Banks v. Rapelleje
Filing
11
OPINION and ORDER Denying the Petition for a Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Permission to Proceed on Appeal in Forma Pauperis re 1 Petition for Writ of Habeas Corpus. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ADRIAN BANKS,
Petitioner,
Case Number 2:10-CV-13655
Honorable Denise Page Hood
v.
LLOYD RAPELJE,
Respondent.
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OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING
PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS
This matter is before the Court on Petitioner Adrian Banks’ petition for a writ of
habeas corpus, filed under 28 U.S.C. § 2254. Petitioner is serving a 15 to 30 year
sentence resulting from his no contest plea to one count of second-degree murder entered
in the Genesee Circuit Court. The petition raises six claims: (1) Petitioner has demonstrated
cause and prejudice to excuse any procedural defaults; (2) the plea was involuntary
because there was insufficient evidence to support the original charge of first-degree
premeditated murder; (3) Petitioner was denied the effective assistance of counsel; (4) the
prosecutor erroneously allowed Petitioner to accept an illusory plea agreement; (5) there
was cumulative error; and (6) the Michigan Court of Appeals should have considered
Petitioner’s claims on the merits. The Court finds that Petitioner’s claims are without merit.
Therefore, the petition is denied. The Court will also deny Petitioner a certificate of
appealability and deny any request to proceed on appeal in forma pauperis.
I. Facts and Procedural History
The charges against Petitioner arose from the shooting death of Freddie Cockrell
on November 24, 2003.
At Petitioner’s preliminary examination, the victim’s wife, Tujuana Cockrell, testified
that on the date of the shooting she pulled into the driveway of her house and called for her
husband, the victim, to help with the groceries. The victim yelled back from the garage that
Petitioner was over and was pointing a gun at him. Tujuana Cockrell went into the garage
and saw Petitioner with a gun. Petitioner told Tujuana Cockrell that he had “busted” her
husband.
Tujuana Cockrell’s sister then pulled up in her car to drop off Tujuana Cockrell’s
daughter from school. Petitioner then exited the garage, and Freddie Cockrell grabbed a
chair and gave chase. Tujuana Cockrell’s daughter saw Freddie Cockrell hit Petitioner in
the stomach with the chair. She then saw Petitioner shoot Freddie Cockrell and run away.
Tujuana Cockrell told her daughter to call 9-1-1. She then ran to her husband who was
lying on the ground, shaking. She saw blood come out of his nose and mouth.
Petitioner was arrested after a car and foot chase. The murder weapon was found
near the location Petitioner abandoned his vehicle. The victim’s wallet was also recovered.
Petitioner was originally charged with both first-degree premeditated murder, firstdegree felony murder, armed robbery, felony-firearm, and fleeing from a police officer.
On April 19, 2004, a hearing was held on Petitioner’s motion to quash the firstdegree premeditated murder charge. The trial court found that sufficient evidence was
presented at the preliminary examination to support all of the charges.
On April 28, 2004, the first date set for trial, the terms of a potential plea bargain
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were placed on the record. The prosecutor stated that he would dismiss the original
charges in exchange for Petitioner’s guilty plea to second-degree murder. He stated that
the “worst case” sentencing guidelines for Petitioner would be calculated at 18-to-31 years.
The trial court explained to Petitioner at length what his various options were and the
possible consequences. At the close of the hearing, the matter was adjourned.
On May 19, 2004, the next date set for trial, and with the jury waiting outside the
courtroom, Petitioner entered into a plea agreement. The prosecutor stated that Petitioner
would plead guilty to second-degree murder without any sentencing agreement. The plea
agreement was reduced to writing and Petitioner signed his name to it.
