Anthony v. Palmer

Filing 32

AMENDED OPINION and ORDER DENYING 1 Petition for Writ of Habeas Corpus, DENYING a Certificate of Appealability, and GRANTING Petitioner Leave to Appeal In Forma Pauperis Signed by District Judge Denise Page Hood. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LORENZO ANTHONY,
Petitioner,
v.

Civil Action No. 2:10-CV-13312
HONORABLE DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE

CATHERINE BAUMAN,
Respondent,
_______________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND GRANTING PETITIONER LEAVE TO APPEAL IN FORMA
PAUPERIS
This is a habeas case filed under 28 U.S.C. § 2254. Petitioner
Lorenzo Anthony, a Michigan state inmate currently incarcerated at the
Alger Correctional Facility in Munising, Michigan, filed this pro se Habeas
Petition, challenging his convictions for three counts of first-degree criminal
sexual conduct, MICH. COMP. LAWS § 750.520(B)(1)(b). For the reasons
that follow, the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was convicted following a bench trial in the Wayne County
Circuit Court. Petitioner was acquitted of three additional first-degree

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criminal sexual conduct charges.
Petitioner’s daughter, CA, 1 testified that when she was 13 years old,
petitioner would get into bed with her and place his “private part” in her
vagina on several occasions. CA never told anyone about the assaults.
(Tr. 12/18/08, pp. 6-12, 19, 46, 55). At some point, CA was taken by
petitioner and her mother for a pregnancy test. When the test came back
positive, petitioner took CA to get an abortion. CA was 13 years old when
the abortion was performed and she clarified that petitioner was the only
person to have sex with her. (Id., pp. 12-13, 15, 20, 39, 42.)
After the abortion, petitioner no longer had sex with CA. CA
observed him climb onto the top bunk of the bunk beds, where her younger
sister slept. CA admitted that she never told anyone about the alleged
incidents with her younger sister. (Id., pp.16-19).
CA’s younger sister testified that petitioner sexually assaulted her
and that she never told her mother although she told her aunt. (Id., pp. 5861). CA’s younger sister at first stated she never saw petitioner have sex
with her sister but then remembered telling a woman at Kids Talk that she

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Because the victim was a minor at the time of the offense, the Court will refer to her by her
initials to protect her privacy. The Court will refer to the victim’s sister as “CA’s sister” because her name
also begins with a “C” and it would be confusing to refer to her also as CA. The Court will refer to the
victim’s brother by his name “DA.”

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saw petitioner having sex with CA. (Id., pp. 66-68). CA’s sister denied any
sexual contact to the doctors during her examination. (Id., pp. 75-76).
Petitioner’s son DA testified that he was in the top of one of the bunk
beds when he looked down and saw petitioner on top of CA touching her
breast and bottom. (Id., pp. 86-87).
Petitioner testified and denied any sexual contact with either of his
daughters. (Id., pp. 100-02).
The judge ruled that CA was a credible witness and found petitioner’s
defense to be unpersuasive and petitioner to be not credible. The judge
further found that the prosecutor had not proven the allegations involving
CA’s sister beyond a reasonable doubt. The judge found petitioner guilty of
the three counts of first-degree criminal sexual conduct involving CA and
not guilty of the three counts involving CA’s sister. (Id., pp. 111-15).
Petitioner’s conviction was affirmed on appeal. People v. Anthony,
No. 290241, 2010 WL 1873293 (May 11, 2010). Petitioner did not file an
application for leave to appeal with the Michigan Supreme Court.
Petitioner filed a petition for writ of habeas corpus, which was held in
abeyance so that petitioner could exhaust additional claims with the state
courts.

