Goins v. Birkett

Filing 12

OPINION and ORDER Denying Petition for a Writ of Habeas Corpus, Denying a Certificate of Appealability and Leave to Proceed on Appeal In Forma Pauperis Signed by District Judge Nancy G. Edmunds. (CHem)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DEMOND EARL GOINS, #562452,
Petitioner,
v.

CASE NO. 10-CV-12389
HONORABLE NANCY G. EDMUNDS

THOMAS BIRKETT,
Respondent.
__________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS
I.

Introduction
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner

Demond Earl Goins (“Petitioner”) was convicted of felony murder following a jury trial in the
Wayne County Circuit Court and was sentenced to life imprisonment without the possibility
of parole in 2005. In his petition, he raises claims concerning the sufficiency of the
evidence, the jury instructions, the denial of his right to testify, and the effectiveness of trial
and appellate counsel. For the reasons set forth, the Court finds that Petitioner is not
entitled to habeas relief on his claims and denies the petition for a writ of habeas corpus.
The Court also denies a certificate of appealability and denies leave to proceed in forma
pauperis on appeal.
II.

Facts and Procedural History
Petitioner’s conviction arises from the shooting death of Dietrich Davis outside a

liquor store in Detroit, Michigan on November 14, 2004. Petitioner’s co-defendant, Brian
Doss, was the shooter and Petitioner took the victim’s black leather coat. The Court adopts

the statement of facts provided by defense counsel on direct appeal, to the extent those
facts are consistent with the record. Those facts are as follows:
Elaine Goolsby testified that Dietrich Davis was her son and that Hoover
Market is six blocks from her home. On November 14. 2004. he came to visit
her for her birthday. Later, he went to the store to get her a beer. He was
wearing a fur lined black leather coat and drove an orange Chevrolet
Avalanche. She later received a call from the hospital informing her that her
son had been shot. When she arrived, he was already deceased. She
identified his body at the morgue. About three or four days later, her son's
death was the subject of a television newscast, providing his name, the
location of his death and the fact that his coat was taken. (T2 24-30).
Detroit Police Officer Adriane Ellis stated that at 8:30 p.m., November 14,
2004, she was working with her partner, Officer Hamood. They were at
Sturgis and Beland, which is four or five blocks from Hoover and State Fair.
She heard two shots fired to the north. About a minute later, she observed
a Cadillac traveling at a very high rate of speed southbound on Beland. The
car was burgundy and contained three or four occupants. As they were
leaving their location, they were flagged down at East State Fair and Hoover.
Based upon information she received from that person, they proceeded to
the Hoover Market, where she observed a black man lying in front of am
orange Chevrolet Avalanche, She received the run from dispatch as she
arrived. Medics were summoned and the scene was preserved. She
reviewed the store security video tape, which recorded the presence of the
truck and a burgundy car. (T2 31-61).
Darryal Brown stated that he knows Appellant, Doss and [Otis] Clark. At 7:30
or 8:00 p.m., November 14, 2004, Doss and Appellant arrived at his home in
a burgundy Ford Taurus owned by Doss' girlfriend, Carol. They purchased
beer and liquor. which they drank as they went to pick up Otis Clark from
work. After Clark was on board, they stopped at another store, where Clark
purchased more alcohol. They rode around drinking before stopping at a
store on Hoover. All four exited the vehicle. He and Clark remained in the
area of the car. Appellant and Doss approached the store. He heard shots,
looked up and saw Appellant and Doss return to the car from the area of a
truck and the legs of a person laying in front of the truck. Appellant held a
coat. Doss had a .38 in his hand. When they were back in the car, Clark told
Doss "Don't be putting me in no stuff like that." Doss replied "He's straight,"
indicating that he had only wounded the man. Afterwards, they went to a gas
station. Brown went in to purchase gum. When he returned to the car, he
heard Doss and Appellant argue over the coat. According to Brown,
Appellant sought to keep the coat because he took it. Doss thought he
should keep it because he shot the man. Doss ended up with the coat. Doss
also complained that the money he had taken from the man was only enough
to purchase beer and cigarettes. From there, Clark and then Brown were
2

