Susalla v. Berghuis

Filing 18

MEMORANDUM OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, But Granting Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH DAMIAN SUSALLA,
Petitioner,
v.

CASE NO. 2:12-cv-13818
HON. ARTHUR J. TARNOW

MARY BERGHUIS,
Respondent.
__________________________________/
OPINION AND ORDER
DENYING THE HABEAS CORPUS PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, BUT
GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This matter has come before the Court on petitioner Joseph Damian
Susalla’s pro se amended petition for the writ of habeas corpus under 28 U.S.C. §
2254. The petition challenges Petitioner’s Oakland County conviction for firstdegree (premeditated) murder, Mich. Comp. Laws § 750.316(1)(a). Petitioner
alleges as grounds for relief that: (1) prejudicial hearsay was admitted at his trial;
(2) evidence of his past violent acts deprived him of a fair trial; (3) the trial court
did not have jurisdiction over him; (4) the trial court’s jury instructions were
inadequate; (5) the trial court deprived him of a competency hearing; (6) the trial
judge was biased and failed to control the proceedings; (7) the prosecutor failed to
protect his rights; (8) he was constructively denied trial counsel; and (9) appellate
counsel was ineffective. Respondent Mary Berghuis urges the Court through

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counsel to deny the petition on grounds that Petitioner procedurally defaulted some
of his claims and the state-court decisions were not contrary to Supreme Court
precedent, unreasonable applications of Supreme Court precedent, or
unreasonable applications of the facts. The Court has determined from the
pleadings and state-court record that Petitioner’s claims do not warrant habeas
relief. Accordingly, the habeas petition will be denied.
I. Background
Petitioner was charged with the murder of Kelley Duberg (“Duberg”) and
tried before a jury in Oakland County Circuit Court. The Michigan Court of
Appeals accurately summarized the evidence at trial as follows:
Defendant did not dispute that he killed Duberg, his girlfriend, but
claimed that he killed her while in a fit of rage, and not with
premeditation and deliberation.
On the morning of May 23, 2009, which was the Saturday before
Memorial Day, defendant asked his stepfather and mother, Roger and
Karen Wickstrom, if it was okay if he camped on their property in
Crawford County. He planned to take Duberg with him. Defendant
also borrowed a shovel and an ax from the Wickstroms. The
Wickstroms next saw defendant the following evening, May 24, 2009,
when he returned the shovel and ax. Defendant told the Wickstroms
that he and Duberg had not camped because Duberg was drunk.
Based on defendant’s history of violence with women, Karen
Wickstrom became concerned about Duberg’s safety. She told
defendant that she wanted to see or talk with Duberg, to which
defendant gave varying responses, such as Duberg was drunk,
sleeping, or not answering her telephone, and had left with another
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man. Karen tried calling Duberg on her cellular telephone over the
next two days, but Duberg never answered her telephone. Finally, on
Wednesday, May 27, 2009, Karen called the Michigan State Police to
report Duberg missing.
Sergeant Melinda Logan, who took the missing person report, went to
Duberg’s apartment to conduct a welfare check. Logan did not find
Duberg. Logan also sent a police officer to Duberg’s place of
employment; her coworkers reported that Duberg had not appeared
for work that week.
That same day, Logan received information that defendant was at
Doug Fletcher’s house on Bentler Street in Detroit. Defendant was
taken into custody. After waiving his Miranda1 rights, defendant told
two Michigan State Police officers that he had last seen Duberg on
Saturday and that he believed she was with someone named Ian.
Duberg’s car, which defendant was known to drive, was found at a
convenience store approximately nine blocks from Fletcher’s house.
The car had been backed into the parking spot, such that the car’s
license plate was not visible.
According to Fletcher, he saw Duberg’s car on his property on May
25, 2009. He sent Bruce Cousins across the street to Karen
McCartney’s house to ask defendant to move the car. Defendant
asked to speak to Cousins alone. He told Cousins that he had killed
someone and buried the body. He explained that he had hit the person
and the person had urinated and defecated. Defendant further told
Cousins that his girlfriend was passed out at home. Sean Voegler was
also at McCartney’s house. Defendant told Voegler that he had
murdered and buried his girlfriend. He explained that he was jealous
over his girlfriend. Defendant stated that his girlfriend deserved
everything that she had received and that he also wanted to take care
of the other man.

1

Miranda v. Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L.Ed.2d 694 (1966).