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Petitioner filed a post-conviction motion for relief from judgment,
which was denied. People v. Anthony, No. 08-11826-01 (Wayne County
Circuit Court, January 11, 2013). The Michigan appellate courts denied
petitioner leave to appeal. People v. Anthony, No. 314742 (Mich.Ct.App.
September 23, 2013); lv. den. 495 Mich. 948, 843 N.W.2d 518-19 (2014).
On June 30, 2015, the case was reopened to the Court’s active
docket. On July 16, 2015, the Court amended the caption and ordered
respondent to file an answer to the amended habeas petition.
In his original and amended habeas petitions, petitioner seeks
habeas relief on the following grounds: (1) the evidence was insufficient to
convict petitioner; (2) trial counsel was ineffective for failing to make a
closing argument, (3) trial counsel was ineffective for failing to call
witnesses for the defense or to obtain and review the discovery with
petitioner, (4) the trial court violated petitioner’s Sixth Amendment rights by
failing to appoint substitute counsel, and (5) ineffective assistance of
appellate counsel.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of

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review for habeas cases:
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.
A decision of a state court 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 Court] to the facts of a
prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ
simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 410-11.

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The Supreme Court has explained that “[A] federal court’s collateral
review of a state-court decision must be consistent with the respect due
state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340
(2003). 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, 559 U.S. 766, 773
(2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997);
Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[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, 562 U.S. 86, 101
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
III. Discussion
A. Claim # 1. The sufficiency of evidence claim.
Petitioner first claims that there was insufficient evidence to convict
him of first-degree criminal sexual conduct because the victim’s testimony
was incredible and uncorroborated. 2

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Respondent contends that petitioner’s first and second claims are procedurally defaulted
because he failed to file an application for leave to appeal with the Michigan Supreme Court on direct
appeal. Procedural default is not a jurisdictional bar to review of a habeas petition the merits. See Trest v.
Cain, 522 U.S. 87, 89 (1997). In the present case, it is easier to address the merits of these claims.

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It is beyond question that “the 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). But the critical inquiry on review
of the sufficiency of the evidence to support a criminal conviction is,
“whether the record evidence could reasonably support a finding of guilt
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318
(1979). This inquiry, however, does not require a court to “ask itself
whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.” Instead, the relevant question is 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. Id. at 318-19(internal citation and footnote
omitted)(emphasis in the original). The Jackson standard applies to bench
trials, as well as to jury trials. See e.g. U.S. v. Bronzino, 598 F. 3d 276,
278 (6th Cir. 2010).
More importantly, a federal habeas court may not overturn a state
court decision that rejects a sufficiency of the evidence claim simply
because the federal court disagrees with the state court’s resolution of that

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claim. Instead, a federal court may grant habeas relief only if the state
court decision was an objectively unreasonable application of the Jackson
standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “Because rational
people can sometimes disagree, the inevitable consequence of this settled
law is that judges will sometimes encounter convictions that they believe
to be mistaken, but that they must nonetheless uphold.” Id. Indeed, for a
federal habeas court reviewing a state court conviction, “the only question
under Jackson is whether that finding was so insupportable as to fall
below the threshold of bare rationality.” Coleman v. Johnson, 132 S.Ct.
2060, 2065 (2012).
Finally, on habeas review, a federal court does not reweigh the
evidence or redetermine the credibility of the witnesses whose demeanor
was observed at trial. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It
is the province of the factfinder to weigh the probative value of the
evidence and resolve any conflicts in testimony. Neal v. Morris, 972 F. 2d
675, 679 (6th Cir. 1992). A habeas court therefore must defer to the fact
finder for its assessment of the credibility of witnesses. Matthews v.
Abramajtys, 319 F. 3d 780, 788 (6th Cir. 2003); See also Butzman v. U.S.,
205 F. 2d 343, 349 (6th Cir. 1953)(in a bench trial, credibility of witnesses

