based on personal knowledge. And the fact that he implicated
himself in his statement to the police lends credibility to his statement. His statement to the
police established probable cause to believe that the person named Bruce, who resided at 2177
Deacon Street, had committed a crime.
Although the police knew only that a man named “Bruce” lived at the place to be
searched, “[s]earch warrants are not directed at persons; they authorize the search of ‘place[s]’
and the seizure of ‘things,’ and as a constitutional matter they need not even name the person
from whom the things will be seized.” Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978)
(citing United States v. Kahn, 415 U.S. 143, 155 n. 15 (1974)).
In conclusion, there was a substantial basis for the magistrate’s decision to issue the
warrant. Consequently, the search warrant was valid, and defense counsel was not ineffective
for failing to challenge it.
3. The Arrest
Petitioner alleges that his arrest was illegal because he was arrested in his home without a
warrant or complaint. “[T]he arrest of a person is ‘quintessentially a seizure,’” and “[i]t is a
‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a
warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 585, 586 (1980).
Thus, absent exigent circumstances, the police may not make a warrantless and nonconsensual
entry into a suspect’s home to make a routine felony arrest. Id. at 576, 590.
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Payton did not hold, however, that an arrest warrant is the exclusive basis upon
which police may arrest a suspect in her home. . . . If anything, Payton suggests
that officers in possession of a search warrant have gone above and beyond what
the Fourth Amendment requires before they may arrest a resident in her home.
Russell v. Harms, 397 F.3d 458, 466 (7th Cir. 2005). Therefore, a police officer “executing a
valid search warrant may arrest a resident found within the permissible scope of that search if the
officers have probable cause to believe that the resident has committed a crime.” Id.; see also
United States v. Winchenbach, 197 F.3d 548, 554 (1st Cir. 1999) (explaining that, if “the police
have gained lawful entry to an individual’s home based on a valid search warrant, they may
arrest the individual before commencing the search, provided that they have probable cause to do
so”).
Stated differently, “[n]o arrest warrant is needed ‘while officers [are] legally on
the premises pursuant to a search warrant.’” Mahlberg v. Mentzer, 968 F.2d 772, 775 (8th Cir.
1992) (quoting Jones v. City of Denver, 854 F.2d 1206, 1209 (10th Cir. 1988)). The reason for
this conclusion is that “the ‘physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.’” Payton, 445 U.S. at 585 (quoting United States
v. United States District Court for the Eastern District of Michigan, Southern Division, 407 U.S.
297, 313 (1972)). “[A]n entry to arrest and an entry to search for and to seize property implicate
the same interest in preserving the privacy and the sanctity of the home, and justify the same
level of constitutional protection.” Id. at 588 (explaining Circuit Judge Leventhal’s conclusion
in Dorman v. United States, 435 F.2d 385 (1970)). “The impartial determination that supports
the issuance of a search warrant justifies a greater intrusion than that supporting the issuance of
an arrest warrant. Thus, once an officer has procured a search warrant, the privacy interests that
led to the imposition of an arrest warrant requirement in Payton have been protected.” Jones,
854 F.2d at 1209.
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The police officers who searched Petitioner’s home had a valid search warrant and
probable cause to believe that Petitioner had committed an armed robbery. Therefore,
Petitioner’s arrest was legal, and defense counsel was not ineffective for failing to challenge
Petitioner’s arrest.
B. The Fourth Amendment Claim
The third claim alleges that Petitioner was arrested in his home without a complaint or
arrest warrant. This claim is based on the Fourth Amendment, as opposed to the Sixth
Amendment, which forms the basis for Petitioner’s first two claims.
“[T]he Constitution does not require that a state prisoner be granted federal habeas
corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was
introduced at his trial” if the State provided an opportunity for “full and fair litigation” of a
Fourth Amendment claim. Stone v. Powell, 428 U.S. 465, 482 (1976). For a “full and fair”
opportunity to have existed, the state must have provided a mechanism for raising the claim and
presentation of the claim must not have been frustrated by a failure of that mechanism. Gilbert
v. Parke, 763 F.2d 821, 823 (6th Cir. 1985) (citing Riley v. Gray, 674 F.2d 522, 526 (6th Cir.
1982)).
Petitioner implies that he did not have a full and fair opportunity to raise his Fourth
Amendment claim in state court. He contends that, when he presented his Fourth Amendment
claim to his appellate attorney in the form of a motion to remand, his attorney returned the
motion and stated that the Michigan Court of Appeals had already scheduled oral arguments and
would not allow the motion.
Petitioner could have raised his Fourth Amendment claim in a motion to suppress
11
evidence before or even during trial. People v. Ferguson, 376 Mich. 90, 93-95 (1965).
Therefore, he had a full and fair opportunity to present his claim to the state court and that is all
Stone v. Powell requires. Jennings v. Rees, 800 F.2d 72, 77 (6th Cir. 1986). It was up to him
and his attorney “to decide what use, if any, is to be made of the opportunity.” Id.
The Court concludes that presentation of Petitioner’s Fourth Amendment claim was not
frustrated by a failure of the state mechanism for raising the claim. Therefore, Petitioner’s
Fourth Amendment claim is not cognizable on habeas corpus review.
C. The Sentence
The fourth habeas claim challenges the scoring of the Michigan sentencing guidelines.
This claim lacks merit because “[a] state court’s alleged misinterpretation of state sentencing
guidelines . . . is a matter of state concern only,” Howard v. White, 76 F. App’x 52, 53 (6th Cir.