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On June 5, 2009, the Michigan State Police received consent from the
Wickstroms to search their property in Crawford County. With the
aid of a cadaver dog, the officers found the buried remains of Duberg.
Duberg’s body was wrapped in a shower curtain, tied with extension
cords and twine, and several garbage bags. According to the medical
examiner, Duberg suffered blunt force trauma to her face, which
caused swelling and bruising around her eyes, but the cause of death
was ligature strangulation. The medical examiner testified that it
generally takes ten to 15 seconds for a person being choked to lose
consciousness, but that it takes a few minutes of strangulation for
irreversible brain damage and death to occur. After defendant was
arrested for the killing of Duberg, he made a telephone call to his
mother from jail in which he stated, “I'm going to try to get it down.”
Defendant testified that he and Duberg argued during the evening of
May 22, 2009. Duberg told defendant that she hated him, and when
he asked her what her problem was, she did not respond; she just
glared at him. Defendant attempted to give her a hug, but she kicked
him in the groin. According to defendant, he then went into a rage and
lost [] control of himself; he stated that he just “blacked out.” He put
his hands around Duberg’s neck and strangled her. When Duberg
urinated on him, defendant hit her three times in the face. And then,
after Duberg just laid there for about two hours, defendant realized
that she was dead. He wrapped her up and buried her the next day.
Defendant denied that he ever planned to kill Duberg.
On cross-examination, defendant admitted that he put a piece of twine
around Duberg’s neck. After he punched Duberg, he walked to the
kitchen and took the twine from a drawer. Defendant first claimed
that the twine broke as soon as he placed it around Duberg’s neck and
pulled, but then he admitted that he pulled the twine hard enough to
break through the cartilage in Duberg’s neck and applied pressure
long enough for Duberg to lose consciousness and die.
Defendant admitted that he was jealous and controlling with regard to
women and, especially, to the women that he dated. Barbara Polson
and Kenneth McCray, who lived in the apartment above Duberg’s
apartment, testified that they often heard defendant and Duberg argue.
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They also heard sounds related to shoving and pushing. Two weeks
before Memorial Day, Polson saw defendant “pulling” Duberg by the
arm. Jeffrey Saucerman, who knew defendant from AA, testified that
it seemed defendant was jealous in his relationship with Duberg.
Defendant told Saucerman that he checked Duberg’s panties for
semen. Telephone records established that on May 12, 2009,
defendant called Duberg’s cellular telephone 74 times and that on
May 13, 2009, he called 78 times. Two of Duberg’s coworkers
testified that, based on conversations with Duberg about defendant,
they were concerned for Duberg’s safety. Gregory Barber, Duberg’s
boss, testified that he received a note from Duberg on April 22, 2009,
stating that she had broken up with her boyfriend and that she needed
to take the day off because she needed to change the lock on her door
and because she needed to go to Verizon to get a battery for her
cellular telephone to replace the one that defendant had taken.
According to Janet Sylvester, who attended AA with Duberg, Duberg
told her two weeks before she went missing that she was afraid that
defendant was going to kill her.
Deborah Aquilina, defendant’s sister, testified that she called 911 on a
day in March 2005 because defendant had “kicked [her] ass.” She
had a bloody nose and a black eye. Robin Susalla, defendant’s wife,
testified that defendant punched her in the face on four or five
occasions. Fletcher testified that he had seen defendant beat a former
girlfriend in the head with a tire iron.
People v. Susalla, No. 299402, 2011 WL 5008586, at *1–3 (Mich. Ct. App. Oct.
20, 2011) (footnote in original).
There was additional evidence that Petitioner’s palm print was found on one
of the plastic bags in which Duberg was buried. On June 14, 2010, the jury found

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Petitioner guilty, as charged, of first-degree (premeditated) murder, and on July 6,
2010, the trial court sentenced Petitioner to mandatory life imprisonment.
Petitioner raised his first two habeas claims (the evidentiary issues) in an
appeal as of right, claiming that the trial court erred reversibly by admitting in
evidence (1) Duberg’s out-of-court comment and (2) testimony concerning
Petitioner’s prior acts of domestic violence. The Michigan Court of Appeals
determined that Petitioner had not established “plain error” in the admission of
Duberg’s out-of-court statement and that the trial court did not abuse its discretion
in admitting Petitioner’s prior acts of domestic violence. Accordingly, the Court of
Appeals affirmed Petitioner’s conviction. See id. Petitioner raised the same claims
in the Michigan Supreme Court, which denied leave to appeal on April 23, 2012.
See People v. Susalla, 491 Mich. 909; 810 N.W.2d 912 (2012) (table).
On August 29, 2012, Petitioner commenced this action by filing a pro se
habeas petition and a motion to stay the federal proceedings. The habeas petition
raised the two claims that Petitioner had presented to the state courts on direct
appeal. In his motion for a stay, Petitioner explained that wanted to pursue state
remedies for several claims that his appellate counsel had failed to raise on direct
appeal. The Court granted Petitioner’s request for a stay and administratively

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closed this case on September 29, 2012. See Order Granting Petitioner’s Mot. for a
Stay, ECF No. 4.
Petitioner subsequently raised several claims in a motion for relief from the
state court’s judgment. The trial court found no merit in Petitioner’s jurisdictional
claims and determined that Petitioner was not entitled to relief on his other claims
pursuant to Michigan Court Rule 6.508(D). See People v. Susalla, No. 09-228601FC, Op. and Order (Oakland Cty. Cir. Ct. July 11, 2013). The Michigan Court of
Appeals denied Petitioner’s subsequent application for leave to appeal on the basis
that Petitioner failed to establish entitlement to relief under Rule 6.508(D). See
People v. Susalla, No. 317721 (Mich. Ct. App. Mar. 14, 2014). On September 29,
2014, the Michigan Supreme Court denied leave to appeal for the same reason.
See People v. Susalla, 497 Mich. 868; 853 N.W.2d 367 (2014).
On October 17, 2014, Petitioner filed an amended habeas corpus petition and
a motion to lift the stay in this case. See ECF Nos. 5 and 6. The amended petition
contains the two claims that Petitioner presented to the state court on direct appeal
and the seven claims that Petitioner raised in his motion for relief from judgment.
The Court granted Petitioner’s motion to lift the stay and then re-opened this case.
See Order Lifting the Stay and Reinstating Case, ECF No. 7. Respondent Mary

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Berghuis subsequently filed an answer to the petition, see ECF No. 9, and
Petitioner filed a reply, see ECF No. 16.
Although Respondent asserts that some of Petitioner’s claims are
procedurally defaulted, “a procedural default, that is, a critical failure to comply
with state procedural law, is not a jurisdictional matter.” Trest v. Cain, 522 U.S.
87, 89 (1997). The Court, moreover, has determined that Petitioner’s claims lack
merit and that a procedural-default analysis would “add[] nothing but complexity
to the case.” Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). The Court
therefore proceeds to address the merits of Petitioner’s claims, using the following
standard of review.
II. Standard of Review
28 U.S.C. § 2254(d) 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

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(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 proceedings.