driven home. Prior to the shooting, Brown never heard any talk of plans to
shoot anybody or to commit a robbery. (T2 62-85, 100-117).
Detroit Police Sergeant Eddie Croxton was dispatched to the 19934 Hoover
homicide scene. He confiscated a security videotape, took it to police
headquarters and turned it over to Sergeant Jenkins, the officer in charge of
the case. (T2 86-89).
Detroit Police Officer Jamal Hamood stated that at 8:30 p.m., November 14,
2004, he was on duty with his partner, Adriane Ellis. They were on patrol at
Sturgis and Beland when he heard two or three gunshots from the north. As
they headed north on Beland, he saw a burgundy Cadillac with four
occupants pass them going southbound at a high rate of speed. As they
continued north, they received a 911 call reporting shots fired in the area of
State Fair and Hoover and were flagged down by a citizen who directed them
to the market. At the scene, he observed a man laying on his back with what
appeared to be gunshot wounds to his chest. He detected a slight pulse and
contacted EMS. Inside the store, he spoke with the owner and learned that
video surveillance had been in effect. He rewound and reviewed the tape. (T2
90-94).
Detroit Police Sergeant John Jenkins stated that he was the officer in charge
of the case, and that he received the store surveillance video from Sergeant
Croxton. He submitted the video to the State Police to make a copy and still
photographs. (T2 95-98).
Otis Lee Clark testified on November 14. 2004, he knew Doss and Appellant
from his neighborhood. He also knew that Doss drove his girlfriend Carol's
red Ford Taurus. Clark worked that afternoon at a car wash on Eight Mile
Road and Gratiot. At 7:15 or 7:20 p.m., Doss, Appellant and Brown picked
him up from work in the Taurus. They were drinking alcohol. Clark got in the
car. They went to a liquor store. Clark purchased more alcohol. They
continued to drink and drive around, eventually parking at a liquor store on
Hoover at State Fair. When an orange Chevrolet Avalanche entered the lot,
Doss looked over to Appellant ans said "This the one." After the truck parked,
Doss and Appellant exited the car and approached the truck. As Clark
approached the store, he observed Doss lift what appeared to be a gun, say
to the man "You know what I want" and then shoot him. The man fell. Doss
shot the man again. Appellant ran to the car with the man's coat. Doss
appeared to check the man's pockets before returning to the car. He drove
to a gas station, where Appellant asked Doss "what did we get off the guy?"
Doss replied that he got only $5.00 or $6.00. Doss then gave Appellant the
money in exchange for the coat. Doss then drove Clark home. During the
time that he was in the car. Clark never heard Doss indicate that he intended
to commit a robbery. A week later, he reported the shooting to Crime
Stoppers. Approximately three months later, he was contacted by Detroit
Police Detective Dale Collins. (T2 118-162).
3

Detroit Police Officer Ryan May arrived at the scene with his partner, Officer
Anthony Murray. Officers Ellis and Hamood were already present, along with
a couple of homicide sergeants. After checking the victim for a pulse, he
spoke with the store owner and stood by the truck to preserve the scene as
the body was removed and evidence technicians arrived. (T2 164-181).
Assistant Wayne County Medical Examiner Boguslaw Pietak was qualified
as an expert in forensic pathology. He stated that on November 15, 2004, he
performed an autopsy on Dietrich Davis. External examination found two
gunshot wounds to the left chest. One proceeded through the fourth
intercostal space, perforated the heart and left lung and fractured the sixth
left rib into the back muscles, where a bullet was recovered, The other
entered the eleventh intercostal space, perforated the diaphragm and
abdominal cavities, lacerated the left kidney, fractured the first lumbar
vertebra and traveled into the spinal canal, where a bullet was recovered.
Toxicology was positive for a .06 alcohol level but negative for all other tested
drugs and medications. Dr. Pietak determined the cause of death as multiple
gunshot wounds and the manner of death as homicide. (T3 5-50).
Hani Yatoma stated that at 8:45 p.m. November 14.2004 he was working at
the Hoover Market when he heard a shot. Four or five seconds later, he
heard another shot. People entered the store and reported the shooting. He
called 911. Police arrived five to ten minutes later. They monitored the store
security video. He provided them with the surveillance tape. (T3 51-61).
Carol Cruz stated that she was dating Doss, that she knew Appellant and
Clark as friends of Doss, and that she owned a 1995 Ford Taurus which she
permitted Doss to drive. Cruz stated that on November 14, 2004, she was
sick, and did not recall Doss using her car that day. He did not have a set of
keys to her car, but it was well known in her neighborhood that her car would
start without a key. She stated that she did not see Doss with a handgun or
a fur lined leather coat. (T3 62-71).
Detroit Police Officer Anthony Murray and his partner, Officer Ryan May,
were on patrol. Between 8:30 and 9:00 p.m. they were called to the Hoover
Market on a report of a shooting. When they arrived, Officers Ellis and
Hamood were already present. After helping the complainant into the
ambulance, he entered the store, spoke with the store owner and viewed the
security tape to get a description of the cars and the subject and to see what
took place. He reported that the incident involved three black males between
the ages of 20 and 27 and a burgundy Cadillac. (T3 72-100).
Sergeant Jenkins resumed his testimony, stating that he also collected two
spent bullets recovered from the decedent by the medical examiner, which
he delivered the rounds to the Firearms Unit for laboratory analysis. He also
placed in evidence a $20.00 bill, jewelry, clothing and a 2003 Chevrolet
4

Avalanche. He stated that he found it strange that money and jewelry were
located on the person of a person alleged to be the victim of a robbery. (T3
102-139).
Detroit Police Officer Stephanie Sparks is an evidence technician. She drew
a sketch and took photographs the scene, which she used to describe the
scene to the jury. She also collected a cellular telephone found under the
truck. (T3 140-164).
Detroit Police Officer Dattahn Wade stated that he and his partner, Officer
Keith McCloud, were dispatched to St. John's Hospital to obtain a chart and
condition for the person just shot. He was advised that the complainant had
been pronounced dead on arrival. Wade took possession of Davis' boots,
earring, $20.00 bill, watch, white tank top, black jeans and brown belt, which
he transported to Homicide. (T3 165-180).
Detroit Police Officer David Pauch was qualified as an expert in firearms
identification and tool mark examinations. He received two spent bullets from
Sergeant Jenkins, which he classified as .38 special caliber and determined
that both were fired from the same weapon. (T3 181-187).
Outside the presence of the Doss jury, Detroit Police Investigator James
Fisher testified that on March 13, 2005, he came in contact with Appellant,
who was in custody, and advised Appellant of the purpose of the interview
and his constitutional rights. Appellant then stated that he went to a store with
Brian Doss, Otis Clark in Doss' girlfriend's burgundy Ford Taurus. They were
drinking in the parking lot for half an hour when Doss stated that he was
going back into the store to purchase more alcohol. He and Doss exited the
car. Doss approached a man exiting a truck and said "What's up. nigga?" as
though he knew the man. He then pulled a black short barreled .38 revolver,
said "Nigga, you know what I want." He shot the man twice and ordered
Appellant to take the man's black leather coat. When they returned to the car,
Appellant gave Doss the coat. Doss then drove him home. He did not report
the incident because he had heard that Doss had threatened to kill anyone
who said anything. The Doss jury then returned to the courtroom. Fisher
concluded Appellant's statement, which provided "I knew it was a robbery
when Brian shot him, but I didn't know before that." (T3 188-200).
***
In the presence of both juries, Detroit Police Sergeant Eddie Croxton testified
on November 14, 2004, he was called to the shooting scene to investigate
the homicide. He arrived with Officer Kibler, conferred with Officers Hamood
and Ellis and canvassed the area. Inside the store, he spoke with two clerks,
became aware of and viewed the surveillance video. He confiscated the
video and received information about the victim from Officer Wade, who
knew the man personally. An evidence technician was called to collect

