Jones v. Rivard

Filing 13

ORDER DENYING PETITIONER'S REQUEST FOR APPOINTMENT OF COUNSEL; DENYING THE PETITION FOR WRIT OF HABEAS CORPUS; GRANTING A CERTIFICATE OF APPEALABILITY AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STANLEY JONES,
Petitioner,
CASE NO. 12-14991
HONORABLE LAWRENCE P. ZATKOFF

v.
STEVE RIVARD,
Respondent.
_____________________________/

OPINION AND ORDER
DENYING PETITIONER’S REQUEST FOR APPOINTMENT OF COUNSEL
AND DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, BUT
GRANTING A CERTIFICATE OF APPEALABILITY AND LEAVE
TO PROCEED IN FORMA PAUPERIS ON APPEAL
This matter is pending before the Court on petitioner Stanley Jones’ pro se habeas corpus
petition under 28 U.S.C. § 2254. Jones is incarcerated at Chippewa Correctional Facility in
Kincheloe, Michigan. His habeas petition challenges two firearm convictions on the ground that his
trial attorney was ineffective for failing to request a jury instruction on self defense. Although
determining whether defense counsel was constitutionally ineffective is a close question, the Court
finds that the state appellate court’s ruling on the issue and its decision to affirm Jones’ conviction
were not unreasonable. Therefore, under the highly deferential standard applied to state court
decisions on federal habeas corpus review, the habeas petition must be denied.
I. Background
Jones was charged in Wayne County, Michigan with being a felon in possession of a firearm,
see Mich. Comp. Laws § 750.224f, and possessing a firearm during the commission of a felony
(felony firearm), second offense, see Mich. Comp. Laws § 750.227b(1). The charges arose from the

fatal shooting of Marcus Perry on April 2, 2009, in Detroit, Michigan. The record before the Court
indicates that Jones was not charged with a homicide because he and Perry exchanged gunfire during
the incident, and prosecutors thought they would be unable to prove that Jones did not act in self
defense. The prosecutor chose instead to charge Jones with the two firearm offenses.
Jones was tried before a jury in Wayne County Circuit Court where the evidence established
that,
[i]n March 2009, [Jones] saw Perry hit [Jones’] ex-girlfriend, Shantle Hayden, while
Perry and Hayden were arguing in front of [Jones’] house. When Perry realized that
[Jones] had observed the incident, Perry “flashed his gun” at [Jones]. [Jones] did not
confront Perry or call the police. Approximately three weeks later, on April 2, 2009,
Perry and Hayden were again arguing and shouting in the street while [Jones] was
in his driveway cleaning his car. According to [Jones’] statement to the police, he
went inside his house and retrieved a gun because Perry was armed with a gun.
[Jones] placed the gun in his waistband, returned outside, and continued cleaning his
car. Although the evidence differs regarding who fired the first shot, it is undisputed
that [Jones] and Perry thereafter engaged in a gunfight, during which [Jones] shot
Perry in the chest, killing him. After the shooting, [Jones] fled in his car. He turned
himself in to the police on April 21, 2009, and told the police that the gun was in the
trunk of his car, parked at the Motor City Casino. The police recovered the gun from
[Jones’] car at the casino.
People v. Jones, No. 297690, 2012 WL 164246, at *1 (Mich. Ct. App. Jan. 19, 2012).1
Jones did not testify or present any witnesses, but his videotaped statement to the police was
played for the jury. In his statement to the police, Jones said that he fired his gun in Perry’s
direction after he heard at least two gunshots.
Shantle Hayden also did not testify at trial. The primary evidence came from Perry’s
girlfriend, Asya Collins, who testified on direct examination by the prosecutor that Jones pulled a

1

This summary of the facts is supported by the record and is entitled to a presumption of
correctness because Petitioner has not rebutted the presumption with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
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gun from his side, shot it, and then chased Perry around his car. Collins claimed that she ducked
behind the car and heard about five more shots, but she did not know who was shooting. She was
sure, however, that Jones fired the first shot.
On cross-examination, Collins admitted that she lied to the police when she told them that
her boyfriend never fired any shots. She also admitted that her testimony during an investigative
hearing conducted by the prosecutor differed from her trial testimony. During the investigative
hearing, she said that she heard the first gunshot and that she did not see anybody pull the trigger
of a gun.
On March 17, 2010, the jury found Jones guilty, as charged, of felon in possession of a
firearm and felony firearm. The trial court sentenced Jones as a repeat offender to five years in
prison for the felony firearm conviction and to a consecutive term of six to twenty years for the
felon-in-possession conviction.
Jones raised his habeas claim on direct appeal from his convictions, arguing that defense
counsel’s failure to request a jury instruction on self-defense for the felon-in-possession charge
deprived him of his constitutional right to effective assistance of counsel. The Michigan Court of
Appeals initially remanded the case to the trial court so that Jones could file a motion for new trial.
The Court of Appeals retained jurisdiction, but ordered the trial court to make findings of fact and
a determination on the record. See People v. Jones, No. 297690 (Mich. Ct. App. Jan. 28, 2011), Pet.
for Writ of Habeas Corpus, App. A.
On remand, the trial court conducted an evidentiary hearing and decided to reverse Jones’
convictions and order a new trial. The trial court subsequently concluded that it had no authority
to grant a new trial because the Michigan Court of Appeals had retained jurisdiction. The trial court