28 U.S.C. § 2254(d). Additionally, this Court must presume the correctness of
state court factual determinations. 28 U.S.C. § 2254(e)(1).
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. Rather, that application must also be unreasonable.” Id. at 410-11.
III. Analysis
A. Hearsay
Petitioner alleges that the trial court erred reversibly by admitting Janet
Sylvester’s testimony that, about two weeks before Duberg was discovered

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missing, Duberg told her that she was afraid Petitioner was going to kill her. (Trial
Tr. Vol. IV, at 55-56, June 10, 2010.) Petitioner claims that this was prejudicial
hearsay, which deprived him of a defense and his right to due process because he
could not cross-examine Duberg. The Michigan Court of Appeals reviewed this
claim for “plain error” because Petitioner did not preserve the claim for appellate
review by objecting to the out-of-court statement in the trial court. The Court of
Appeals then concluded that Petitioner failed to establish plain error because
Duberg’s statement was relevant to the question of whether she had provoked
Petitioner, as he claimed. The Court of Appeals also stated that
[e]ven if the admission of Duberg’s out-of-court statement constituted
plain error, defendant fails to carry the burden that the error
prejudiced him, i.e., that the error affected the outcome of the
proceedings. Given all the evidence concerning the relationship of
defendant and Duberg, which indicated defendant’s jealousy and
discord between the two, and the evidence that Duberg died from
ligature strangulation, we cannot conclude that the error, if there was
error, affected the outcome of defendant’s trial.
Susalla, 2011 WL 5008586, at *3 n.2 (internal citations omitted).
This Court finds no merit in Petitioner’s hearsay claim because it is based on
the Michigan Rules of Evidence. “To the extent that any testimony and comments
violated Michigan’s rules of evidence, such errors are not cognizable on federal
habeas review.” Hall v. Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009). “In
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conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.” Estelle
v. McGuire, 502 U.S. 62, 68 (1991).
Petitioner’s claim lacks merit even if it were construed as one brought under
the Confrontation Clause of the United States Constitution, which guarantees the
defendant in a criminal prosecution “the right . . . to be confronted with the
witnesses against him.” U.S. CONST. amend. VI. “The Amendment contemplates
that a witness who makes testimonial statements admitted against a defendant will
ordinarily be present at trial for cross-examination, and that if the witness is
unavailable, [her] prior testimony will be introduced only if the defendant had a
prior opportunity to cross-examine [her].” Giles v. California, 554 U.S. 353, 358
(2008) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). In other words,
“[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what
the common law required: unavailability and a prior opportunity for crossexamination.” Crawford, 541 U.S. at 68.
The term “testimonial” “applies at a minimum to prior testimony at a
preliminary hearing, before a grand jury, or at a former trial; and to police
interrogations.” Id. Consistent with Giles and Crawford, as well as, Davis v.

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Washington, 547 U.S. 813, 822 (2006), “ ‘statements to friends and neighbors
about abuse and intimidation’ allegedly inflicted by [the petitioner] are
nontestimonial statements and are not subject to the Confrontation Clause.” Doan
v. Carter, 548 F.3d 449, 458 (6th Cir. 2008).
Duberg made the contested statement about Petitioner to a friend. Thus, to
the extent Petitioner raises his claim under the Confrontation Clause, his claim
lacks merit, because Duberg’s statement is not subject to the Confrontation Clause.
B. Prior Violent Acts
Petitioner alleges next that the trial court erred reversibly and deprived him
of a fair trial by admitting evidence of his prior acts of domestic violence and by
refusing to instruct the jury on how to use the evidence. The evidence consisted of
testimony that Petitioner: beat his sister, giving her a bloody nose and a black eye
in 2005 (Trial Tr. Vol. III, at 85-92, June 9, 2010); punched his estranged wife in
the face four or five times (id. at 95-99); and struck a former girlfriend on the head
with a tire iron (Trial Tr. Vol. IV, at 16-18, June 10, 2010). Petitioner asserts that
this propensity evidence may have tainted the jurors’ perception of him and
persuaded them that he was a bad man who deserved punishment.

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The trial court determined that evidence of Petitioner’s other acts of
domestic violence was admissible under Mich. Comp. Laws § 768.27b(1). Section
768.27b(1) provides that, except when an act occurred more than ten years before
the charged offense,
in a criminal action in which the defendant is accused of an offense
involving domestic violence, evidence of the defendant’s commission
of other acts of domestic violence is admissible for any purpose for
which it is relevant, if it is not otherwise excluded under Michigan
rule of evidence 403.
The trial court noted that both the charged offense and the “prior acts”
evidence sought to be admitted involved domestic violence. The court concluded
that the “prior acts” evidence was admissible under the Michigan Rules of
Evidence, because the evidence was offered to establish Petitioner’s intent,
common plan, or scheme and the absence of mistake or accident. The trial court
stated that the evidence was relevant to those issues and that the probative value of
the evidence was not outweighed by the danger of unfair prejudice. See People v.
Susalla, No. 09-228601-FC, Op. and Order (Oakland Cty. Cir. Ct. May 17, 2010).
The Michigan Court of Appeals agreed that the “prior acts” evidence was
admissible under § 768.27b and that Michigan Rule of Evidence 403, which allows
relevant evidence to be excluded if its probative value is substantially outweighed

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by unfair prejudice, did not preclude admission of the evidence. The Court of
Appeals stated that, while the evidence was prejudicial, it did not prevent the jury
from weighing all the evidence to determine whether Petitioner premeditated and
deliberated the murder. The Court of Appeals concluded that the trial court did not
abuse its discretion in admitting evidence of Petitioner’s prior acts of domestic
violence and in denying Petitioner’s request for a limiting jury instruction.
Errors in the application of state law, especially rulings in the admission or
exclusion of evidence, usually are not questioned in a federal habeas corpus
proceeding. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting
Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988)). A state trial court’s
evidentiary error does not rise to the level of a federal constitutional claim
warranting habeas corpus relief “unless the error renders the proceeding so
fundamentally unfair as to deprive the petitioner of due process under the
Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004)
(citing McGuire, 502 U.S. at 69-70).
Evidence of Petitioner’s prior acts of domestic violence was damaging
evidence, but it was not fundamentally unfair for a couple of reasons. First, §
768.27b permits the admission of evidence regarding other acts of domestic

