Marion v. Berghuis

Filing 71

OPINION AND ORDER Denying 68 The Motion for Writ of Habeas Corpus, the Motions to Amend 69 and 70 , Declining to Issue A Certificate of Appealability, And Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALLEN MARION,
Petitioner,
v.

Civil No. 2:12-CV-13127
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

JEFFREY WOODS,
Respondent,
____________________________________/
OPINION AND ORDER DENYING THE MOTION FOR WRIT OF HABEAS
CORPUS (ECF No. 68), THE MOTIONS TO AMEND (ECF Nos. 69, 70),
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
This matter is before the Court on Petitioner Allen Marion’s Motion for A Writ of
Habeas Corpus and two Motions to Amend. For the reasons that follow, the motions are
DENIED.
I. Background
This Court granted Petitioner a conditional writ of habeas corpus, finding that
Petitioner was denied the effective assistance of trial counsel because his attorney failed to
investigate and present an alibi defense. Marion v. Woods, 128 F Supp. 3d 987 (E.D. Mich.
2015). The Sixth Circuit reversed the decision. Marion v. Woods, 663 F. App’x. 378 (6th
Cir. 2016); cert. den. 137 S. Ct. 2291 (2017). Petitioner was represented on appeal by
members of the Federal Defender Office (FDO) in Detroit, Michigan.
Petitioner filed a Motion for A Writ of Habeas Corpus and two related Motions to
Amend the Petition. Petitioner alleges that the attorneys from the Federal Defender Office
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who represented him on appeal before the Sixth Circuit labored under a conflict of interest
because their office previously represented the main prosecution witness, Donald
“Ricardo” Sims, in his prosecution in federal court. Mr. Sims was offered a plea agreement
in federal court in exchange for his testimony in state court against Petitioner. Mr. Sims
was the sole witness against Petitioner. Petitioner claims he was advised on January 23,
2020 from Fabian Renteria Fabrio of the Federal Defender Office that the FDO had
neglected to run a “CONFLICT LEIN” on Petitioner when they were initially appointed to
represent him on his appeal and only recently learned that the FDO had represented Mr.
Sims on his guilty plea and in subsequent proceedings in federal court. Petitioner asks this
Court to either grant habeas relief or reopen his case based on his discovery that habeas
counsel labored under a conflict of interest.
II. Discussion
28 U.S.C.§ 2254(i) states that the ineffectiveness of counsel during federal or state
post-conviction proceedings “shall not be a ground for relief in a proceeding arising under
section 2254.” A claim that habeas counsel was ineffective is barred or non-cognizable
under § 2254(i). See Post v. Bradshaw, 422 F. 3d 419, 423 (6th Cir. 2005); Cooey v.
Bradshaw, 338 F. 3d 615, 622 (6th Cir. 2003). 28 U.S.C.§ 2254(i)’s language has been
extended to bar habeas relief on a claim that habeas counsel labored under a conflict of
interest while representing a petitioner during his or her habeas proceedings. See Brooks v.
Bobby, 660 F.3d 959, 963-64 (6th Cir. 2011). This Court also lacks jurisdiction under 28
U.S.C.§ 2254(i) to grant relief from judgment and reopen Petitioner’s habeas case based

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on habeas counsel’s ineffectiveness for laboring under an alleged conflict of interest.
Brooks v. Bobby, 660 F.3d at 963; Post v. Bradshaw, 422 F.3d at 423.
III. Conclusion
The Court denies the motion for writ of habeas corpus and the motions to amend.
The Court denies Petitioner a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) and
F.R.A.P. 22(b) state that an appeal from the district court’s denial of a writ of habeas corpus
may not be taken unless a certificate of appealability (COA) is issued either by a circuit
court or district court judge. If an appeal is taken by an applicant for a writ of habeas
corpus, the district court judge shall either issue a certificate of appealability or state the
reasons why a certificate of appealability shall not issue. F.R.A.P. 22(b). 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).
Petitioner is not entitled to a certificate of appealability from the denial of his motion
for a writ of habeas corpus; he failed to make a substantial showing of the denial of a
constitutional right or that this Court’s procedural ruling that his claim was barred under
28 U.S.C.§ 2254(i) was incorrect. See e.g. Jimenez v. Fla. Dep't of Corr., 481 F.3d 1337,
1343 (11th Cir. 2007).
Although the Court denies a certificate of appealability, the standard for granting an
application for leave to proceed in forma pauperis (IFP) is lower than the standard for
certificates of appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich.
2002). While 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
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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. ORDER
The Court DENIES the Motion For A Writ of Habeas Corpus (ECF No. 68), the
Motions to Amend (ECF Nos. 69 and 70), and a Certificate of Appealability.
Petitioner is GRANTED leave to appeal in forma pauperis.

Dated: 2/27/2020

s/ Victoria A. Roberts
HON. VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

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