Gibson v. Tribley
Filing
15
MEMORANDUM OPINION and ORDER Denying (1) 1 Petition for Writ of Habeas Corpus; (2) A Certificate of Appealabiity, and (3) Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ADRIAN GIBSON,
Petitioner,
CASE NO. 10-13364
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
v.
LINDA TRIBLEY,
Respondent.
______________________________________/
OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT OF HABEAS
CORPUS; (2) A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING LEAVE
TO APPEAL IN FORMA PAUPERIS
Adrian Gibson, (“Petitioner”), presently on parole supervision with the Michigan
Department of Corrections through the Detroit Metro Parole Office, seeks the issuance of a writ
of habeas corpus pursuant to 28 U.S.C. §2254. In his application, Petitioner challenges his
conviction and sentence for (1) felon in possession of a firearm, M.C.L.A. 750.224f, and (2)
possession of a firearm during the commission of a felony, M.C.L.A. 750.227b. Petitioner was
acquitted of the additional charges of two counts of first-degree premeditated murder, M.C.L.A.
750.316 (1)(a), and assault with intent to commit murder, M.C.L.A. 750.83. For the reasons
stated below, the petition for writ of habeas corpus is DENIED.
I. BACKGROUND
Petitioner, Adrian Gibson, was convicted of the above offenses following a bench trial in
the Wayne County Circuit Court. This Court recites verbatim the relevant facts relied upon by
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the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant’s convictions arise from a July 27, 2006, shooting in Detroit. Toby
Adams and Angela Jackson were killed, and Sigmund Horn was injured. It was
alleged that defendant and Adams had a “beef” about control of the drug trade in the
area. The principal evidence implicating defendant was the preliminary examination
testimony of Jeffrey Moore and Kareem Garrett that was read into the record at trial
because both witnesses were deemed “unavailable.” After hearing the evidence, the
trial court found that although it had a “gut feeling” that defendant was the shooter,
the evidence did not establish beyond a reasonable doubt the charged crimes of
first-degree premeditated murder and assault with intent to commit murder.
However, the trial court did find that there was sufficient credible evidence that
defendant possessed a MAC-11 firearm on the night of the incident.
Before the offense, Adams testified at an unrelated proceeding, that on June 22,
2006, DeAndre Henry flagged down his car as he was driving on Whitmore Street
in Detroit and Henry was with defendant. Adams stopped his car and Henry asked
him if he had knocked on his hotel door. After Adams answered no, Henry looked
at defendant, and defendant allegedly told Henry to shoot Adams. Adams indicated
that Henry pulled out a gun and shot him multiple times, but Adams managed to
escape. Adams appeared in court and testified about the shooting on July 17, 2006.
At trial, Horn testified that on the evening of July 27, 2006, he parked his car outside
his apartment building, and Adams and Jackson were sitting nearby in chairs on the
sidewalk. Horn heard a male voice state, “I got you now.” The voice emanated from
where Adams and Jackson were sitting. Horn then heard several shots. After Horn
was shot once and fell, an unidentified person approached him and shot him two
more times. Adams was later found under Horn’s car, having been shot 15 times.
Jackson was still seated in her chair, and had been shot in the head, hand, and chest.
On Jackson’s lap was a purse containing a .40 caliber firearm, and inside her bra
were packets of marijuana and suspected cocaine. Police recovered 26
nine-millimeter casings and five fired bullets at the scene. Twenty-five of the
casings were fired from the same weapon. A firearms expert explained that a
MAC-11 firearm could have been the weapon used in the shooting.
According to Moore’s preliminary examination testimony, on the night of the
shooting, he was sitting in his car in an alley near Whitmore Street waiting for his
girlfriend. Moore heard gunshots and, shortly afterward, saw defendant and “Carl”
running toward him. He described defendant as wearing a black hoodie sweatshirt
with an object “swinging from off his waist” underneath the hoodie. Defendant got
into the front passenger seat of Moore’s car and Carl got into the back seat. Once
defendant was inside the car, Moore saw that the object swinging underneath
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defendant's hoodie was a black MAC-11 nine-millimeter firearm. Moore had seen
defendant with the same MAC-11 firearm “a couple of days” before the shooting.
Moore did not see a weapon in Carl’s possession. After defendant directed Moore
to “pull off,” Moore immediately drove away and eventually dropped off the men
near defendant’s mother’s residence. Moore testified that the day after the shooting,
he spoke with defendant outside a house on Whitmore Street, and defendant
allegedly talked about “people running their mouths” and, in reference to Adams,
stated that “he had to handle that.” Moore indicated that he was aware that Adams
had testified against Henry in court.