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violence for any relevant purpose, including “to show a defendant’s character or
propensity to commit the same act.” People v. Railer, 288 Mich. App. 213, 219–
20, 792 N.W.2d 776, 780 (2010) (citing People v. Schultz, 278 Mich. App. 776,
778, 754 N.W.2d 925 (2008)). Second, testimony about Petitioner’s prior acts was
not any more graphic or violent than testimony about the injuries which Petitioner
inflicted on Duberg.
Furthermore, “[t]here is no clearly established Supreme Court precedent
which holds that a state violates due process by permitting propensity evidence in
the form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.
2003). Consequently, “there is no Supreme Court precedent that the trial court’s
decision could be deemed ‘contrary to’ under AEDPA,” id. at 513, and habeas
relief is not warranted on Petitioner’s evidentiary claim.
C. The Trial Court’s Jurisdiction
Petitioner alleges that the state trial court lacked jurisdiction over him due to
three errors: (1) the felony complaint and felony warrant were authorized by an
assistant prosecutor instead of the county prosecutor, as required by state law; (2)
the felony complaint lacked sufficient information about the crime to establish
probable cause to issue a felony warrant; and (3) the trial court arraigned him

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before the prosecutor filed the criminal information.2 Petitioner argues that, as a
result of these jurisdictional defects, all subsequent proceedings in his case were
invalid and he is entitled to immediate release from custody.
The trial court addressed these issues during the post-conviction proceedings
and concluded that: (1) assistant prosecutors have authority under state law to
perform the duties of the prosecuting attorney, when necessary; (2) allegations in
the complaint that Petitioner killed the victim with premeditation and deliberation
were sufficient for a finding of reasonable cause to issue an arrest warrant; and (3)
although the prosecutor violated Michigan Court Rule 6.112(C) by failing to file
the information in a timely manner, Petitioner did not make a timely objection to
the error and did not shown any prejudice from the error.
This Court finds no merit in Petitioner’s jurisdictional claims because they
allege violations of state law. “A federal court may not issue the writ on the basis
of a perceived error of state law,” Pulley v. Harris, 465 U.S. 37, 41 (1984), and a
determination of whether the state trial court was “vested with jurisdiction under
state law is a function of the state courts, not the federal judiciary.” Wills v.
Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976).
2

In Michigan, “[a] prosecution must be based on an information or an indictment,” Mich. Ct.
Rule 6.112(B), and “[t]he prosecutor must file the information or indictment on or before the
date set for the arraignment.” Mich. Ct. Rule 6.112(C).

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D. The Jury Instructions
Petitioner alleges that the trial court failed to give proper and complete jury
instructions before the taking of evidence, during trial, and after the close of
proofs. Specifically, Petitioner contends that the trial court failed to read the
statute for the charged crime, failed to instruct the jury on the law and on the
elements of the crime before any evidence was taken, and failed to re-read the
information at the close of the proofs. Petitioner contends that these omissions
allowed the jury to speculate on whether the prosecution had met its burden of
proof.
The trial court determined on post-conviction review that Petitioner had
failed to demonstrate good cause for not raising his claim on appeal and actual
prejudice from the alleged errors. The trial court concluded that Petitioner did not
meet his burden of proving entitlement to relief from judgment.
1. Clearly Established Federal Law
The only question on habeas review of jury instructions is whether the ailing
instructions infected the entire trial with such unfairness as to deprive the petitioner
of due process. McGuire, 502 U.S. at 72, 75. In other words, “[t]o warrant habeas
relief, ‘jury instructions must not only have been erroneous, but also, taken as a

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whole, so infirm that they rendered the entire trial fundamentally unfair.’ ” Buell
v. Mitchell, 274 F.3d 337, 355 (6th Cir. 2001) (quoting Scott v. Mitchell, 209 F.3d
854, 882 (6th Cir. 2000)). “An omission, or an incomplete instruction, is less
likely to be prejudicial than a misstatement of the law.” Henderson v. Kibbe, 431
U.S. 145, 155 (1977).
2. Application
Petitioner has not cited any Supreme Court decision that requires a trial
court to read the controlling statute to the jury or to instruct the jury on the
elements of the crime before any evidence is admitted. And Petitioner’s
allegations that the trial court violated state law lack merit because “federal habeas
corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764,
780 (1990).
Furthermore, the trial court did inform the jury of the charge during voir
dire. The trial court also asked the prosecutor to read the information, which stated
that Petitioner was charged with deliberately murdering Duberg with premeditation
on or about May 22, 2009 through May 24, 2009. (Trial Tr. Vol. I, at 26, 30-31,
185, 189-90, June 7, 2010.) At the close of the proofs, the trial court informed the
jury once again that Petitioner was charged with first-degree premeditated murder.