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is a question for trial judge).
Under Michigan law, first-degree criminal sexual conduct is
committed when there is an intrusion into the genital or anal opening of
another person under one of the enumerated circumstances set forth in
the first-degree criminal sexual conduct statute. See Farley v. Lafler, 193
Fed. Appx. 543, 548 (6th Cir. 2006); See also Malcum v. Burt, 276 F.
Supp. 2d 664, 686 (E.D. Mich. 2003)(citing People v. Garrow, 99 Mich.
App. 834, 837-38; 298 N. W. 2d 627 (1980)).
Petitioner does not contend that the victim’s testimony, if believed,
fails to make out the elements of first-degree criminal sexual conduct.
Instead, petitioner claims that the evidence is insufficient to convict
because the victim’s testimony was uncorroborated and unbelievable.
Attacks on witness credibility are simply challenges to the quality of
the prosecution’s evidence, and not to the sufficiency of the evidence.
Martin v. Mitchell, 280 F. 3d 594, 618 (6th Cir. 2002). An assessment of
the credibility of witnesses is therefore generally beyond the scope of
federal habeas review of sufficiency of evidence claims. Gall v. Parker,
231 F. 3d 265, 286 (6th Cir. 2000). The mere existence of sufficient
evidence to convict therefore defeats a petitioner’s claim. Id.

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The fact that the victim’s testimony was uncorroborated does not
render the evidence in this case insufficient. The testimony of a single,
uncorroborated prosecuting witness or other eyewitness is generally
sufficient to support a conviction, so long as the prosecution presents
evidence which establishes the elements of the offense beyond a
reasonable doubt. Brown v. Davis, 752 F. 2d 1142, 1144-1145 (6th Cir.
1985). The testimony of a sexual assault victim alone is sufficient to
support a criminal defendant’s sexual assault conviction. See United
States v. Howard, 218 F. 3d 556, 565 (6th Cir. 2000)(citing Gilbert v.
Parke, 763 F. 2d 821, 826 (6th Cir. 1985)). The victim’s testimony that
petitioner sexually penetrated her and that she was thirteen years old at
the time of the assault and was related to petitioner by blood was sufficient
to sustain petitioner’s first-degree criminal sexual conduct conviction,
notwithstanding the lack of physical evidence to corroborate the victim’s
testimony. See O'Hara v. Brigano, 499 F. 3d 492, 500 (6th Cir. 2007).
Moreover, when evidence in a bench trial “consists largely of
contradictory oral evidence, due regard must be accorded the trial court’s
opportunity to judge the credibility of witnesses.” Bryan v. Government of
Virgin Islands, 150 F. Supp. 2d 821, 827 (D. Virgin Islands 2001). In this

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case, the trial court judge chose to credit the victim’s testimony and not to
believe petitioner’s version of events. This Court must defer to the trial
court’s finding beyond a reasonable doubt that the victim was credible. Id.
at 828. Petitioner is not entitled to relief on his first claim.
B. Claims # 2-5. The assistance of counsel claims.
The Court discusses petitioner’s remaining claims together because
they allege violations of his right to the assistance of counsel. In his
second and third claims, petitioner claims he was denied the effective
assistance of trial counsel. In his fourth claim, petitioner contends that the
trial court erred in refusing to appoint substitute trial counsel for him, and
in his fifth claim, petitioner contends that he was denied the effective
assistance of appellate counsel.
To show that he was denied the effective assistance of counsel
under federal constitutional standards, a defendant must satisfy a two
prong test. First, the defendant must demonstrate that, considering all of
the circumstances, counsel’s performance was so deficient that the
attorney was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so
doing, the defendant must overcome a strong presumption that counsel’s

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behavior lies within the wide range of reasonable professional assistance.
Id. In other words, petitioner must overcome the presumption that, under
the circumstances, the challenged action might be sound trial strategy.
Strickland, 466 U.S. at 689. Second, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the
defendant must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “Strickland’s test for prejudice
is a demanding one. ‘The likelihood of a different result must be
substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379
(6th Cir. 2011)(quoting Harrington, 562 U.S. at 112). The Supreme
Court’s holding in Strickland places the burden on the defendant who
raises a claim of ineffective assistance of counsel, and not the state, to
show a reasonable probability that the result of the proceeding would have
been different, but for counsel’s allegedly deficient performance. See
Wong v. Belmontes, 558 U.S. 15, 27 (2009). The Strickland standard
applies as well to claims of ineffective assistance of appellate counsel.
See Whiting v. Burt, 395 F. 3d 602, 617 (6th Cir. 2005).
More importantly, on habeas review, “the question ‘is not whether a

