Austin v. Sherry

Filing 10

ORDER Denying Certificate of Appealability. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHERMAN AUSTIN,
Petitioner,

Case No. 08-11364
Honorable David M. Lawson

v.
CAROL R. HOWES,
Respondent.
_______________________________________/
ORDER DENYING CERTIFICATE OF APPEALABILTY
Michigan prisoner Sherman Austin filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, challenging his convictions for first-degree murder, Mich. Comp. Laws §
750.316, and possession of a firearm during the commission of a felony, Mich. Comp. Laws §
750.227b. He was found guilty of those charges by a jury in the Wayne County, Michigan circuit
court. The petitioner argued that the trial court improperly recognized a Fifth Amendment privilege
for a defense witness, he was denied his right to present a defense, his right to confrontation was
violated by admission of the victim’s dying declarations, he received ineffective assistance of
counsel, and the prosecutor committed misconduct. The Court found that the petitioner’s claims
lack merit and denied his petition.
Pursuant to Rule 11 of the Rules Governing Section 2254 Proceedings:
The district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. . . . If the court issues a certificate, the court must
state the specific issue or issues that satisfy the showing required by 28 U.S.C. §
2253(c)(2). If the court denies a certificate, a party may not appeal the denial but
may seek a certificate from the court of appeals under Federal Rule of Appellate
Procedure 22.
Rule 11, Rules Governing Section 2254 Proceedings.

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). Courts must either issue a certificate
of appealability indicating which issues satisfy the required showing or provide reasons why such
a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of
Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive a certificate of appealability, “a
petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotes and citations omitted).
The Court now concludes that the petitioner has failed to make a substantial showing that
he was denied his constitutional rights and that reasonable jurists could not debate the correctness
of the Court’s decision. Therefore, the Court will deny a certificate of appealability.
Accordingly, it is ORDERED that a certificate of appealability is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: September 1, 2011

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 on September 1, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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