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The trial court then read the elements of the crime and explained the concepts of
premeditation and deliberation. The court also read the elements of the lesserincluded offense of second-degree murder and explained that the prosecutor
carried the burden of proving all the elements of the crime beyond a reasonable
doubt. (Trial Tr. Vol. VI, at 41, 50-52, June 14, 2010.) The jury was permitted to
take a written copy of the trial court’s instructions into the jury room with them for
their use during deliberations. (Id. at 55.)
Petitioner had no objections to the instructions as read to the jury, and the
jurors had no questions for the trial court during their deliberations. In fact, they
reached their verdict in fifty-three minutes. (Id. at 57.)
Petitioner has failed to establish that the trial court’s jury instructions were
so infirm as to render his trial fundamentally unfair. The Court therefore declines
to grant the writ on the basis of Petitioner’s challenge to the jury instructions.
E. The Lack of a Competency Hearing
The fifth habeas claim alleges that the trial court violated state law and
deprived Petitioner of a fair trial and due process by failing to conduct a hearing to
determine whether Petitioner was competent to stand trial. Petitioner asserts that
this was a jurisdictional defect, which resulted in a structural error, because his

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mental illness rendered him unable to assist his attorney in his defense. The trial
court considered this claim during the post-conviction proceedings and rejected it,
because Petitioner failed to show good cause for not raising the issue on appeal and
actual prejudice from the alleged error.
Michigan law requires state courts to hold a competency hearing after
receiving a competency report. See Mich. Comp. Laws § 330.2030(1). But the
contention that the trial court violated this statute is not a basis for habeas relief,
because “federal habeas corpus relief does not lie for errors of state law,” Lewis v.
Jeffers, 497 U.S. at 780, and “a ‘mere error of state law’ is not a denial of due
process.” Swarthout v. Cooke, 562 U.S. 216, 222 (2011) (quoting Engle v. Isaac,
456 U.S. 107, 121 n. 21 (1982)). Although the Supreme Court has “repeatedly and
consistently recognized that ‘the criminal trial of an incompetent defendant
violates due process,’ ” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996), “a
competency determination is necessary only when a court has reason to doubt the
defendant’s competence.” Godinez v. Moran, 509 U.S. 389, 401 n.13 (1993).
Stated differently, a trial court’s failure to inquire into a defendant’s competence
violates the constitutional right to a fair trial only when the evidence raises a bona

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fide doubt about the defendant’s competence to stand trial. Pate v. Robinson, 383
U.S. 375, 385 (1966).
The record before the Court indicates that Petitioner was evaluated for
criminal responsibility at the Center For Forensic Psychiatry in Ann Arbor,
Michigan. The psychologist’s conclusion after interviewing Petitioner and
reviewing relevant records was that Petitioner did not suffer from mental illness or
mental retardation at the time of the crime and that his actions evidenced
forethought, planning, and knowledgeable execution. See Center for Forensic
Psychiatry Report, at 9-11, ECF No. 14-1, Pg ID 1098-1100 (sealed). On the
basis of the psychiatric report, the prosecutor and defense counsel stipulated at the
preliminary examination that Petitioner was competent to stand trial. (Prelim.
Examination Tr., Vol. II, at 72-73, Sept. 16, 2009), ECF No. 11-3, Pg ID 285-86.
At a motion hearing about a month later, defense counsel requested, and was
granted, permission to hire a psychiatrist to conduct an independent examination.
Defense counsel pointed out that Petitioner had a history of psychiatric treatment
and medication, that some witnesses at the preliminary examination had said
Petitioner may have been crazy, and that Petitioner was being housed in a section
of the jail reserved for people who had emotional problems, needed a safe place, or

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had threatened suicide. (Mot. Hr’g at 5-6, Oct. 14, 2009), ECF No. 11-5, Pg ID
371-72.
An independent psychiatrist subsequently evaluated Petitioner and
concluded in a thirteen-page report dated October 31, 2009, that Petitioner was
competent to stand trial and was not insane at the time of the crime. The
psychiatrist described Petitioner as
alert, fully oriented and not demonstrating any degree of impairment
in his memory or judgment which would interfere with his ability to
participate in a trial. He has had considerable experience with the
justice system and understands the role of the judge, attorneys, and
other officers of the court. He understands that if found guilty he will
face remand. He did not present evidence of acute disturbance of
thinking, mood or other mental illness which would interfere at this
time with his ability to understand the workings of a court. He is not
mentally retarded. He is capable of reviewing documents presented to
him. He can assist his attorney, and [is] competent to stand trial.
Independent Psychiatric Examination, ECF No. 14-2, at 13, Pg ID 1113 (sealed).
The transcript of trial, moreover, supports the finding that Petitioner was
competent to stand trial. He testified coherently at trial and demonstrated an
ability to understand the attorneys’ questions3 and to respond appropriately.
Because the record fails to establish a bona fide doubt as to Petitioner’s

3

The direct, cross, re-direct, and re-cross examinations cover approximately twenty-seven pages
of transcript.

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competence, the lack of a formal competency hearing did not deprive Petitioner of
his constitutional right to a fair trial.
F. The Trial Judge
Petitioner asserts that the trial judge acquiesced control of the proceedings to
the prosecutor and was biased against him. In support of this claim, Petitioner
alleges that the trial court arraigned him without first having acquired jurisdiction
over him, failed to read complete jury instructions, did not conduct a competency
hearing or remand the case to the state district court for a hearing, and stated at
sentencing that Petitioner was not fit to live in society.
The trial court pointed out on post-conviction review that Petitioner was not
prejudiced by the premature arraignment or by the court’s failure to hold a
competency hearing and that Petitioner had not pointed to an error in the jury
instructions. Therefore, according to the court, Petitioner failed to show that the
court did not control the proceedings.
1. Clearly Established Federal Law
Trial judges are not mere moderators of court proceedings; they must govern
“the trial for the purpose of assuring its proper conduct and of determining
questions of law.” Quercia v. United States, 289 U.S. 466, 469 (1933). “If truth