5

evidence. The victim's truck was impounded. Based upon his review of the
tape, Croxton surmised that the shooting was "a hit.'" (T4 145-191).
Detroit Police Investigator Dale Collins stated that he received from the
complainant's brother information regarding a person who was present during
the shooting. He met with Otis Clark, and later had contact with Darryal
Brown, Appellant and Doss. He received statements from Clark, Brown and
James Klein. (T4 193-205).
***
Following [the] waiver of remaining witnesses, (T3 201-202), the People
rested. (T4 208).
***
Appellant's motion for directed verdict was heard and denied. (T5 5-9). The
Defense rested.
App. Brf., pp. 2-8 (testimony taken outside the presence of Petitioner’s jury omitted). At the
close of trial, the jury convicted Petitioner of felony murder. The trial court subsequently
sentenced him to life imprisonment without the possibility of parole.
Following sentencing, Petitioner filed an appeal of right with the Michigan Court of
Appeals asserting that the prosecution presented insufficient evidence to support his felony
murder conviction. The court denied relief and affirmed Petitioner’s conviction. People v.
Goins, No. 266830, 2007 WL 1094422 (Mich. Ct. App. April 12, 2007) (unpublished).
Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which
was denied in a standard order. People v. Goins, 480 Mich. 859, 737 N.W.2d 748 (2007).
In 2008, Petitioner filed an initial petition for a writ of habeas corpus in federal court
raising several claims of error. The Court summarily dismissed that petition without
prejudice for failure to fully exhaust state court remedies. Goins v. Michigan Dep’t of
Corrections, No. 08-CV-10520 (E.D. Mich. Feb. 12, 2008).
Petitioner then returned to state court and filed a motion for relief from judgment
raising the same claims now presented on habeas review. The trial court denied the

6

motion, ruling that the insufficient evidence claim had been denied on direct appeal and
further review was barred by Michigan Court Rule 6.508(D)(2), that Petitioner had failed to
provide authority for his other claims, and that he had failed to establish cause and
prejudice under Michigan Court Rule 6.508(D)(3) for not raising those claims on direct
appeal of his conviction. People v. Goins, No. 05-003139-02 (Wayne Co. Cir. Ct. Sept. 12,
2008) (unpublished). Petitioner filed a delayed application for leave to appeal with the
Michigan Court of Appeals, which was denied for failure “to meet the burden of establishing
entitlement to relief under MCR 6.508(D).” People v. Goins, No. 291096 (Mich. Ct. App.
Sept. 3, 2009) (unpublished). Petitioner filed an application for leave to appeal with the
Michigan Supreme Court, which was similarly denied. People v. Goins, 485 Mich. 1126,
780 N.W.2d 261 (2010).
Petitioner thereafter instituted this habeas action, raising the following claims:
I.

The evidence was insufficient to support his felony murder conviction.

II.

The jury instructions were erroneous and denied him a fair trial.

III.

He was denied the right to testify.

IV.

Trial counsel was ineffective for failing to prepare him to testify, for
failing to raise a duress defense, for failing to challenge the jury
instructions, and for failing to properly cross-examine witnesses and
argue his case.

V.

Appellate counsel was ineffective for failing to raise issues on direct
appeal.

Respondent has filed an answer to the petition contending that it should be denied because
the claims are barred by procedural default and lack merit. Petitioner has filed a reply to
that answer.

7

III.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this

case because Petitioner filed his petition after the AEDPA’s effective date. See Lindh v.
Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:
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.