According to Garrett’s preliminary examination testimony, a couple of weeks before
the shooting, defendant asked him to “kill” Adams and showed him a MAC-11
firearm with a shoulder strap. Garrett was aware that Adams and defendant’s good
friend, Henry, had a disagreement. Garrett did not take the firearm or agree to kill
Adams. Garrett testified that on the night of the shooting, he heard gunshots and “a
minute or two later” saw a car drive past him. Moore was driving the car, and
defendant, who was wearing a hoodie, and a third unidentified male passenger were
also inside. After the shooting, Garrett saw defendant on Whitmore Street and asked
defendant if he had “a job” for him. Defendant responded that he had a job for him,
but “he took care of it” himself.
People v. Gibson, No. 283508, * 1-2 (Mich.Ct.App. May 21, 2009).
Petitioner’s conviction was affirmed on appeal. Id., lv. den. 485 Mich. 898, 772 N.W.2d
424 (2009).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The evidence was insufficient to support the verdicts, the verdicts are
inconsistent, and defendant has been denied due process of law pursuant to US
CONST AM XIV.
II. Defendant was denied his right of confrontation by the erroneous admission, over
objection, of witnesses’ preliminary examination testimony. US CONST AM VI.
III. Defendant was denied due process of law by being sentenced based on inaccurate
information, improperly scored guidelines, and improper assumptions; he should be
resentenced and his presentence report should be corrected to eliminate irrelevant
information. US CONST AM XIV.
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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 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.
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, 130 S. Ct. 1855, 1862 (2010)((quoting Lindh
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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, 131 S. Ct. 770, 786 (2011)(citing Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)).
III. DISCUSSION
A. Sufficiency of the Evidence and Inconsistent Verdict.
Petitioner first contends 1) that there was no evidence upon which a verdict of guilt on
the firearm charges could have been based and 2) the trial court rendered an inconsistent verdict
by acquitting him of two counts of first-degree premeditated murder and assault with intent to
commit murder, but then convicting him of being a felon in possession of a firearm and felony
firearm.
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
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omitted)(emphasis in the original). Circumstantial evidence alone is sufficient to support a
conviction, and it is not necessary for the evidence at trial to exclude every reasonable
hypothesis except that of guilt. Johnson v. Coyle, 200 F. 3d 987, 992 (6th Cir. 2000)(internal
quotations omitted).
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 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.
The elements of felony-firearm are that the defendant possessed a firearm while
committing, or while attempting to commit, a felony offense. See Parker v. Renico, 506 F. 3d
444, 448 (6th Cir. 2007). The elements of felon in possession of a firearm in Michigan include:
(1) a previous felony conviction, (2) that the defendant possessed a firearm, and (3) that at the
time of possession, less than three or five years, depending on the underlying felony, has passed
since the defendant had completed his term of incarceration, satisfied all conditions of probation
and parole, and paid all fines. Id.
Petitioner initially contends that this Court should set aside the verdict because the
judge’s decision to find him guilty of the firearm charges is inconsistent with her decision to
acquit him of the murder and assault with intent to commit murder charges.
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The Michigan Court of Appeals indicated in rejecting petitioner’s claim, the trial judge’s
findings of fact and conclusions of law were not inconsistent:
The trial court's verdict was not factually inconsistent. It is evident from the trial
court's factual findings that it determined that Moore's and Garrett's testimony that
they each personally observed defendant in possession of a MAC-11 weapon, and
that he was in Moore's car on the night of the shooting, was credible. These findings
support defendant's convictions of felon in possession and felony-firearm, and are
not inconsistent with defendant's acquittal of the other charges. The trial court could
logically and consistently find that the witnesses' testimony was sufficient to
establish beyond a reasonable doubt that defendant possessed a MAC-11 firearm,
and at the same time find that defendant's identity as the shooter was not established
beyond a reasonable doubt.
People v. Gibson, No. 283508, Slip. Op. at * 4.
The trial judge’s factual findings determined that Moore’s and Garrett’s testimony
established that they personally observed petitioner in possession of a MAC-11 weapon.
Petitioner’s identity as the shooter was not established beyond a reasonable doubt;
however, the trial court could logically find that the witnesses’ testimony was sufficient
to establish that petitioner possessed a MAC-11 firearm during the commission of the
crime beyond a reasonable doubt. The trial court’s decision to acquit petitioner of the
murder and assault charges while convicting him of the charges of felon in possession
and felony firearm was not inconsistent.