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and fairness are not to be sacrificed, the judge must exert substantial control over
the proceedings.” Geders v. United States, 425 U.S. 80, 87 (1976). The Due
Process Clause, moreover, “requires a ‘fair trial in a fair tribunal,’ before a judge
with no actual bias against the defendant or interest in the outcome of his particular
case.” Bracy v. Gramley, 520 U.S. 899, 904–05 (1997) (quoting Withrow v.
Larkin, 421 U.S. 35, 46 (1975)).
2. Application
The record does not support Petitioner’s claim that the trial court failed to
control the proceedings or that the court acquiesced control to the prosecutor. The
trial court performed the usual duties of a trial court by conducting voir dire,
giving preliminary jury instructions, ruling on evidentiary issues and objections,
exerting control over the conduct of the proceedings, reading the charge to the jury,
and accepting the jury’s verdict.
Although the trial court arraigned Petitioner before the prosecutor filed the
information, the premature arraignment apparently was an oversight, not
acquiescence of control to the prosecutor. Furthermore, the error was harmless,
because Petitioner acknowledged receipt of the information, waived a formal

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reading of it, and stood moot to the charge. (Arraignment Tr., at 3, Sept. 29,
2009), ECF No. 11-4, Pg ID 364.
The failure to hold a competency hearing also did not amount to acquiescing
control of the proceedings or prejudicial error, because the parties stipulated that
Petitioner was competent, and Petitioner’s own expert subsequently concluded that
Petitioner was competent to stand trial. As for the jury instructions, they
accurately informed the jurors of the charge and the elements of the crime.
Defense counsel’s lack of any objection to the instructions as read to the jury is an
indication that the trial court did not acquiesce control of the jury instructions to
the prosecutor.
Petitioner also has failed to show that the trial court was biased against him.
To prevail on his judicial bias claim, Petitioner must show “there was bias, or such
a likelihood of bias or an appearance of bias that the judge was unable to hold the
balance between vindicating the interests of the court and the interests of the
accused.” Ungar v. Sarafite, 376 U.S. 575, 588 (1964).
At Petitioner’s sentencing, the trial court stated that the mandatory life
sentence was appropriate because Petitioner was not fit to live in society.

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(Sentencing Tr. at 6, July 6, 2010.) The trial court’s opinion in all likelihood was
formed on the basis of the facts established at trial.
Judicial opinions that are based on facts gleaned from the proceedings before
the court are not a basis for a claim of bias unless the opinions “display a deepseated favoritism or antagonism that would make fair judgment impossible.”
Liteky v. United States, 510 U.S. 540, 555 (1994). The trial court did not display
any deep-seated antagonism toward Petitioner during the trial, and the life sentence
that the court imposed was mandatory under state law. See Mich. Comp. Laws §
750.316(1) (providing that a person who commits first-degree murder “shall be
punished by imprisonment for life without eligibility for parole”). Thus, Petitioner
has failed to show that the trial court was biased. He also has failed to show that
the trial court acquiesced control of the proceedings to the prosecutor.
G. The Prosecutor
Petitioner argues next that the prosecutor failed to protect his rights and
denied him his right to a fair trial. Specifically, Petitioner claims that the
prosecutor failed to object to the jurisdictional defects in the case, remained silent
when the trial court omitted jury instructions on the elements of the crime,

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stipulated to the findings in the forensic report, and sat idly by when the trial court
acquiesced control of the proceedings.
1. Clearly Established Federal Law
The Supreme Court has stated that “[t]he responsibility of the prosecutor as
a representative of the public . . . requires him [or her] to be sensitive to the due
process rights of a defendant to a fair trial.” Gannett Co., Inc. v. DePasquale, 443
U.S. 368, 384 n.12 (1979). Nevertheless,
[w]hile prosecutors play multiple roles in our court system, none
implicates a duty to protect a prisoner in the courtroom setting.
Prosecutors present the State’s case as advocates and also function as
investigators or administrators. See Imbler v. Pachtman, 424 U.S.
409, 427–431, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (recognizing these
varying roles in according absolute immunity for § 1983 damage
claims). But no court has held that prosecutors have any duty to
protect prisoners as part of their duties, either expressly or by
implication.
Syzak v. Dammon, No. 14-10245, 2014 WL 2864458, at *2 (E.D. Mich. June 24,
2014) (unpublished).
Furthermore, “[c]laims of prosecutorial misconduct are reviewed
deferentially” in a habeas case. Millender v. Adams, 376 F.3d 520, 528 (6th Cir.
2004) (citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). The relevant
question is whether the prosecutor’s conduct infected the trial with such unfairness

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as to make the resulting conviction a denial of due process. Darden v. Wainwright,
477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637
(1974)). “In deciding whether prosecutorial misconduct mandates that habeas
relief be granted, the Court must apply the harmless error standard.” Pritchett v.
Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (citing Eberhardt v. Bordenkircher, 605
F.2d 275 (6th Cir. 1979)).
B. Application
Petitioner blames the prosecutor for failing to object to jurisdictional defects
in his case, but the trial court determined on post-conviction review that two of the
claimed errors were not jurisdictional defects. The trial court noted that, contrary
to Petitioner’s allegations, the assistant prosecutor was authorized to initiate the
felony complaint and warrant and that the complaint contained sufficient
allegations to support a finding of reasonable cause to issue an arrest warrant. The
state court’s interpretation of state law binds this Court, Bradshaw v. Richey, 546
U.S. 74, 76 (2005), and because there were no jurisdictional defects, the prosecutor
did not commit misconduct by failing to object to the pretrial proceedings.
The trial court agreed that the prosecutor violated Michigan Court Rule
6.112(C) by failing to file a timely information. However, as pointed out above in

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section III.F.2. of this opinion, Petitioner did not object at the time. In fact, he
acknowledged receipt of the information, waived a formal reading of it, and stood
moot to the charge. Under the circumstances, the prosecutor’s error was harmless.
Petitioner alleges that the prosecutor should not have remained silent when
the trial court omitted jury instructions on the elements of the crime. But there was
no basis for objecting, as the trial court instructed the jury on the elements of the
crime, as well as, the elements of the lesser-included crime of second-degree
murder.
Next, Petitioner blames the prosecutor for stipulating to the findings in the
forensic report. The forensic examiner determined that Petitioner did not suffer
from mental illness or mental retardation at the time of the crime and that his
actions evidenced forethought, planning, and knowledgeable execution.
Petitioner’s own expert subsequently opined that Petitioner was competent to stand
trial. In light of these expert opinions, the prosecutor did not commit misconduct
by stipulating to Petitioner’s competence to stand trial.
Petitioner’s final allegation about the prosecutor is that the prosecutor did
not object when the trial court acquiesced control of the proceedings. However, as
previously explained, the trial court did not acquiesce control of the proceedings to

