Robertson v. Howes
ORDER Denying a Certificate of Appealability - Signed by District Judge David M. Lawson. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number 11-12325
Honorable David M. Lawson
ORDER DENYING A CERTIFICATE OF APPEALABILITY
The petitioner, Antonio Robertson, presently confined at the Lakeland Correctional Facility
in Coldwater, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254. The petitioner challenged that his convictions for second-degree murder, Mich. Comp. Laws
§ 750.317, and possession of a firearm in the commission of a felony, Mich. Comp. Laws §
750.227b, pursuant to a guilty plea, arguing that his convictions should be vacated because the
Detroit Recorder’s Court judge who accepted his plea and sentenced him failed to comply with
Michigan law by registering his judicial oath of office with the Michigan Secretary of State. The
Court found that the petitioner failed to state a claim for which he could receive habeas corpus relief
and summarily dismissed the petition.
Pursuant to Rule 11 of the Rules Governing Section 2254 Proceedings, which was amended
as of December 1, 2009:
The district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant. . . . If the court issues a certificate, the court must
state the specific issue or issues that satisfy the showing required by 28 U.S.C. §
2253(c)(2). If the court denies a certificate, a party may not appeal the denial but
may seek a certificate from the court of appeals under Federal Rule of Appellate
Rule 11, Rules Governing Section 2254 Proceedings.
A certificate of appealability may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Courts must either issue a certificate
of appealability indicating which issues satisfy the required showing or provide reasons why such
a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of
Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive a certificate of appealability, “a
petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotes and citations omitted).
In denying the habeas petition, the Court concluded that the petitioner’s arguments were
based on issues of state law and were not cognizable on habeas review. The Court also cited
precedent in the Sixth Circuit Court of Appeals and the Michigan courts denying these challenges
and rejected the petitioner’s concurrent argument that the Michigan courts wrongfully denied him
post-conviction relief on his initial claim. The Court now concludes that the petitioner has failed
to make a substantial showing that he was denied his federal constitutional rights and that reasonable
jurists could not debate the correctness of the Court’s decision. Therefore, the Court will deny a
certificate of appealability on these issues.
Accordingly, it is ORDERED that a certificate of appealability is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: June 21, 2011
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on June 21, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL
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