28 U.S.C. §2254(d) (1996).
A state court’s decision is contrary to clearly established law if it “‘applies a rule that
contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set
of facts that are materially indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540
U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06
(2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas
court to ‘grant the writ if the state court identifies the correct governing legal principle from
[the Supreme] Court but unreasonably applies that principle to the facts of petitioner’s
case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413);
see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state court’s
application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision must

8

have been more than incorrect or erroneous. The state court’s application must have
been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations omitted); see also
Williams, 529 U.S. at 409. 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, _ U.S. _, 130 S. Ct. 1855, 1862 (2010) (quoting
Lindh, 521 U.S. at 333, n. 7); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
The Supreme Court has recently held that “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) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The Supreme Court 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)). 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. Thus, in order to obtain habeas relief in federal court, a state prisoner must
show that the state court’s rejection of his claim “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id.
Section 2254(d)(1) limits a federal habeas court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision. See
Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)
9

(noting that the Supreme Court “has held on numerous occasions that it is not ‘an
unreasonable application of clearly established Federal law’ for a state court to decline to
apply a specific legal rule that has not been squarely established by this Court”) (quoting
Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer v. Andrade, 538
U.S. 63, 71-72 (2003). Section 2254(d) “does not require a state court to give reasons
before its decision can be deemed to have been ‘adjudicated on the merits.’” Harrington,
131 S. Ct. at 785. Furthermore, it “does not require citation of [Supreme Court] cases –
indeed, it does not even require awareness of [Supreme Court] cases, so long as neither
the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer,
537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. While the requirements of “clearly
established law” are to be determined solely by Supreme Court precedent, the decisions
of lower federal courts may be useful in assessing the reasonableness of the state court’s
resolution of an issue. See Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing
Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp.
354, 359 (E.D. Mich. 2002).
A state court’s factual determinations are presumed correct on federal habeas
review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption only
with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.
1998). Moreover, habeas review is “limited to the record that was before the state court.”
Cullen v. Pinholster, _ U.S. _, 131 S. Ct. 1388, 1398 (2011).
V.

Discussion
A.

Insufficient Evidence Claim

Petitioner asserts that he is entitled to habeas relief because the prosecution
presented insufficient evidence to support his conviction for felony murder as an aider and
10

abettor. The Federal 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). The standard of review
for a sufficiency of the evidence challenge must focus on 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.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). “The Jackson standard must
be applied ‘with explicit reference to the substantive elements of the criminal offense as
defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351 (6th Cir. 2006) (quoting
Jackson, 443 U.S. at 324 n. 16).
A federal court must view this standard through the framework of 28 U.S.C. §
2254(d). See Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002).

Thus, under the

AEDPA, challenges to the sufficiency of the evidence “must survive two layers of
deference to groups who might view facts differently” than a reviewing court on habeas
review – the factfinder at trial and the state court on appellate review – as long as those
determinations are reasonable. See Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).
“A reviewing court does not re-weigh the evidence or re-determine the credibility of the
witnesses whose demeanor has been observed by the trial court.”

Matthews v.

Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Lonberger, 459 U.S. 422,
434 (1983)). Accordingly, “[t]he mere existence of sufficient evidence to convict ... defeats
a petitioner’s claim.” Matthews, 319 F.3d at 788-89.
Under Michigan law, a person who commits murder during the perpetration of a
felony is guilty of first-degree murder. MICH. COMP. LAWS § 750.316. The elements of
felony murder are: (1) the killing of a human being, (2) with the intent to kill, to do great
11

bodily harm, or to create a very high risk of death or great bodily harm with knowledge that
death or great bodily harm was the probable result [i.e., malice], (3) while committing,
attempting to commit, or assisting in the commission of any of the felonies specifically
enumerated in the statute. Matthews v. Abramajtys, 319 F.3d 780, 789 (6th Cir. 2003)
(citing People v. Carines, 460 Mich. 750, 759, 597 N.W.2d 130 (1999)). The facts and
circumstances of the killing, including the use of a deadly weapon, may give rise to an
inference of malice. Id. Direct or circumstantial evidence and reasonable inferences
arising from that evidence may constitute satisfactory proof of the elements of an offense.
People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993).
To convict a defendant under an aiding and abetting theory, the prosecution must
establish that the crime was committed by the defendant or some other person, that the
defendant performed acts or gave encouragement which aided or assisted in the
commission of the crime, and that the defendant either intended to commit the crime or
knew that the principal intended to commit the crime at the time he gave the aid or
encouragement. Carines, 460 Mich. at 759; see also People v. Moore, 470 Mich. 56,
67-68, 679 N.W2.d 41 (2004). An aider and abettor’s state of mind may be inferred from
the circumstances. Carines, 460 Mich. at 759.
Applying the Jackson standard, the Michigan Court of Appeals ruled that the
prosecution presented sufficient evidence to support Petitioner’s felony murder conviction.
The court explained, in relevant part:
The evidence showed that defendant Doss was armed with a handgun and
shot the victim. Defendant Goins admitted to taking the victim's jacket after
he was shot. Defendant Goins argues that even if the jury believed that he
willingly took the victim's coat, the evidence did not create a fair inference
that he knew, before the larceny, that defendant Doss was armed and
intended to commit a robbery, or that he participated in the offense with the
requisite malice for felony murder. However, the evidence contradicts
12