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the prosecutor. There was no basis for objecting to the trial court’s handling of the
case.
In conclusion, Petitioner has failed to show that the prosecutor’s conduct
infected the trial with such unfairness as to make the resulting conviction a denial
of due process. The Court therefore declines to grant relief on Petitioner’s
prosecutorial-misconduct claim.
H. Trial Counsel
Petitioner argues that he was denied his right to counsel because his trial
attorney did nothing to help him. More specifically, Petitioner alleges that trial
counsel refused to: prepare a trial strategy; investigate the case and interview
witnesses; challenge the trial court’s lack of subject-matter jurisdiction; and object
to the court’s failure to give complete jury instructions. Petitioner also asserts that
trial counsel aided the state district court judge by stipulating to the forensic report
and by failing to object to the lack of a competency hearing. Petitioner concludes
that trial counsel sabotaged the criminal proceedings, sided with the prosecutor,
and abandoned him. The state trial court disagreed with Petitioner’s allegations
and concluded on post-conviction review that trial counsel’s performance was not

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deficient and that Petitioner was not prejudiced by the allegedly deficient
performance.
1. Legal Framework
The record belies Petitioner’s allegation that he was constructively denied
counsel, such that prejudice must be presumed. Cf. United States v. Cronic, 466
U.S. 648, 658-59 (1984) (stating that, “if counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing, then there has been a denial of
Sixth Amendment rights that makes the adversary process itself presumptively
unreliable” and that no specific showing of prejudice is required in those
circumstances). Trial counsel actively represented Petitioner at the preliminary
examination and throughout the remainder of the trial court proceedings. Trial
counsel stipulated to the admission of some exhibits and objected to other exhibits;
he participated fully and effectively during voir dire, and he gave an honest and
direct opening statement in which he stressed the presumption of innocence and
the lack of any evidence of premeditation and deliberation. Trial counsel also
cross-examined prosecution witnesses, made appropriate objections (some, of
which, were sustained), and asked for a special jury instruction on how the jurors
should treat evidence of Petitioner’s other violent acts. At the close of the

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prosecution’s proofs, trial counsel moved for a directed verdict of acquittal. Trial
counsel cautioned Petitioner about testifying in his own behalf, and after Petitioner
testified, counsel requested a jury instruction on voluntary manslaughter. Trial
counsel subsequently made a closing argument in which he stressed the concept of
reasonable doubt and stated that Petitioner acted out of a rage or sudden impulse,
and not with premeditation and deliberation.
Although trial counsel conceded that Petitioner had killed Duberg, there was
overwhelming evidence that Petitioner murdered Duberg. Defense counsel took a
realistic approach to the case and tried to persuade the jury to find Petitioner guilty
of second-degree murder, which does not carry a mandatory sentence of life
imprisonment. In trying to mitigate the sentence, trial counsel’s “concession of
[Petitioner’s] guilt does not rank as a ‘fail[ure] to function in any meaningful sense
as the Government’s adversary.’ ” Florida v. Nixon, 543 U.S. 175, 190 (2004)
(quoting Cronic, 466 U.S. at 666). Thus, the “clearly established Federal law”
here is Strickland v. Washington, 466 U.S. 668 (1984), not Cronic.
Under Strickland, Petitioner must demonstrate “that counsel’s performance
was deficient” and “that the deficient performance prejudiced the defense.” Id. at
687. The “deficient performance” prong of this test “requires showing that counsel

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made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Id.
The “prejudice” prong “requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Id. There must be “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
at 694. “This does not require a showing that counsel’s actions ‘more likely than
not altered the outcome,’ ” but “[t]he likelihood of a different result must be
substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 111-12
(2011) (quoting Strickland, 466 U.S. at 693). In a habeas case, moreover,
review is “doubly deferential,” Cullen v. Pinholster, 563 U.S. 170,
190, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), because counsel is
“strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment,” Burt v. Titlow, 571 U.S. ––––, ––––, 134 S.Ct. 10, 17, 187
L.Ed.2d 348 (2013) (quoting Strickland v. Washington, 466 U.S. 668,
690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); internal quotation marks
omitted). In such circumstances, federal courts are to afford “both the
state court and the defense attorney the benefit of the doubt.” Burt,
supra, supra, at ––––, 134 S.Ct., at 13.
Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016).

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2. Application
Petitioner alleges that trial counsel refused to prepare a trial strategy,
investigate the case and interview witnesses, challenge the trial court’s lack of
subject-matter jurisdiction, and object to the trial court’s failure to give complete
jury instructions. When considering Petitioner’s contention that defense counsel
refused to prepare a trial strategy, it is important to remember that this was not a
“who done it” case. As a result, defense counsel acted reasonably in maintaining
that Petitioner was guilty of second-degree murder, not first-degree murder.
Contrary to Petitioner’s allegations, it appears that trial counsel fully
investigated the case and concluded from the overwhelming evidence against
Petitioner that trying to mitigate the penalty was the best way to help Petitioner.
Petitioner has not named any witnesses that trial counsel could have interviewed,
and he has not suggested a trial strategy that counsel should have used. In fact, he
chose to testify in his own behalf and adopted trial counsel’s strategy by admitting
that he killed Duberg, but denying that he acted with premeditation and
deliberation. This strategy was consistent with Petitioner’s own comment to his
mother that he intended to try to get the charge reduced.