Petitioner further claims that the evidence was insufficient because the witnesses
were not credible. 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
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sufficient evidence to convict therefore defeats a petitioner’s claim. Id. To the extent that
petitioner’s insufficiency of evidence claim rests on an allegation of the witnesses’
credibility, which is the province of the finder of fact, petitioner would not be entitled to
habeas relief. See Tyler v. Mitchell, 416 F. 3d 500, 505 (6th Cir. 2005).
B. The Right of Confrontation.
Petitioner next contends that his right to confrontation was violated when the
prosecutor was permitted to read Jeffrey Moore’s preliminary examination testimony
after Moore claimed at trial that he had no recollection of the events of the night in
question and Kareem Garrett’s preliminary examination testimony into evidence after the
prosecutor was unable to obtain his presence at trial.
When prosecutors seek to admit a nontestifying witness’ preliminary hearing
testimony, the Confrontation Clause requires two things: first, the prosecution must
establish that the declarant is “unavailable” by showing that prosecutorial authorities
have made a good-faith effort to obtain the declarant’s presence at trial, and, second, to
satisfy the “indicia of reliability” requirement, the prosecution must demonstrate that the
defendant had an adequate opportunity to cross-examine the declarant at the preliminary
examination. See Pillette v. Berghuis, 630 F. Supp. 2d 791, 804 (E.D. Mich. 2009);
overruled on other grounds at 408 Fed Appx 873 (6th Cir. 2010); cert. den. 132 S Ct 125
(2011)(citing McCandless v. Vaughn, 172 F. 3d 255, 265 (3rd Cir. 1999)).
The Michigan Court of Appeals concluded that Moore’s preliminary examination
testimony was admissible because Moore stated numerous times at trial that he did not
recall any facts from the night of the shooting, his testimony at the preliminary
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examination, or the statement he made to the police. The prosecutor attempted to refresh
Moore’s memory with the contents of his statement, but Moore continued to profess that
he had no recollection. Moore’s claimed lack of memory brought his preliminary
examination testimony within the scope of M.R.E. 804(a)(3) and M.R.E. 804(b)(1).
Moore’s lack of memory qualified him as an unavailable witness under rule 804(a)(3).
See U.S. v. Rodgers, 4 F. 3d 995 (Table); 1993 WL 330642, * 3 (6th Cir. August 30,
1993).
With respect to Garrett’s preliminary examination testimony, as the Michigan
Court of Appeals indicated in rejecting petitioner’s claim, See Gibson, Slip. Op. at * 5-6,
the record establishes that the prosecution made diligent good-faith efforts to secure
Garrett’s presence at petitioner’s trial:
With regard to Garrett, defendant argues that the trial court abused its
discretion in finding that the prosecution exercised due diligence in
attempting to produce him for trial. On November 30, 2007, a subpoena was
issued for Garrett to appear at trial on December 3, 2007. When Garrett did
not appear, the trial court held a due diligence hearing on December 4, 2007.
At the hearing, the prosecutor explained that the police and the prosecution
had been very successful in producing Garrett for prior hearings, and had no
indication that he would not appear for trial. Officer Anthony O'Rourke
testified that on at least three prior occasions the police were successful in
locating Garrett in the Palmer Park area of Detroit or at his residence on Lee
Place and bringing him to court. O'Rourke had also driven Garrett to his
residence on Lee Place after one hearing. With regard to the trial subpoena,
O'Rourke testified that he was instructed to serve Garrett with the subpoena
and obtain his phone number so he could be reached for further instructions.
O'Rourke explained that the police searched for Garrett for a week before the
subpoena was served. When O'Rourke went to Garrett's last known residence
at 1410 Lee Place, he was told that Garrett and his mother had moved to
Pingree Street. On the Friday before trial began, O'Rourke went to the
Pingree address to serve Garrett with the subpoena. O'Rourke met Garrett
and successfully delivered the subpoena. O'Rourke explained to Garrett
where and when he needed to report and advised him that a failure to do so
would result in his arrest. O'Rourke had Garrett sign the document, gave him
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a copy, and had him write down his phone number. Over the weekend,
Sergeant Gary Diaz attempted to call Garrett and a female told him that
Garrett was not there. The prosecutor also made repeated calls to the phone
number provided by Garrett. When Garrett did not appear on December 3rd,
the trial court issued a witness detainer for Garrett's arrest.
On the morning of December 4, 2007, Diaz went to the Pingree residence to
locate Garrett. Through the front window, Diaz could see Garrett sleeping on
a couch. Diaz indicated that he banged on the window and Garrett woke up.