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then signed an order stating that Jones had received ineffective assistance of counsel at trial. See
People v. Jones, No. 09-14002-01 (Wayne Cnty. Cir. Ct. Apr. 8, 2011), Pet. for Writ of Habeas
Corpus, App. C
The Michigan Court of Appeals subsequently vacated the trial court’s decision and affirmed
Jones’ convictions and sentences. See Jones, Mich. Ct. App. No. 297690, 2012 WL 164246. The
Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issue.
See People v. Jones, 493 Mich. 865; 820 N.W.2d 917 (2012) (table).
On November 9, 2012, Jones filed his habeas corpus petition, raising the same claim that he
presented to the state courts on direct appeal. The habeas petition includes a request for appointment
of counsel.
II. Standard of Review
“The statutory authority of federal courts to issue habeas corpus relief for persons in state
custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, __, 131 S. Ct. 770, 783 (2011).
Pursuant to § 2254, the Court may not grant a state prisoner’s application for the writ of habeas
corpus unless the state court’s adjudication of the prisoner’s 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).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court may grant
the writ if the state court arrives at a conclusion opposite to that reached by [the
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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. Under
the “unreasonable application” clause [of § 2254(d)(1)], a federal habeas court may
grant the writ if the state court identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably applies that principle to the facts
of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the Court for Part II).
“[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 411.
“AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,’
Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be given
the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v.
Lett, 559 U.S. 766, 773 (2010). “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.” Richter, 131 S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on his or her 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.
III. Analysis
A. Petitioner’s Claim and Argument
Jones alleges that he is entitled to a new trial, because defense counsel’s failure to request
a jury instruction on self defense for the felon-in-possession charge violated his constitutional right
to effective assistance of counsel. To support his claim, Jones points to (1) his admissions to the
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police that he possessed a handgun during the incident and shot the victim and (2) defense counsel’s
stipulation that Jones was previously convicted of a felony and was not eligible to possess a firearm.
(Trial Tr. Vol. I, 107, Mar. 15, 2010) In light of the stipulation and admissions, Petitioner maintains
that the only real issue was whether his actions were justified and, therefore, defense counsel should
have requested a jury instruction on self defense. Jones claims that, without the instruction, there
was no defense to the charges, and the jury lacked the option of finding him not guilty as a result
of acting in self defense.2
As further proof that defense counsel should have requested a jury instruction on self
defense, Jones notes that prosecutors elected not to charge him with a homicide because they did
not think they could prove beyond a reasonable doubt that he was not acting in self defense. See Pet.
for Writ of Habeas Corpus, App. B. Additionally, defense counsel apparently knew that Jones
wanted to assert a defense of self-defense, because Jones’ former attorney withdrew from the case
when Jones insisted on pursuing a defense of self-defense after being advised that the defense did
not apply to the facts in his case. Furthermore, defense counsel argued to the jury that Jones “had
a legitimate self-defense claim” and that Jones’ only options during the incident were to die from
Mr. Perry’s gunfire or to risk being charged with a crime. (Trial Tr. Vol. II, 55-57, Mar. 16, 2010.)
Petitioner argues that, despite this record, defense counsel declined to request a jury instruction on
self defense.