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Trial counsel was not ineffective for failing to challenge the trial court’s
alleged lack of jurisdiction and alleged failure to instruct the jury on the elements
of the crime, because those issues lack merit. And even though trial counsel
stipulated to Petitioner’s competence to stand trial, Petitioner has not demonstrated
that he was incompetent. His own expert concluded that he was competent, and
his trial testimony confirmed that he was capable of understanding the proceedings
and of assisting his attorney.
In conclusion, trial counsel did not sabotage the criminal proceedings or
abandon Petitioner, and the trial court’s conclusion – that trial counsel was not
ineffective – was neither contrary to, nor an unreasonable application of,
Strickland. Petitioner, therefore, is not entitled to relief on the basis of his claim
about trial counsel.
I. Appellate Counsel
In his ninth and final claim, Petitioner asserts that appellate counsel
sabotaged his appeal of right by failing to raise all his issues in the appeal of right.
Petitioner also asserts that appellate counsel abandoned him by telling him that he
would have to research and draft any arguments that he wanted to submit in a pro
se supplemental brief. Petitioner claims that this resulted in a structural error

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which mandates his immediate release from custody because he is mentally ill, he
could not have known that his appellate attorney was ineffective, and he had no
choice but to trust his appellate attorney.
1. Clearly Established Federal Law
The proper standard for evaluating Petitioner’s claim about appellate counsel
is the one enunciated in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000).
To prevail on his claim, Petitioner must show (1) that his attorney acted
unreasonably in failing to discover and raise nonfrivolous issues on appeal and (2)
there is a reasonable probability that he would have prevailed on appeal if his
attorney had raised the issues. Id. (citing Strickland, 466 U.S. at 687-91, 694).
The Court is also mindful that
[i]ndigent appellants have no constitutional right to compel their
appointed attorneys to make every nonfrivolous argument on appeal.
Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821
(1985); Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77
L.Ed.2d 987 (1983). Tactical choices about which claims to raise on
appeal “are properly left to the sound professional judgment of
counsel. . . .” United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
In fact, “the hallmark of effective appellate advocacy” is the “process
of ‘winnowing out weaker arguments on appeal and focusing on’
those more likely to prevail.” Smith v. Murray, 477 U.S. 527, 536,
106 S.Ct. 2661, 91 L.Ed.2d 434 (1986) (quoting Barnes, 463 U.S. at
751–52, 103 S.Ct. 3308). “Generally, only when ignored issues are
clearly stronger than those presented, will the presumption of effective
assistance of counsel be overcome.” Gray v. Greer, 800 F.2d 644,
646 (7th Cir. 1986) (quoted in Monzo v. Edwards, 281 F.3d 568, 579
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Susalla v. Berghuis, No. 12-13818

(6th Cir. 2002)). “[A]n appellate advocate may deliver deficient
performance and prejudice a defendant by omitting a ‘dead-bang
winner,’ even though counsel may have presented strong but
unsuccessful claims on appeal.” United States v. Cook, 45 F.3d 388,
395 (10th Cir. 1995) (citing Page v. United States, 884 F.2d 300, 302
(7th Cir. 1989)). A “dead-bang winner” is an issue which was
obvious from the trial record, see e.g., Matire v. Wainwright, 811 F.2d
1430, 1438 (11th Cir. 1987) (counsel’s failure to raise issue which “
‘was obvious on the record, and must have leaped out upon even a
casual reading of [the] transcript’ was deficient performance), and one
which would have resulted in a reversal on appeal.” Id.
Meade v. Lavigne, 265 F. Supp. 2d 849, 869–70 (E.D. Mich. 2003).
2. Application
Contrary to Petitioner’s allegations, appellate counsel did not sabotage
Petitioner’s appeal, nor abandon Petitioner. The attorney raised two issues, which
Petitioner has included in his habeas petition. The failure to raise the remainder of
Petitioner’s habeas claims in the appeal of right did not amount to deficient
performance, because those claims are not “dead-bang winners” or clearly stronger
than the issues counsel did raise. The omitted issues lack merit for the reasons
given above.
Furthermore, there is not a reasonable probability that Petitioner would have
prevailed on appeal if his attorney had raised Petitioner’s claims about the trial
court’s jurisdiction, the jury instructions, the lack of a competency hearing, the trial

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court’s conduct, the prosecutor, and trial counsel. Therefore, the Court’s “inquiry
is at an end; by definition, appellate counsel cannot be ineffective for a failure to
raise an issue that lacks merit.” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001).
IV. Conclusion
Petitioner has failed to show that he is in custody in violation of his federal
constitutional rights. The Court, therefore, finds no merit in the claims which the
state courts rejected on procedural grounds. As for the issues that the state courts
adjudicated on the merits, the state courts’ decisions were not contrary to Supreme
Court precedent, unreasonable applications of Supreme Court precedent, or
unreasonable determinations of the facts. The state courts’ decisions certainly
were not so lacking in justification that there was an error beyond any possibility
for fairminded disagreement. The Court therefore denies Petitioner’s application
for the writ of habeas corpus.

V. Certificates of Appealability
and
Leave to Proceed In Forma Pauperis on Appeal
Petitioner may not appeal this Court’s opinion and order without a certificate
of appealability, 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1), and a
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Susalla v. Berghuis, No. 12-13818

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). “A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or 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) (citing Slack
v. McDaniel, 529 U.S. 473, 484 (2000)).
Reasonable jurists would not conclude that Petitioner’s claims deserve
encouragement to proceed further. The Court therefore declines to issue a
certificate of appealability. The Court nevertheless will allow Petitioner to proceed
in forma pauperis on appeal, because an appeal from this decision could be taken
in good faith. 28 U.S.C. § 1915(a)(3).

Dated: June 14, 2017

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on June 14, 2017, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

39