defendant's argument. Defendants Doss and Goins were in a vehicle in a
parking lot with Otis Clark and Darryal Brown before the shooting. According
to Clark, when the victim drove his vehicle into the parking lot, defendant
Doss told defendant Goins, “This is the one.” Afterward, defendants Doss
and Goins both exited the vehicle and approached the victim. This evidence
was sufficient to support an inference that defendant Goins was aware that
defendant Doss had targeted the victim and knowingly assisted defendant
Doss in a plan to rob him.
Furthermore, although defendant Goins indicated in his police statement
that defendant Doss was wearing a coat, suggesting that any gun he had
was hidden in the coat, Clark testified that defendant Doss was not wearing
a jacket, and a videotape of the crime taken by a store security camera
verified that defendant Doss was only wearing a t-shirt and no jacket.
Viewed most favorably to the prosecution, this evidence allowed the jury to
infer that defendant Doss did not conceal the handgun as defendant Goins
implied, so defendant Goins assisted defendant Doss knowing he was
armed.
Additionally, after the crime was committed, the group drove to a gas station
and, according to Clark, defendant Goins asked defendant Doss what they
had obtained from the victim. Defendant Goins wanted to keep the victim's
coat, but then agreed to give it to defendant Doss, but defendant Goins kept
some money that was taken from the victim. Viewed in a light most
favorable to the prosecution, the evidence was sufficient to enable the jury
to find beyond a reasonable doubt that defendants Doss and Goins were
acting together and that defendant Goins was acting with wanton and willful
disregard of the likelihood that their actions would cause death or great
bodily harm to the victim.
Goins, 2007 WL 1094422 at *3-4.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The trial testimony, viewed in a light
favorable to the prosecution, established that Petitioner aided and abetted the codefendant in committing the crime. The testimony and the surveillance video established
that he knew that his co-defendant was armed and intended to rob the victim, that he and
the co-defendant exited their vehicle and approached the victim together, that he and the
co-defendant argued over and split the proceeds from the crime, and that he possessed
the requisite intent to support his conviction for aiding and abetting felony murder.
13

Petitioner essentially challenges the inferences the jury drew from the testimony at
trial. However, it is the job of the fact-finder at trial, not a federal habeas court, to resolve
evidentiary conflicts. See Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618
(6th Cir. 2002); Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A federal habeas
corpus court faced with a record of historical facts that supports conflicting inferences must
presume-even if it does not affirmatively appear in the record-that the trier of fact resolved
any such conflicts in favor of the prosecution, and must defer to that resolution.”). The
jury’s verdict and the Michigan Court of Appeals’ decision affirming that verdict were
reasonable. The trial testimony and evidence, viewed in a light most favorable to the
prosecution, established Petitioner’s guilt of felony murder beyond a reasonable doubt.
More importantly, for purposes of federal habeas review, this Court cannot say that the
Michigan Court of Appeals’ ruling to that effect was unreasonable. Habeas relief is not
warranted on this claim.
B.

Procedural Default of Claims

Respondent contends that Petitioner’s claims concerning the jury instructions, the
right to testify, and the effectiveness of defense counsel are barred by procedural default
because Petitioner first raised those claims on post-conviction collateral review and the
state courts denied relief pursuant to Michigan Court Rule 6.508(D).
Federal habeas relief is precluded on claims that a petitioner has not presented to
the state courts in accordance with the state’s procedural rules. See Wainwright v. Sykes,
433 U.S. 72, 85-87 (1977). The doctrine of procedural default is applicable when a
petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the
state courts, and the procedural rule is “adequate and independent.” White v. Mitchell,
431 F.3d 517, 524 (6th Cir. 2006); see also Howard v. Bouchard, 405 F.3d 459, 477 (6th
14

Cir. 2005); Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). The last explained
state court judgment should be used to make this determination. See Ylst v. Nunnemaker,
501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial,
it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.
Petitioner exhausted these claims in the state courts in his motion for relief from
judgment and related appeals. The Michigan Supreme Court denied relief pursuant to
Michigan Court Rule 6.508(D), which provides, in part, that a court may not grant relief to
a defendant if the motion for relief from judgment alleges grounds for relief which could
have been raised on direct appeal, absent a showing of good cause for the failure to raise
such grounds previously and actual prejudice resulting therefrom. See MICH. CT. R.
6.508(D)(3). The United States Court of Appeals for the Sixth Circuit has held that the
form order used by the Michigan Supreme Court to deny leave to appeal in this case is
unexplained because its citation to Michigan Court Rule 6.508(D) is ambiguous as to
whether it refers to a procedural default or a rejection on the merits. See Guilmette v.
Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc). Consequently, under Guilmette,
the Court must “look through” the unexplained order of the Michigan Supreme Court to the
state trial court’s decision to determine the basis for the denial of state post-conviction
relief.
In this case, the state trial court clearly denied relief on procedural grounds. The
trial court cited Michigan Court Rule 6.508(D) in addressing these claims, concluded that
Petitioner had not shown cause or actual prejudice under Michigan Court Rule
6.508(D)(3), and noted that his rights had been protected under the state and federal
constitutions. Accordingly, Petitioner’s claims concerning the jury instructions, the right
to testify, and the effectiveness of trial counsel are procedurally defaulted.
15

A state prisoner who fails to comply with a state’s procedural rules waives the right
to federal habeas review absent a showing of cause for noncompliance and actual
prejudice resulting from the alleged constitutional violation, or a showing of a fundamental
miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Nields
v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir.
1996).
Petitioner asserts ineffective assistance of appellate counsel as cause to excuse
his procedural default.