12

federal court believes the state court’s determination’ under the Strickland
standard ‘was incorrect but whether that determination was
unreasonable-a substantially higher threshold.’” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). “The pivotal question is whether the state court’s application of
the Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s standard.”
Harrington v. Richter, 562 U.S. at 101. Indeed, “because the Strickland
standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.”
Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at
664). Pursuant to the § 2254(d)(1) standard, a “doubly deferential judicial
review” applies to a Strickland claim brought by a habeas petitioner. Id.
This means that on habeas review of a state court conviction, “[A] state
court must be granted a deference and latitude that are not in operation
when the case involves review under the Strickland standard
itself.”Harrington, 562 U.S. at 101. “Surmounting Strickland's high bar is
never an easy task.” Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356,
371 (2010)).

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In his second claim, petitioner argues that trial counsel was
ineffective for failing to make a closing argument at his trial. The Michigan
Court of Appeals rejected this claim:
The record discloses that defense counsel challenged the
prosecution’s evidence by cross-examining each prosecution
witness regarding his or her testimony, impeaching witnesses
with their preliminary examination testimony, and offering
defendant’s own testimony to show that he had been falsely
accused. However, counsel declined to offer a closing argument.
The decision whether to give a closing argument is a matter of
trial strategy, and this Court will not substitute its judgment for
that of counsel regarding matters of trial strategy. This was a
nonjury trial. The trial court was plainly aware that it was
required to decide whether it believed the prosecution or defense
witnesses, and was aware, through defense counsel’s
cross-examination, of the problems with each witness's
testimony. Under the circumstances, defendant has failed to
show that defense counsel’s decision to waive closing argument
was objectively unreasonable, and defendant has not overcome
the presumption of sound trial strategy.
People v. Anthony, 2010 WL 1873293, at *1 (internal citations omitted).
Although the right to the effective assistance of counsel extends to
closing arguments, an attorney “has wide latitude in deciding how best to
represent a client, and deference to counsel’s tactical decisions in his
closing presentation is particularly important because of the broad range
of legitimate defense strategy at that stage.” Yarborough v. Gentry, 540
U.S. 1, 5-6 (2003). Trial counsel’s decision to waive closing argument at a

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bench trial was not ineffective in light of the fact that the case was tried
before an experienced judge who was aware of the facts, the law, and the
issues involved in the case. See e.g. In re Robert B., 2009-Ohio-3644, ¶
46, 186 Ohio App. 3d 389, 398, 928 N.E.2d 746, 752-53 (2009). In light of
the fact that this was a one day non-jury trial before an experienced judge,
the Michigan Court of Appeals’ determination that trial counsel was not
ineffective for waiving closing argument was a reasonable decision that
defeats petitioner’s claim. See Bell v. Cone, 535 U.S. 685, 701-02
(2002)(holding the state courts’ assessment that counsel were not
ineffective for waiving closing argument was not an unreasonable
application of Strickland). Petitioner is not entitled to relief on his second
claim.
In his third claim, petitioner first contends that trial counsel was
ineffective for failing to call defense witnesses.
Petitioner raised this claim in his post-conviction motion for relief
from judgment. Petitioner never gave the names of these witnesses or
their proposed testimony. Petitioner failed to attach any affidavits from
these witnesses to his post-conviction motion or appeal, nor has he
provided this Court with any affidavits from these witnesses concerning