Petitioner stated that he was thirty-four years old and that he understood and agreed
to the terms of the plea agreement. Petitioner was then informed of all the trial rights he
would be waiving by pleading guilty. Petitioner indicated his understanding. Petitioner
agreed that his plea was made freely, understandingly, and voluntarily. He denied that
there had been any undue influence, compulsion, or duress to obtain his plea. Petitioner
also affirmed that no promises were made to him other than those that were placed on the
record. Petitioner also denied that anyone threatened him.
Petitioner then stated that he would plead no contest to the amended charge of
second-degree murder. The court accepted the no contest plea because of the potential
for civil liability. The trial court referred to the preliminary examination transcript to support
a factual basis for the plea. The court accepted the plea.
At the sentencing hearing, the trial court elicited additional facts from the wife of the
victim before imposing sentence. Tujuana Cockrell explained that Petitioner had accused
the victim of having an affair with Petitioner’s girlfriend. Petitioner had been constantly
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calling the victim’s home. When Tujuana Cockrell returned home on the day of the
shooting, Petitioner was holding a gun to her husband’s head in the garage. When
Petitioner left the garage, her husband pursued him with a chair. She saw Petitioner
pointing the gun, but she did not see the shot. She explained: “I know that [Petitioner]
knew exactly what he was doing when he came over to the house, and when he fought my
husband in the garage, and everything, and like I said, I keep thinking that he would have
kept coming back, and kept coming back, until it happened anyway. . . .”
Sentencing
Transcript, at 31. She explained that her daughter and sister saw Petitioner shoot her
husband. Petitioner chose to have his counsel read a letter he wrote explaining his version
of events. He claimed that he was leaving the property and the shooting would never have
happened if the victim had not hit him with the chair.
Petitioner’s counsel argued that too many points were scored for the offense variable
dealing with a premeditated intent to kill. He argued that there was no evidence presented
at the preliminary examination to support the scoring. The trial court agreed, finding that
the shooting was not a premeditated act. The offense variable scoring was lowered to
reflect an intentional killing occurring in a combative situation. The guideline range
ultimately was scored for the minimum sentence to be between 15 and 25 years. The
Court sentenced Petitioner to the bottom of the range, imposing a 15 to 30 year sentence.
Following sentencing, Petitioner appealed his conviction to the Michigan Court of
Appeals. His delayed application for leave to appeal raised the following claim:
I. The trial court erred in the scoring of the sentencing guidelines.
The Court of Appeals dismissed the application for leave to appeal because it had
not been filed within twelve months of sentencing as required by Michigan Court Rule
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7.205(F)(3). People v. Banks, No. 264946 (Mich. Ct. App. October 20, 2005). Petitioner did
not attempt to appeal this order in the Michigan Supreme Court.
Petitioner returned to the trial court and filed a motion for relief from judgment. The
motion raised the same claims that Petitioner presents in the instant habeas petition. The
trial court denied the motion in an opinion and order dated August 7, 2008. The trial court
found that Petitioner had not demonstrated cause and prejudice as required by Michigan
Court Rule 6.508(D)(3) to excuse his failure to raise his new claims on direct review.
Petitioner then filed an application for leave to appeal in the Michigan Court of
Appeals. The application was denied “for failure to establish entitlement to relief under
MICH. CT. RULE 6.508(D).” People v. Banks, No. 289989 (Mich. Ct. App. April 24, 2009).
Petitioner applied for leave to appeal this decision in the Michigan Supreme Court.
The Michigan Supreme Court found that Petitioner had been deprived of his constitutional
right to a direct appeal and remanded the case to the Michigan Court of Appeals to
consider his claims under the standard for direct appeals. People v. Banks, No. 138909
(Mich. Sup. Ct. December 21, 2009).
On remand, the Michigan Court of Appeals denied Petitioner’s application for leave
to appeal “for lack of merit in the grounds presented.” People v. Banks, No. 289989 (Mich.
Ct. App. January 22, 2010). Petitioner appealed this decision, but the Michigan Supreme
Court denied leave to appeal by a standard order. People v. Banks, No. 140534 (Mich.
