Austin v. Sherry

Filing 10

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

Download PDF
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 -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?