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their proposed testimony and willingness to testify on the petitioner’s
behalf. Conclusory allegations of ineffective assistance of counsel,
without any evidentiary support, do not provide a basis for habeas relief.
See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). By failing to
present any evidence to the state courts in support of his ineffective
assistance of claim, petitioner is not entitled to an evidentiary hearing on
his ineffective assistance of counsel claim with this Court. See Cooey v.
Coyle, 289 F. 3d 882, 893 (6th Cir. 2002)(citing 28 U.S.C. §
2254(e)(2)(A)(ii)). Petitioner has failed to attach any offer of proof or any
affidavits sworn by the proposed witnesses. Petitioner has offered, neither
to the Michigan courts nor to this Court, any evidence beyond his own
assertions as to whether the witnesses would have been able to testify
and what the content of these witnesses’ testimony would have been. In
the absence of such proof, petitioner is unable to establish that he was
prejudiced by counsel’s failure to call these witnesses to testify at trial, so
as to support the second prong of an ineffective assistance of counsel
claim. See Clark v. Waller, 490 F. 3d 551, 557 (6th Cir. 2007).
Petitioner further claims that counsel was ineffective for failing to
review the discovery packet with him concerning police reports, witness

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statements, or the preliminary examination. Petitioner, however, offered
no argument, either to the state courts or to this Court, as to how petitioner
could have used any of these discovery materials to his benefit. Because
petitioner failed to show how any of the discovery materials would have
been beneficial to his defense, he failed to show that he was prejudiced by
counsel’s alleged failure to review these materials with him, so as to
support his ineffective assistance of counsel claim. See Washington v.
Renico, 455 F.3d 722, 733 (6th Cir. 2006).
In his fourth claim, petitioner contends that the trial court improperly
denied his request to substitute trial counsel after petitioner sent the judge
a letter informing him that petitioner and his counsel had differing views as
to trial tactics.
The Sixth Amendment right to the assistance of counsel does not
guarantee a criminal defendant that he or she will be represented by a
particular attorney. Serra v. Michigan Department of Corrections, 4 F. 3d
1348, 1351 (6th Cir. 1993)(citing Caplin & Drysdale v. United States, 491
U.S. 617, 624 (1989)). A criminal defendant who has the desire and the
financial means to retain his own counsel “should be afforded a fair
opportunity to secure counsel of his own choice.” Id. (quoting Powell v.

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Alabama, 287 U.S. 45, 53 (1932)). Indeed, “[t]he Sixth Amendment
guarantees the defendant the right to be represented by an otherwise
qualified attorney whom that defendant can afford to hire, or who is willing
to represent the defendant even though he is without funds.” U.S. v.
Gonzalez-Lopez, 548 U.S. 140, 144 (2006)(quoting Caplin & Drysdale,
491 U.S. at 624-25). However, while a criminal defendant who can afford
his or her own attorney has a right to a chosen attorney, that right is a
qualified right. Serra, 4 F. 3d at 1348 (citing to Wheat v. United States, 486
U.S. 153, 159 (1988)). Stated differently, the right to counsel of one’s own
choice is not absolute. See Wilson v. Mintzes, 761 F. 2d 275, 280 (6th Cir.
1985). “Although a criminal defendant is entitled to a reasonable
opportunity to obtain counsel of his choice, the exercise of this right must
be balanced against the court's authority to control its docket.” Lockett v.
Arn, 740 F. 2d 407, 413 (6th Cir. 1984); See also Gonzalez-Lopez, 548
U.S. at 151-52)(“Nothing we have said today casts any doubt or places
any qualification upon our previous holdings that limit the right to counsel
of choice and recognize the authority of trial courts to establish criteria for
admitting lawyers to argue before them...We have recognized a trial
court’s wide latitude in balancing the right to counsel of choice against the