Sup. Ct. July 26, 2010).
Petitioner then commenced the instant action by filing his application for a writ of
habeas corpus on September 14, 2010.
II. Standard of Review
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Review of this case is governed by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas
corpus only if he can show that the state court’s adjudication of his claims on the merits(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).
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 v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Visciotti, 537
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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)). The Supreme Court has
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. “[I]f this standard
is difficult to meet, that is because it was meant to be.” Harrington, 131 S. Ct. at 786.
Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar
federal courts from relitigating claims that have previously been rejected in the state courts,
it preserves the authority for a federal court to grant habeas relief only “in cases where
there is no possibility fairminded jurists could disagree that the state court’s decision
conflicts with” the Supreme Court’s precedents. Id. Indeed, “Section 2254(d) reflects the
view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal
justice systems,’ not a substitute for ordinary error correction through appeal.” Id. (citing
Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979)(Stevens, J., concurring in judgment)).
Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to
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. at 786-87.
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III. Analysis
A. Statute of Limitations
Respondent first asserts that the petition is subject to dismissal because it was filed
after expiration of the one-year statute of limitations under 28 U.S.C. § 2244(d). Petitioner
did not file a reply brief addressing this defense. Nevertheless, Respondent’s argument
is not well-taken.
The one year statute of limitation runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).
A petition for writ of habeas corpus must be dismissed where it has not been filed
within the one year statute of limitations. See Holloway v. Jones, 166 F. Supp. 2d 1185,
1187 (E.D. Mich. 2001).
Respondent asserts that Petitioner delayed more than one year between the time
his first application for leave to appeal was dismissed as untimely by the Michigan Court
of Appeals on October 20, 2005, and the date on which he filed his motion for relief from
judgment on April 11, 2007. What Respondent fails to take into account is that the Michigan
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Supreme Court found that Petitioner had been denied the effective assistance of appellate
counsel during his first appeal, and it awarded him a new direct appeal. The statute of
limitations did not begin to run under § 2244(d)(2)(A) until the completion of that renewed
direct appeal. Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (Conviction held no longer
final for statute of limitations purposes after state supreme court granted renewed direct
appeal).
The renewed direct appeal concluded when the Michigan Supreme Court
subsequently denied leave to appeal on July 26, 2010. The statute of limitations began
running 90 days later, when the time for filing a petition for a writ of certiorari in the United
State Supreme Court expired. Id. The petition was timely filed on September 14, 2010,
even before the limitations period began to run.
B. Procedural Default
Respondent next asserts that review of Petitioner’s claims is barred by his
procedural default of failing to raise them during his direct appeal. Again, this argument is
not well taken.
It is true that the trial court relied on Michigan Court Rule 6.508(D)(3) in denying
Petitioner’s motion for relief from judgment. This form of adjudication often times results
in a procedural default of the claims raised in the motion for relief from judgment. See
Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc). Respondent again
ignores the fact that the Michigan Supreme Court found that Petitioner’s direct appeal
counsel was ineffective and awarded him a new direct appeal. His habeas claims were
then presented again to the Michigan Court of Appeals, and it denied relief on the merits.
Because the state court decision denying Petitioner relief with respect to his habeas claims
did not rest on a state procedural rule, his claims are not defaulted. See Durr v. Mitchell,
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487 F.3d 423, 433 (6th Cir. 2007).
The rejection of Respondent’s procedural default defense renders moot Petitioner’s
first claim (asserting he has shown cause and prejudice to excuse any default) and his sixth
claim (asserting the state courts should have reviewed his claims on the merits).
C. Validity of Petitioner’s No Contest Plea
Petitioner’s substantive habeas claims all hinge on the same basic assertion.
Petitioner claims that there was no evidence of premeditation to support the original charge
of first-degree premeditated murder, and therefore the plea agreement to second-degree
murder was illusory, rendering his plea invalid. As proof, Petitioner points to the fact that
during the sentencing hearing, the trial court found that the preliminary examination
transcript did not support a finding that Petitioner premeditated the killing.