In order to establish ineffective assistance of counsel, the

petitioner must show “that counsel’s performance was deficient ... [and] that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984);
O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In determining whether counsel’s
performance was deficient,
[t]he court must … determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally
competent assistance .... At the same time, the court should recognize that
counsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional
judgment.
Strickland, 466 U.S. at 690. Judicial scrutiny of counsel’s performance is thus “highly
deferential.” Id. at 689. The defense is prejudiced only if “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
It is well-established that a criminal defendant does not have a constitutional right
to have appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes,
463 U.S. 745, 751 (1983). The Supreme Court has explained:
For judges to second-guess reasonable professional judgments and impose
on appointed counsel a duty to raise every “colorable” claim suggested by
16

a client would disserve the … goal of vigorous and effective advocacy ….
Nothing in the Constitution or our interpretation of that document requires
such a standard.
Id. at 754.
Strategic and tactical choices regarding which issues to pursue on appeal are
“properly left to the sound professional judgment of counsel.” United States v. Perry, 908
F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate advocacy” is the
“process of ‘winnowing out weaker arguments on appeal and focusing on’ those more
likely to prevail.” See Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463
U.S. at 751-52). “Generally, only when ignored issues are clearly stronger than those
presented will the presumption of effective assistance of appellate counsel be overcome.”
Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate counsel may deliver
deficient performance and prejudice a defendant by omitting a “dead-bang winner,”
defined as an issue which was obvious from the trial record and would have resulted in
reversal on appeal. See Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).
Petitioner has failed to show that by omitting the claims presented in his motion for
relief from judgment, appellate counsel’s performance fell outside the wide range of
professionally competent assistance. Appellate counsel presented legitimate arguments
on direct appeal concerning the sufficiency of the evidence to support Petitioner’s felony
murder conviction. Such a claim, although ultimately unsuccessful, was substantial. The
claims presented in the motion for relief from judgment are not obviously stronger than the
claim raised by appellate counsel on direct appeal.

Petitioner has thus failed to

demonstrate that appellate counsel was ineffective so as to establish cause to excuse his
procedural default.

17

The Court need not address the issue of prejudice when a petitioner fails to
establish cause to excuse a procedural default. Smith, 477 U.S. at 533; Long v. McKeen,
722 F.2d 286, 289 (6th Cir. 1983). Nonetheless, the Court notes that it would find that the
defaulted claims lack merit for the reasons stated by Respondent in the answer to the
petition, see Answer, pp. 6-9, and as further discussed infra.
Lastly, Petitioner has not demonstrated that a fundamental miscarriage of justice
has occurred. The miscarriage of justice exception requires a showing that a constitutional
violation probably resulted in the conviction of one who is actually innocent. Murray v.
Carrier, 477 U.S. 478, 479-80 (1986). To be credible, such a claim requires a petitioner
to provide new, reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S.
298, 324 (1995). Moreover, actual innocence means factual innocence, not mere legal
insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). Petitioner has made
no such showing. These claims are thus barred by procedural default, lack merit, and do
not warrant habeas relief.
C.

Merits of Defaulted Claims
1.

Jury Instruction Claim

Petitioner asserts that the trial court erred in instructing the jury by failing to make
clear that he could not be guilty of felony murder if he only assisted the co-defendant after
the shooting. Alleged trial court errors in the application of state law are generally not
cognizable as grounds for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 6768 (1991) (“it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions”); Serra v. Michigan Dept. of Corrections, 4 F.3d
1348, 1354 (6th Cir. 1993). Thus, in order for habeas relief to be warranted on the basis
of incorrect jury instructions, a petitioner must show more than the instructions are
18

undesirable, erroneous or universally condemned. Rather, taken as a whole, they must
be so infirm that they rendered the trial fundamentally unfair. Estelle, 502 U.S. at 72;
Henderson v. Kibbe, 431 U.S. 145, 154 (1977). If an instruction is ambiguous and not
necessarily erroneous, it violates the Constitution only if there is a reasonable likelihood
that the jury misapplied the instruction. See Binder v. Stegall, 198 F.3d 177, 179 (6th Cir.
1999). A jury instruction is not to be judged in artificial isolation, but must be considered
in the context of the instructions as a whole and the trial court record. See Grant v. Rivers,
920 F. Supp. 769, 784 (E.D. Mich. 1996).
The failure to give an instruction supported by the evidence does not automatically
warrant habeas relief – the failure to instruct must have rendered the trial fundamentally
unfair. Maes v. Thomas, 46 F.3d 979, 984-85 (10th Cir. 1995); Nickerson v. Lee, 971 F.2d
1125, 1137 (4th Cir. 1995). The failure to instruct is not unfair when the instructions as a
whole adequately present the defense theory to the jury. Duckett v. Godinez, 67 F.3d 734,
743 (9th Cir. 1995). “An omission, or an incomplete instruction, is less likely to be
prejudicial than a misstatement of the law.” Henderson, 431 U.S. at 155. State law
instructional errors rarely form the basis for federal habeas corpus relief. Estelle, 502 U.S.
at 71-72.
The jury instructions in this case were not erroneous, confusing, or unconstitutional.
The trial court clearly instructed the jury about the elements of felony murder, the concepts
of aiding and abetting and mere presence, and other relevant matters. Petitioner’s claim
that the trial court did not inform the jurors that the prosecution must prove that he aided
and abetted the co-defendant before or during the crime is belied by the record. The court
specifically instructed the jury as follows:

19

To prove this charge, the prosecution must prove each of the elements
beyond a reasonable doubt. First, that the alleged crime was actually
committed either by the defendant, Mr. Goins, or someone else; and again,
it does not matter whether anyone else has been convicted of that crime.
Second, that before or during the crime, the defendant did something to
assist in the commission of that crime. And third, that the defendant must
have intended the commission of that crime alleged or must have known
that the other person intended its commission at the time of the giving of the
assistance. It does not matter how much help, advice, or encouragement the
defendant, Mr. Goins, gave. However, you must decide whether the
defendant intended to help another commit the crime and whether his help,
advice, or encouragement actually did help, advice, or encourage the crime.
Even if the defendant, Mr. Goins, knew that the alleged crime was being
planned or being committed, the mere fact that he was present when it was
committed is not enough to prove that he assisted in the commission of that
crime.
10/11/05 Trial Tr., p. 50 (emphasis added). The trial court’s instructions were sufficient
to satisfy due process. Habeas relief is not warranted on this claim.
2.