After Diaz called Garrett's name, Garrett looked Diaz “in the face” and
walked to the back of the house, and Diaz heard the back door slam. In the
back, Diaz saw a set of footprints in the snow leading from the house over a
fence into the next yard. O'Rourke testified that he also went to the Pingree
address at two separate times on December 4, 2007, but was unsuccessful in
finding Garrett. Two other officers attempted to locate Garrett in the Palmer
Park area. The prosecutor indicated that Garrett left a message on her phone,
indicating that he was “homeless” and to “stop going over to [his] mother's
house.”
The trial court found that the prosecution had exercised due diligence, and
that Garrett's preliminary examination testimony would be allowed. The trial
court stated that Garrett's action of fleeing the police when they came to the
Pingree residence indicated his intention to make himself unavailable.
Despite its ruling, the trial court gave the prosecution another day to locate
Garrett. That night, police officers searched for Garrett in the Palmer Park
area and at the Pingree residence, but were unsuccessful. Id.
In the present case, the police made numerous attempts to locate Garrett. When
the police finally caught up with Garrett, he ran away from the police, thus,
demonstrating an intent to make himself unavailable for trial. This Court concludes that
the prosecution and law enforcement made a good faith effort to locate Garrett and
present him at trial. See Winn v. Renico, 175 Fed.Appx. 728, 739 (6th Cir. 2006); See also
Pillette, 630 F. Supp. 2d at 804.
Next, the trial court must satisfy the “indicia of reliability” requirement in order to
admit the preliminary examination testimony of the witnesses. In order to satisfy this
requirement, the prosecution must demonstrate that the defendant had an adequate
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opportunity to cross-examine the declarant at the preliminary examination. Moore’s and
Garrett’s former preliminary examination testimony bore adequate indicia of reliability
because it was made under oath, petitioner and his counsel were present, and the
witnesses were subject to cross-examination. California v. Green, 399 U.S. 149, 165-66
(1970); Pillette, 630 F. Supp. 2d at 804; Eastham v. Johnson, 338 F. Supp. 1278, 1280
(E.D. Mich. 1972). Counsel’s cross-examination at the preliminary examination
successfully attacked Moore’s and Garrett’s testimony, rendering it almost completely
incredible, thereby limiting its use later by the trial court judge. Moreover, even if
counsel did not take full advantage of the opportunity to cross-examine Moore and
Garrett at the preliminary examination, he had an unlimited opportunity to do so.
Therefore, the admission of the preliminary examination testimony at petitioner’s trial
did not violate his right to confrontation. See Glenn v. Dallman, 635 F. 2d 1183, 1187 (6th
Cir. 1980); Havey v. Kropp, 458 F. 2d 1054, 1057 (6th Cir. 1972).
C. Sentencing.
Petitioner finally brings a number of challenges to his sentencing.
Petitioner first alleges that the trial court judge incorrectly scored several of the
sentencing guidelines variables. Article III, § 2 of the United States Constitution requires
the existence of a case or controversy through all stages of federal judicial proceedings.
This means that, throughout the litigation, the petitioner “must have suffered, or be
threatened with, an actual injury traceable to the defendant and likely to be redressed by a
favorable judicial decision.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990).
An incarcerated habeas petitioner’s challenge to the validity of his or her conviction
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satisfies the case-or-controversy requirement because the incarceration constitutes a
concrete injury which can be redressed by the invalidation of the conviction. See Spencer
v. Kemna, 523 U.S. 1, 7 (1998). Once the convict's sentence has expired, however, some
concrete and continuing injury other than the now-ended incarceration or parole -- some
“collateral consequence” of the conviction -- must exist if the suit is to be maintained in
federal court and not considered moot. Id. The scoring of the minimum range of
Petitioner’s sentence would effect Petitioner’s eligibility for parole. Petitioner is already
on parole. Being that Petitioner is currently on parole, his sentencing guideline claim is
now moot.
Even if Petitioner’s guideline claim were not moot, a challenge to an incorrectly
scored or calculated sentencing guidelines range under the Michigan Sentencing
Guidelines is not a cognizable claim for federal habeas review, because it is a state law
claim. See Tironi v. Birkett, 252 Fed. Appx. 724, 725 (6th Cir. 2007); Howard v. White,
76 Fed. Appx. 52, 53 (6th Cir. 2003); Whitfield v. Martin, 157 F. Supp. 2d 758, 762 (E.D.
Mich. 2001). “Petitioner has no state-created interest in having the Michigan Sentencing
Guidelines applied rigidly in determining his sentence.” See Mitchell v. Vasbinder, 644 F.
