Simpson v. Romanowski

Filing 14

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

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT SIMPSON,
Petitioner,

Case No. 08-11390
Honorable David M. Lawson

v.
THOMAS BIRKETT,
Respondent.
_______________________________________/
ORDER DENYING CERTIFICATE OF APPEALABILITY
The petitioner, Robert Simpson, filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 that the Court denied as untimely on July 13, 2011. The Court will now consider
whether to issue a certificate of appealability.
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 petitioner sought habeas relief on the grounds that he was denied his Sixth Amendment
right to the effective assistance of appellate counsel where his appellate counsel neglected to argue
the following two claims during his appeal of right: (1) trial counsel was ineffective in failing to

argue that the petitioner’s statement was the product of an illegal detention following an arrest
unsupported by probable cause and (2) trial counsel was ineffective in failing to advance an
alternative theory where the evidence supported a conviction on a lesser included offense. The
Court found that the performance of the petitioner’s appellate counsel fell well within the range of
professionally competent assistance and noted that the petitioner’s underlying ineffective-assistanceof-trial-counsel arguments were meritless. The Court now finds that reasonable jurists could not
debate that this Court correctly dismissed the petitioner’s claims. Therefore, the Court will deny the
petitioner a certificate of appealability.
Accordingly, it is ORDERED that the certificate of appealability is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: July 13, 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 July 13, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL

-2-