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needs of fairness, and against the demands of its calendar.”)(internal
citations omitted).
In reviewing a motion for substitution of counsel, a reviewing court
should consider “the timeliness of the motion; the adequacy of the [trial]
court’s inquiry into the defendant’s complaint; and the asserted cause for
that complaint, including the extent of the conflict or breakdown in
communication between lawyer and client (and the client’s own
responsibility, if any, for that conflict).” Martel v. Clair, 132 S. Ct. 1276,
1287 (2012). “Because a trial court’s decision on substitution is so
fact-specific, it deserves deference; a reviewing court may overturn it only
for an abuse of discretion.” Id.
Petitioner is not entitled to relief for several reasons.
First, petitioner failed to establish good cause for substitution of
counsel, where he failed to show that the conflict between himself and his
attorney was so great that it resulted in a total lack of communication
which prevented an adequate defense. See United States v. Jennings, 83
F. 3d 145, 149 (6th Cir. 1996). Petitioner was not entitled to substitute
counsel because his complaints against counsel involved differences of
opinion regarding trial strategy rather than any irreconcilable conflict or

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total lack of communication. See e.g. Adams v. Smith, 280 F. Supp. 2d
704, 720 (E.D. Mich. 2003). The record in this case does not demonstrate
that the disagreements between petitioner and his attorney rose to the
level of a conflict sufficient to justify the substitution of counsel. See United
States v. Sullivan, 431 F.3d 976, 981 (6th Cir. 2005).
Secondly, petitioner is unable to show that he was prejudiced by the
failure of the trial court to appoint substitute counsel, in light of the fact that
he received effective assistance of counsel at trial. See U.S. v. Vasquez,
560 F.3d 461, 468 (6th Cir. 2009). “The strained relationship” between
petitioner and his attorney was not a “complete breakdown in
communication” that prevented the petitioner from receiving an adequate
defense. Id.
The post-conviction judge’s determination that his previous denial of
petitioner’s motion to substitute counsel did not violate his Sixth
Amendment rights was not an unreasonable application of federal law,
and thus the petitioner is not entitled to federal habeas relief. See
Henness v. Bagley, 644 F.3d 308, 322 (6th Cir. 2011).
In his fifth claim, petitioner contends that appellate counsel was
ineffective for failing to raise his third and fourth claims on his direct

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appeal.
The Sixth Amendment guarantees a defendant the right to the
effective assistance of counsel on the first appeal by right. Evitts v. Lucey,
469 U.S. 387, 396-397 (1985). However, court appointed counsel does
not have a constitutional duty to raise every nonfrivolous issue requested
by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983). None of
petitioner’s claims have any merit. “[A]ppellate counsel cannot be found to
be ineffective for ‘failure to raise an issue that lacks merit.’” Shaneberger
v. Jones, 615 F. 3d 448, 452 (6th Cir. 2010)(quoting Greer v. Mitchell, 264
F.3d 663, 676 (6th Cir. 2001)). Because none of these claims can be
shown to be meritorious, appellate counsel was not ineffective in her
handling of petitioner’s direct appeal. Petitioner is not entitled to habeas
relief on his ineffective assistance of counsel claims.
IV. Conclusion
For the reasons discussed, state court adjudication of the petitioner’s
claims did not result in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law as determined
by the United States Supreme Court. Nor did the state court adjudication
result in a decision that was based on an unreasonable determination of

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the facts in light of the evidence presented in the state court proceeding.
This Court concludes that the petitioner is not entitled to federal habeas
relief on the claims contained in his petition.
In order to obtain a certificate of appealability, a prisoner must make
a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). To demonstrate this denial, the applicant is required to show
that reasonable jurists could debate whether, or 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.
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court
rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims to be debatable or wrong.
Id. at 484. “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
This Court denies a certificate of appealability because reasonable
jurists would not find this Court’s assessment of the claims to be debatable
or wrong. See Slack v. McDaniel, 529 U.S. at 484. The petitioner may,

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however, proceed in forma pauperis on appeal because an appeal could
be taken in good faith. 28 U.S.C. § 1915(a)(3).
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a
writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that the petitioner will be GRANTED
leave to appeal in forma pauperis.

Dated: December 31, 2015

s/Denise P. Hood
HON. DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served
upon the parties and/or counsel of record on December 31, 2015, by
electronic means and/or ordinary mail.
s/K. Jackson
CASE MANAGER
[phone]

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