Supp. 2d 846, 867 (E.D. Mich. 2009). “[I]n short, petitioner had no federal constitutional
right to be sentenced within Michigan’s guideline minimum sentence recommendations.”
Doyle v. Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich. 2004). Any error by the trial court
in calculating his guideline score would not merit habeas relief. Id.
Petitioner further argues that he was erroneously scored for the two pre-meditated
murder charges and intent to commit murder charge of which he had been acquitted. At
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sentencing, the trial court specifically stated that although there was insufficient evidence
to prove the murder and assault offenses beyond a reasonable doubt, “by a preponderance
of the evidence, [it] believed that [defendant is] the person who shot these people, based
on all of the testimony together.”
This conclusion may be inconsistent with the rational of the new Supreme Court
Case. That is, to increase a sentence, the facts relied upon must be proven beyond a
reasonable doubt.
On June 17, 2013, the United States Supreme Court ruled that any fact that
increases the mandatory minimum sentence for a crime is an element of the criminal
offense that must be proven beyond a reasonable doubt. See Alleyne v. United States, ---U.S.----; 2013 WL 2922116, * 4 (U.S. June 17, 2013). In so holding, the Supreme Court
overruled Harris v. United States, 536 U.S. 545 (2002), in which the Supreme Court had
held that only factors that increase the maximum, as opposed to the minimum, sentence
must be proven beyond a reasonable doubt to a factfinder. Id. at * 6. At the time of
petitioner’s conviction and sentence, Harris was good law. In addition, there is no
indication that the Supreme Court made their holding in Alleyne retroactive to cases on
collateral review. A federal district court “may only grant habeas relief [if it finds] that
the [state] trial court’s decision was ‘contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United
States’ or ‘was based on an unreasonable determination of the facts in light of the
evidence that was presented in the State court proceeding.’” Peak v. Webb, 673 F. 3d
465, 472 (6th Cir. 2012) (quoting 28 U.S.C. § 2254(d)). In addition, “[t]he law in
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question must have been clearly established at the time the state-court decision became
final, not after.” Id. (citing Williams v. Taylor, 529 U.S. at 380). Because the Supreme
Court at the time of petitioner’s conviction did not require that facts that increase a
criminal defendant’s minimum sentence be proven beyond a reasonable doubt, petitioner
is not entitled to habeas relief on his claim. Any error by the trial court in calculating his
guideline score does not merit habeas relief. Furthermore, petitioner’s sentencing issue is
moot and not subject to habeas relief.
4. A Certificate of Appealability.
A habeas petitioner must receive a certificate of appealability (“COA”) in order to
appeal the denial of a habeas petition for relief from either a state or federal conviction. 1
28 U.S.C. § 2253(c)(1)(A), (B). A court may issue a COA “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 federal district court rejects a habeas claim on the merits, the
substantial showing threshold is met if the petitioner demonstrates that reasonable jurists
would find the district court's assessment of the constitutional claim debatable or wrong.
See 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 district court may not conduct a full merits review,
1
Effective December 1, 2009, the newly created Rule 11 of the Rules Governing
Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides
that “[t]he district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Rule 11(a), 28 U.S.C. foll. § 2254.
14
but must limit its examination to a threshold inquiry into the underlying merit of the
petitioner's claims. Id. at 336-37.
The Court will deny a certificate of appealability, because jurists of reason would
not find the Court’s resolution of the claims to be debatable.
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP) is a
lower standard than the standard for certificates of appealability. See Foster v. Ludwick,
208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v. Youngblood, 116 F.
3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of appealability may only be
granted if petitioner makes a substantial showing of the denial of a constitutional right , a
court may grant IFP status if it finds that an appeal is being taken in good faith. Id. at
764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a). “Good faith” requires a showing that
the issues raised are not frivolous; it does not require a showing of probable success on
the merits. Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not debate
this Court’s resolution of Petitioner’s claims, the issues are not frivolous; therefore, an
appeal could be taken in good faith and Petitioner may proceed in forma pauperis on
appeal. Id.
IV. CONCLUSION
For the reasons stated above, this Court concludes that Petitioner Gibson is not
entitled to federal-habeas relief on the claims presented in his petition.
Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is
DENIED WITH PREJUDICE. (Dkt.# 1).
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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be granted leave to appeal in
forma pauperis.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: July 3, 2013
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on July 3, 2013, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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