The jurors, moreover, wrote a note on the verdict form, stating:

Dear Judge Bill, this has been a very difficult decision for all twelve of us to make.
We request that you take into consideration when you sentence the circumstances

2

The Michigan criminal jury instruction on the use of deadly force in self defense states
that “[a] person has the right to use force or even take a life to defend [himself/herself] under
certain circumstances,” and “[i]f a person acts in lawful self-defense, that person’s actions are
justified and [he/she] is not guilty” of the charged crime. Mich. CJI 7.15(1).
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surrounding the incident.
(Trial Tr. Vol. III, 6, Mar. 17, 2010.) Jones states that the only reasonable interpretation of this note
was that the jury regretted not having the option of acquitting him on the basis of self defense.
Petitioner claims that, had the jury instruction been given, the jury likely would have reached a
different verdict.
Jones contends that the decision of the Michigan Court of Appeals is clearly erroneous and
that the Court of Appeals gave an impermissibly limited interpretation of the Self Defense Act and
the Michigan Supreme Court’s decision in People v. Dupree, 486 Mich. 693; 788 N.W.2d 399
(2010). Jones also contends that the Court of Appeals should have deferred to the state trial court’s
findings and conclusion
B. Clearly Established Federal Law
To prevail on his claim, Jones must show that his attorney’s “performance was deficient” and
“that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). “Unless a defendant makes both showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process that renders the result unreliable.” Id.
The “deficient performance” prong “requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id.
Judicial scrutiny of counsel’s performance must be highly deferential. It is
all too tempting for a defendant to second-guess counsel’s assistance after conviction
or adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133–134, 102 S.Ct.
1558, 1574–1575, 71 L.Ed.2d 783 (1982). A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
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evaluate the conduct from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance . . . .
Id. at 689.
The “prejudice” prong of the Strickland test “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. at 687. Jones
must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” 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.” Richter, 131 S. Ct. at 792 (quoting Strickland, 466 U.S. at
693).
“The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when
the two apply in tandem, review is ‘doubly’ so.” Id. at 788 (internal and end citations omitted).
“When § 2254(d) applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id.
C. The Relevant State Law
Jones’ claim must be viewed in light of the Michigan Self Defense Act and state court
decisions on the right to assert self defense in a case charging the defendant with being a felon in
possession of a firearm. The Self Defense Act, Mich. Comp. Laws § 780.971, et seq., provides in
relevant part that
(1) An individual who has not or is not engaged in the commission of a crime
at the time he or she uses deadly force may use deadly force against another
individual anywhere he or she has the legal right to be with no duty to retreat if . . .
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the following applies:
(a) The individual honestly and reasonably believes that the use of
deadly force is necessary to prevent the imminent death of or
imminent great bodily harm to himself or herself or to another
individual.
Mich. Comp. Laws § 780.972.
In People v. Dupree, 284 Mich. App. 89, 91-92; 771 N.W.2d 470, 473-74 (2009) (“Dupree
I”), a panel of the Michigan Court of Appeals held for the first time that a claim of self-defense
applies to a charge of felon in possession of a firearm. The Court of Appeals stated the purpose of
the felon-in-possession statute is “to ensure that those persons who are more likely to misuse
firearms do not maintain ready possession of them.” Id.., 284 Mich. App. at 106; 771 N.W.2d at
481. The Court of Appeals determined that “[t]his purpose would be severely undermined if former
felons were permitted to arm themselves whenever they happened to have some generalized fear of
being attacked.” Id. Continuing, the Court of Appeals stated that a defendant may raise a defense
of self defense to being a felon in possession of a firearm by introducing evidence from which the
jury could conclude all of the following:
(1) The defendant or another person was under an unlawful and immediate
threat that was sufficient to create in the mind of a reasonable person the fear of
death or serious bodily harm, and the threat actually caused a fear of death or serious
bodily harm in the mind of the defendant at the time of the possession of the firearm.
(2) The defendant did not recklessly or negligently place himself or herself
in a situation where he or she would be forced to engage in criminal conduct.
(3) The defendant had no reasonable legal alternative to taking possession,
that is, a chance to both refuse to take possession and also to avoid the threatened
harm.
(4) The defendant took possession to avoid the threatened harm, that is, there
was a direct causal relationship between the defendant’s criminal action and the
avoidance of the threatened harm.
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(5) The defendant terminated his or her possession at the earliest possible
opportunity once the danger had passed.
Id., 284 Mich. App. at 107-08, 771 N.W.2d at 482.
Following Jones’ trial, the Michigan Supreme Court affirmed the Court of Appeals decision
in Dupree I, holding “that the traditional common law affirmative defense of self defense may be
interposed to a charge of being a felon in possession of a firearm” if the defense is supported by
sufficient evidence. Dupree, 486 Mich. at 696-97; 788 N.W.2d at 401(“Dupree II”). The state
supreme court explained that the defense was available in cases where the defendant demonstrated
that “he honestly and reasonably believed that his life was in imminent danger and that it was
necessary for him to exercise force to protect himself.” Id., 486 Mich. at 697; 788 N.W.2d at 401.
D. Application
1. The Evidentiary Hearing and the Trial Court’s Ruling
At the post-conviction hearing in state court, defense counsel testified that his decision not
to request a jury instruction on self defense was based on his belief that Petitioner could not satisfy
the factors outlined in Dupree I. He did not think Jones satisfied the third factor, which requires
showing that there was no legal alternative to taking possession of a firearm. Defense counsel
pointed out that Jones could have gone in his house and stayed there; instead, he exited his house
with a gun. Defense counsel stated that, due to the restrictiveness of Dupree, he did not think he
could in good faith ask the trial court for an instruction on self defense or defense of another person.
He thought his request would be denied. (Mot. Hr’g, 6-7, 11-13, Mar. 18, 2001.)
Defense counsel admitted at the hearing that the self-defense instruction would have given
Jones a defense and that it would not have been detrimental to Jones’ case to have requested an
instruction on self defense. (Id. at 7.)