2003), and “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers,
497 U.S. 764, 780 (1990). “In conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 68 (1991) (citing 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21
(1975) (per curiam )). Petitioner’s challenge to the trial court’s allegedly improper interpretation
of the state’s sentencing guidelines is not cognizable on federal habeas corpus review because it
is a state law claim. Whitfield v. Martin, 157 F. Supp. 2d 758, 762 (E.D. Mich. 2001) (citing
Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999), and Thomas v. Foltz, 654 F. Supp.
105, 106-07 (E.D. Mich. 1987)).
D. The Preliminary Examination
The fifth habeas claim alleges that the State failed to establish probable cause at the
12
preliminary examination. Petitioner contends that the only evidence introduced against him at
the preliminary examination was his statement to the police in which he supposedly admitted to
committing a robbery on “12-4-93,” which was after the preliminary examination.
The transcript of the testimony in question states that the robbery occurred on 12-4-93.
The robbery actually occurred on 1-24-93. Thus, it appears that a mere error occurred in the
transcript. The first hyphen should have been placed between the one and the two instead of
between the two and the four.
In any event, Petitioner had no constitutional right to a preliminary examination.
Gerstein v. Pugh, 420 U.S. 103, 123, 125 n.26 (1975); Dillard v. Bomar, 342 F.2d 789, 790 (6th
Cir. 1965). Consequently, the state district court’s determination that the evidence was sufficient
to transfer jurisdiction to the state circuit court for trial is not a basis for habeas corpus relief.
See Tegeler v. Renico, 253 F. App’x 521, 525-26 (6th Cir. 2007) (finding no constitutional
violation where the petitioner was convicted of premeditated murder even though the bindover
order did not list that offense as a charge).
E. Appellate Counsel
Petitioner alleges that his appellate attorney failed to appear at oral arguments and that
counsel’s absence amounted to ineffective assistance of counsel because Petitioner needed an
advocate for his Fourth Amendment challenge to the search warrant. To prevail on his claim,
Petitioner must demonstrate that his attorney’s performance was deficient and that the deficient
performance prejudiced the defense. Strickland, 466 U.S. at 687; Smith v. Robbins, 528 U.S.
259, 285 (2000) (stating that the proper standard for evaluating the petitioner’s claim about
appellate counsel is that enunciated in Strickland).
13
“Oral argument on appeal is not required by the Constitution in all cases; nor is it
necessarily essential to a fair hearing. This is particularly true when ‘legal arguments only are
involved, and the material issues have been briefed.’” United States v. Birtle, 792 F.2d 846, 848
(9th Cir. 1986) (citations omitted).
Petitioner’s attorney raised three issues on appeal, and he briefed the issues. Petitioner
has not complained about the quality of his attorney’s brief, and his Fourth Amendment claim
lacks merit. For these reasons, Petitioner was not prejudiced by the submission of his case on
the briefs and by his attorney’s failure to appear at oral arguments. His claim lacks merit.
F. Actual Innocence
The seventh and final claim alleges that Petitioner is actually innocent of the crimes for
which he was convicted. “[A] claim of ‘actual innocence’ is not itself a constitutional claim . . .
,” Herrera v. Collins, 506 U.S. 390, 404 (1993), and the Supreme Court has “described the
threshold for any hypothetical freestanding innocence claim as ‘extraordinarily high.’” House v.
Bell, 547 U.S. 518, 555 (2006) (quoting Herrera, 506 U.S. at 417). A habeas petitioner must
show that, more likely than not, no reasonable juror would have convicted him in light of new
evidence. Ross v. Berghuis, 417 F.3d 552, 556 (6th Cir. 2005) (citing Schlup v. Delo, 513 U.S.
298, 327 (1995)). Stated differently, the petitioner must show that, “in light of the new evidence
. . . , more likely than not any reasonable juror would have reasonable doubt.” House, 547 U.S.
at 538.
The only new evidence that Petitioner has presented to the Court is his own self-serving
affidavit, which states that he is not guilty, and three of his co-defendants’ affidavits. Arlando
Bunn and Johnny Ruffin state in their affidavits that Petitioner was not arrested with them and
14
that a man who was initially arrested as a suspect resembles Petitioner, but was not placed in the
line-up. Joseph Rosenthal states in his affidavit that he did not incriminate Petitioner in his
statement to the police, nor point out Petitioner’s home to the police. Given the strength of the
evidence against Petitioner, including his own admission that he participated in the robbery of
the Boomerang Bar, a reasonable juror in all likelihood would have convicted Petitioner in spite
of the new evidence. Thus, this is not one of those extraordinary cases in which a claim of actual
innocence warrants a new trial.
IV. CONCLUSION
The state courts’ rejection of Petitioner’s claims did not result in decisions that were
contrary to federal law, an unreasonable application of federal law, or an unreasonable
determination of the facts. Accordingly, the petition for a writ of habeas corpus [Dkt. #1] is
DENIED.
V. CERTIFICATE OF APPEALABILITY
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no automatic
right to appeal a district court’s denial or dismissal of the petition. Instead, [the] petitioner must
first seek and obtain a [certificate of appealability.]” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). A certificate of 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). “Where a district court
has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
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Reasonable jurists would not find the Court’s resolution of Petitioner’s claims debatable,
nor conclude that the issues deserve encouragement to proceed further. Accordingly, the Court
DECLINES to issue a certificate of appealability. Petitioner nevertheless may proceed in forma
pauperis on appeal without further authorization because he was permitted to proceed in forma
pauperis in the District Court. Fed. R. App. P. 24(a)(3).
S/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: April 28, 2011
CERTIFICATE OF SERVICE
Copies of this Order were served on the attorneys of record by electronic means and upon
Bruce Howard
233473
G. ROBERT COTTON CORRECTIONAL FACILITY
3500 N. ELM ROAD
JACKSON, MI 49201
by U.S. Mail on April 28, 2011.
S/Denise Goodine
Case Manager
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