Denial of Right to Testify Claim

Petitioner next asserts that he was denied the right to testify at trial.

It is

well-established that a criminal defendant has a constitutional right to testify on his own
behalf. See Rock v. Arkansas, 483 U.S. 44, 52-53 & n. 10 (1987); Neuman v. Rivers, 125
F.3d 315, 318 (6th Cir.1997). “However, it has been held that a ‘barebones assertion by
a defendant, [even one] made under oath, is insufficient to require a hearing or other
action on his claim that his right to testify in his own defense was denied him. It just is too
facile a tactic to be allowed to succeed. Some greater particularity is necessary ... to give
the claim sufficient credibility to warrant a further investment of judicial resources in
determining the truth of the claim.’” McCoy v. Bock, No. 01-10052, 2003 WL 22994984,
*11 (E.D. Mich. Dec. 17, 2003) (quoting Underwood v. Clark, 939 F.2d 473, 476 (7th Cir.
1991), and citing Chang v. United States, 250 F.3d 79, 84-85 (2d Cir. 2001); Sciliano v.
Vose, 834 F.2d 29, 31 (1st Cir. 1987)). As the Sixth Circuit has explained:

20

Indeed, ‘[b]arring any statements or actions from the defendant indicating
disagreement with counsel or the desire to testify, the trial court is neither
required to sua sponte address a silent defendant and inquire whether the
defendant knowingly and intentionally waived the right to testify, nor ensure
that the defendant has waived the right on the record.’ To the contrary:
A defendant who wants to testify can reject defense counsel's
advice to the contrary by insisting on testifying,
communicating with the trial court, or discharging counsel. At
base, a defendant must alert the trial court that he desires to
testify or that there is a disagreement with defense counsel
regarding whether he should take the stand. When a
defendant does not alert the trial court of a disagreement,
waiver of the right to testify may be inferred from the
defendant's conduct.
Waiver is presumed from the
defendant's failure to testify or notify the trial court of the
desire to do so.
Hodge v. Haeberlin, 579 F.3d 627, 639-40 (6th Cir. 2009) (citations omitted) (quoting
United States v. Webber, 208 F.3d 545, 551 (6th Cir. 2000)).
In this case, Petitioner makes only a bald assertion that trial counsel precluded him
from testifying at trial. Petitioner does not present any evidence, other than his own
assertions, which shows that he was misled or believed he was not allowed to testify.
“[D]efense counsel’s role is to advise the defendant whether or not the defendant should
take the stand, but it is for the defendant, ultimately, to decide.” Webber, 208 F.3d at
550-51. As noted, a defendant must “alert the trial court” that he desires to testify or that
there is a disagreement with defense counsel regarding whether he should take the stand.
If the defendant fails to do so, waiver is presumed. Id. at 551. Petitioner did not attempt
to testify at trial nor notify the court of his desire to do so. Waiver of the right to testify is
therefore presumed – and Petitioner has not rebutted the presumption. Habeas relief is
not warranted on this claim.
3.

Ineffective Assistance of Trial Counsel Claims

21

Petitioner also asserts that he is entitled to habeas relief because trial counsel was
ineffective for failing prepare him to testify, for failing to raise a duress defense, for failing
to challenge the jury instructions, and for failing to sufficiently cross-examine witnesses
and argue his case.

As noted, Supreme Court has set forth a two-prong test for

determining whether a habeas petitioner has received the ineffective assistance of
counsel. First, a petitioner must prove that counsel’s performance was deficient. This
requires a showing that counsel made errors so serious that he or she was not functioning
as counsel as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second,
the petitioner must establish that counsel’s deficient performance prejudiced the defense.
Counsel’s errors must have been so serious that they deprived the petitioner of a fair trial
or appeal. Id.
As to the performance prong, a petitioner must identify acts that were “outside the
wide range of professionally competent assistance” in order to prove deficient
performance. Id. at 690. The reviewing court’s scrutiny of counsel’s performance is highly
deferential. Id. at 689. Counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment. Id. at 690. The petitioner bears the burden of overcoming the presumption that
the challenged actions were sound trial strategy. Id. at 689.
To satisfy the prejudice prong under Strickland, a petitioner must show that “there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. A reasonable probability is one that
is sufficient to undermine confidence in the outcome. Id. “On balance, the benchmark
for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined

22

the proper functioning of the adversarial process that the [proceeding] cannot be relied on
as having produced a just result.” Strickland, 466 U.S. at 686.
The Supreme Court has recently confirmed that a federal court’s consideration of
ineffective assistance of counsel claims arising from state criminal proceedings is quite
limited on habeas review due to the deference accorded trial attorneys and state appellate
courts reviewing their performance. “The standards created by Strickland and § 2254(d)
are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”
Harrington, 131 S. Ct. at 788 (internal and end citations omitted). “When § 2254(d)
applies, the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard. Id. at 788.
Petitioner asserts that counsel was ineffective for failing prepare him to testify, for
failing to raise a duress defense, for failing to challenge the jury instructions, and for failing
to sufficiently cross-examine witnesses and argue his case. Petitioner, however, has
failed to provide a sufficient factual or legal basis for these claims. Conclusory allegations,
without evidentiary support, do not provide a basis for habeas relief. See Cross v. Stovall,
238 F. App’x 32, 39-40 (6th Cir. 2007); Prince v. Straub, 78 F. App’x 440, 442 (6th Cir.
2003); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998) (conclusory allegations of
ineffective assistance of counsel do not justify federal habeas relief); see also Washington
v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions and conclusory allegations
do not provide sufficient basis for an evidentiary hearing).
Moreover, Petitioner has failed to establish that trial counsel erred and/or that he
was prejudiced by counsel’s performance. First, Petitioner has not shown that counsel
erred in failing to prepare him to testify (or advising him not to testify) at trial. When a
23

tactical decision is made by an attorney that a defendant should not testify, the
defendant’s assent is presumed. Gonzales v. Elo, 233 F.3d 348, 357 (6th Cir. 2000). On
habeas review, a federal court maintains “a strong presumption that trial counsel adhered
to the requirements of professional conduct and left the final decision about whether to
testify with the client.” Hodge, 579 F.3d at 639 (internal citation omitted). To overcome
this presumption, a habeas petitioner must present record evidence that he somehow
alerted the trial court about his desire to testify. Id. The record in this case is devoid of
such evidence.

Petitioner has not overcome the presumption that he agreed with

counsel’s advice not to testify, nor has he shown that counsel’s advice not to testify was
unreasonable. See Gonzales, 233 F.3d at 357. Petitioner has also failed to establish that
he was prejudiced by counsel’s conduct in this regard. He has not provided details of his
proposed testimony nor shown that his testimony would have benefitted his defense. See
Hodge, 579 F.3d at 641 (defendant did not demonstrate prejudice arising from failure to
testify at murder trial where he did not provide the substance of his testimony and merely
speculated that his testimony would have impacted the jury's view of certain witnesses'
credibility and his involvement in the crime).
Second, Petitioner cannot establish that counsel erred by failing to present a duress
defense. Although he claims that counsel could have asserted duress as a defense, he
is mistaken. Under Michigan law duress cannot excuse a homicide or any criminal activity
that leads to the death of another person. See, e.g., People v. Etheridge, 196 Mich. App.
43, 56, 492 N.W.2d 490 (1992) (duress defense not available where defendant charged
with premeditated and felony murder); People v. Travis, 182 Mich. App. 389, 392, 451
N.W.2d 641 (1990) (duress not a defense to homicide); see also Gimotty v. Elo, 40 F.
App’x 29, 32-33 (6th Cir. 2002). Similarly, Petitioner cannot establish that trial counsel
24

erred by failing to challenge the jury instructions as those instructions were proper.
Defense counsel cannot be deemed defective for failing to make a futile argument or
objection. United States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000).
Petitioner has also not shown that counsel failed to sufficiently cross-examine
witnesses or argue his case. The record reveals that counsel questioned the witnesses
about their versions of events and attempted to highlight testimony that Petitioner was
upset about the shooting and that he and the co-defendant did not discuss plans to rob
or shoot anyone before the incident. Counsel also made reasonable arguments in support
of Petitioner’s defense that he did not possess the requisite intent for aiding and abetting
felony murder. Petitioner has failed to explain, with any specificity, what more counsel
could have done which would have benefitted his case or affected the outcome at trial.
Simply put, he has not shown that trial counsel was ineffective under the Strickland
standard. Habeas relief is not warranted on these claims.
D.

Ineffective Assistance of Appellate Counsel Claim

Lastly, Petitioner asserts an independent claim that he is entitled to habeas relief
because appellate counsel was ineffective for failing to raise the defaulted issues on direct
appeal. Petitioner is not entitled to relief on any such claim. As explained supra, he has
failed to establish that appellate counsel was ineffective under the Strickland standard –
and the defaulted claims lack merit. Habeas relief is not warranted on this claim.
V.

Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to federal

habeas relief on his claims. Accordingly, the Court DENIES WITH PREJUDICE the
petition for a writ of habeas corpus.

25

Before Petitioner may appeal the Court’s decision, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). When a court denies relief on the merits, the
substantial showing threshold is met if the petitioner demonstrates that reasonable jurists
would find the court’s assessment of the claim debatable or wrong. Slack v. McDaniel,
529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by 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 court may not conduct a full merits review, but must limit its examination to a
threshold inquiry into the underlying merits. Id. at 336-37. When a court denies relief on
procedural grounds without addressing the merits, a certificate of appealability should
issue if it is shown that jurists of reason would find it debatable whether the petitioner
states a valid claim of the denial of a constitutional right, and that jurists of reason would
find it debatable whether the court was correct in its procedural ruling. Slack, 529 U.S. at
484-85.
Having considered the matter, the Court concludes that Petitioner has not made a
substantial showing of the denial of a constitutional rights as to his habeas claims and that
reasonable jurists could not debate the correctness of the Court’s procedural ruling.
Accordingly, the Court DENIES a certificate of appealability. The Court further DENIES
Petitioner leave to proceed in forma pauperis on appeal as any appeal could not be taken
in good faith. See Fed. R. App. P. 24(a).
IT IS SO ORDERED.

26

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: March 9, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record
on March 9, 2012, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

27