Petitioner’s second, third, and fourth habeas claims each blame a different actor for
allowing his plea to occur under these circumstances. His second claim blames the trial
court, his third blames his trial attorney, and his fourth blames the prosecutor. All these
claims fail for the same reasons. First, the fact that the trial court scored the guidelines in
a particular way does not mean that the first-degree premeditated murder charge could not
have been supported at trial. Second, even assuming there was no evidence of
premeditation, the plea agreement was not illusory because Petitioner was also charged
with first-degree felony murder.
To pass constitutional muster, a plea of guilty or nolo contendere must be knowingly
and voluntarily made. See, e.g., Brady v. United States, 397 U.S. 742, 748 (1970). The
defendant must be aware of the "relevant circumstances and likely consequences" of his
plea. Hart v. Marion Corr. Inst., 927 F.2d 256, 257 (6th Cir. 1991). This includes the
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defendant's awareness of the maximum sentence that can be imposed for the crime for
which he is pleading guilty or nolo contendere. King v. Dutton, 17 F.3d 151, 154 (6th Cir.
1994).
When a petitioner brings a federal habeas petition challenging his plea of guilty or
nolo contendere, the state generally satisfies its burden of showing that the plea was made
voluntarily by producing a transcript of the plea proceedings. Garcia v. Johnson, 991 F.2d
324, 326 (6th Cir. 1993). "The factual findings of a state court that the plea was proper
generally are accorded a presumption of correctness." Id. (citing Dunn v. Simmons, 877
F.2d 1275 (6th Cir. 1989)). A habeas petitioner must overcome a heavy burden if the
federal court is to overturn these findings by the state court. Id. at 328.
Petitioner alleges that his plea was involuntary because the plea bargain was
illusory, in that there was insufficient evidence of premeditation to charge him with
first-degree murder. A plea agreement is entered into involuntarily and unknowingly if the
defendant is unaware that the prosecution's promise is illusory. See United States v.
Randolph, 230 F.3d 243, 250-51 (6th Cir. 2000). Illusory representations made by the
prosecutor to induce a defendant to waive his right to trial and enter a guilty plea have been
found to constitute coercion justifying the withdrawal of a guilty plea. See Spearman v.
United States, 860 F. Supp. 1234, 1249 (E.D. Mich. 1994). However, a plea bargain is not
illusory even where a charge dropped in exchange for the plea bargain is later discovered
to have lacked an adequate foundation or sufficient evidence. See United States v.
Quisenberry, Nos. 98-3618, 98-3994, 98-4156, 1999 U.S. App. LEXIS 30168, 1999 WL
1073659, at *6 (6th Cir. Nov. 17, 1999); see also United States v. Morgan, 958 F.2d 847,
849 (8th Cir. 1992) (holding that the fact that two of the seven counts against the defendant
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were invalidated because the defendant's conduct was determined not to violate the
relevant statutes did not entitle the defendant to withdraw his entire guilty plea).
Prior to the plea hearing, the trial court held a hearing on Petitioner’s motion to
quash the first-degree premeditated murder charge, and it found that sufficient evidence
was presented at the preliminary examination to bind over the Petitioner on that charge.
The standard for determining whether sufficient evidence was offered at the examination
to support the charge asks merely whether probable cause exists to believe that the
defendant committed the crime. People v. Orzame, 224 Mich. App. 551, 558 (1997).
"Probable cause requires a quantum of evidence 'sufficient to cause a person of ordinary
prudence and caution to conscientiously entertain a reasonable belief' of the accused's
guilt." People v. Yost, 468 Mich. 122, 126 (2003)(quoting People v. Justice (After Remand),
454 Mich. 334, 344 (1997)). Circumstantial evidence and reasonable inferences arising
from the evidence are sufficient to support binding over the defendant if such evidence
establishes probable cause. Indeed, even minimal circumstantial evidence is sufficient to
prove intent because of the difficulty in proving a defendant's state of mind. People v.
McRunels, 237 Mich. App. 168, 181 (1999).
The evidence presented at the preliminary examination included testimony that
Petitioner went over to the victim’s house armed with a handgun, confronted him the
garage, held the gun to his head, and then later shot him to death. While it is true there
was also evidence presented that Petitioner only shot the victim after he attempted to leave
and was chased and struck by the victim, the evidence was certainly “sufficient to cause
a person of ordinary prudence and caution to conscientiously entertain a reasonable belief
of the accused's guilt." Yost, supra.
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The fact that the trial court in scoring the sentencing guidelines later found that the
murder was not premeditated does not mean that Petitioner could not have been tried and
convicted for first-degree premeditated murder. A trial court determines the sentencing
variables by reference to the record, using the standard of preponderance of the evidence.
People v. Drohan, 475 Mich. 140, 142-143 (2006). Information relied upon to score the
guidelines may come from various sources, including some that would not be admissible
at trial. See People v. Potrafka, 140 Mich. App. 749, 751-52 (1985). For reasons not
disclosed on the record, the trial court decided to rely merely on the preliminary
examination transcript to determine by a preponderance of the evidence whether there was
premeditation. Likewise, rather than contest the scoring, the prosecutor chose to concede
the point. It does not follow from this that the charge could not have been supported at trial
if Petitioner had not accepted the plea deal. The charge of first-degree premeditated
murder was not doomed to fail at trial, and Petitioner gained a tangible benefit from having
it dismissed as part of his plea bargain.
Even setting aside that first-degree premeditated murder charge, Petitioner was also
charged with first-degree felony murder. If convicted of this charge, Petitioner faced a
sentence of mandatory life imprisonment. See MICH. COMP. LAWS § 750.316. The
evidence at the preliminary examination showed that Petitioner had the victim’s wallet when
he left the scene. Again, while it appears Petitioner claims that he had the wallet to prove
that the victim was having an affair, there existed a reasonably possibility that he could
have been convicted of felony-murder. Accordingly, Petitioner obtained a tangible benefit
from having this charge dismissed as part of the plea bargain.
Because Petitioner derived a real benefit from his plea bargain in this case, his plea
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was not illusory. See McAdoo v. Elo, 365 F.3d 487, 498 (6th Cir. 2004). It follows that his
attorney was not ineffective for allowing him to enter into an allegedly illusory bargain and
that the prosecutor did not commit misconduct by offering the bargain. Petitioner’s second,
third, and fourth claims are without merit.
D. Cumulative Error
Petitioner’s fifth claim contends that he is entitled to habeas relief because of
cumulative error. The cumulative weight of alleged constitutional errors in a state
prosecution does not warrant federal habeas relief, because there is no clearly established
federal law permitting or requiring the cumulation of distinct constitutional claims to grant
habeas relief. Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005). Petitioner is not entitled
to habeas relief on the grounds of cumulative error.
IV. Certificate of Appealability/Appeal In Forma Pauperis
Before Petitioner may appeal this 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 district court denies 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 court may not conduct a full merits review,
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but must limit its examination to a threshold inquiry into the underlying merit of the claims.
Id. at 336-37. The Court concludes that a certificate of appealability is not warranted in this
case because reasonable jurists could not debate the Court’s assessment of Petitioner’s
claims. For the same reasons noted above, the Court denies any request by Petitioner to
proceed on appeal in forma pauperis because an appeal would not be taken in good faith.
V. Conclusion
For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas
corpus is DENIED and the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that permission to proceed on appeal in forma pauperis
is DENIED.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: November 30, 2012
I hereby certify that a copy of the foregoing document was served upon Adrian Banks
#498455, 9625 Pierce Road, Freeland, MI 48623 and counsel of record on November 30,
2012, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
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