He also admitted that he knew the Wayne County
10

prosecutor’s office denied a warrant for a homicide charge on the basis that there was a plausible
claim of self defense. (Id. at 8-9.) He said that, if he had the opportunity to do things differently,
he would ask for a jury instruction on self defense. He stated that the jury instruction would have
given Jones a defense, and he thought that the Michigan Supreme Court broadened the defense in
Dupree II by stating that self defense was a common law right. (Id. at 14-15.)
No other witnesses testified at the evidentiary hearing, and, following oral arguments, the
trial court stated that it was taking into consideration the totality of the circumstances, including the
jury’s note to the trial court, the prosecutor’s memorandum about having to rebut a claim of self
defense, and the Dupree decision. The court ruled that Jones was entitled to a reversal of his
convictions and a new trial because defense counsel had deprived Jones of a possible defense. (Id.
at 38-39.)
2. The Reasonableness of the Michigan Court of Appeals Opinion
The Michigan Court of Appeals subsequently vacated the trial court’s decision and affirmed
Jones’ convictions because, in its opinion, defense counsel’s failure to request a jury instruction on
self defense did not constitute ineffective assistance of counsel. This Court agrees. Under Dupree
I and the Self Defense Act, a defendant may assert the defense of self defense if the defendant
reasonably believed that possession of a firearm and the use of deadly force was necessary to
prevent death or great bodily harm to himself or another individual. The evidence in this case
established that,
[Jones] possessed the firearm before any threat of imminent death or serious bodily
harm arose. [Jones] told the police that he saw Perry and Hayden arguing in front
of Perry’s house and that Perry had a gun. [Jones] told Hayden to leave Perry alone
and go home. [Jones] admitted that he went into his house and retrieved his gun
because he did not like the situation and thought Perry might “go crazy.” He stated
that he did not want to be “out there” and have Perry start shooting at him. [Jones]
11

admitted that Perry did not threaten him or say anything to him that day, but claimed
that he did not know what Perry was going to do since he had a gun and was arguing
with Hayden. By the time that [Jones] returned outside, Perry had gone inside his
house, and Hayden was arguing with Perry’s aunt before Hayden finally left. When
[Jones] was walking to get another towel to wipe down his car, he heard gunshots.
He claimed that he “couldn’t believe it.” He further stated that, at that point, he was
not concerned about Perry because he had no personal “beef” with Perry and the
argument was between Perry and Hayden and did not involve him.
Jones, 2012 WL 164246, at *3.3
Although Jones told Investigator Brooks that he felt threatened by Perry, the
Michigan Court of Appeals correctly noted that,
based on [Jones’] own version of the incident, he did not possess the firearm in
response to an imminent threat of death or serious bodily harm. Rather, he possessed
the gun because Perry and Hayden were fighting and he did not know what would
happen.
Id. at *4.
There also was no basis for concluding that Jones acted in defense of Hayden. He informed
Investigator Brooks that, although Hayden had approached him, she was not “telling on” Perry.
According to Jones, Hayden knew that he was not going to protect her, and she may have
approached him for money. Additionally, Asya Collins testified that Hayden walked away at the
beginning of the incident – when Collins and Perry first came out the house – as if she (Hayden)
knew what was about to happen. (Trial Tr. Vol. I, 121, Mar. 15, 2010.)
The Michigan Court of Appeals reasonably opined that Jones had a generalized fear of being
attacked, as opposed to an honest and reasonable belief that possession and use of a firearm was
necessary to prevent imminent death or great bodily harm. The Court of Appeals concluded that,

3

This evidence is supported by the DVD of Petitioner’s interview with Investigator
Latonya Brooks. See Dkt. #11. A videotape of the interview was played for Petitioner’s jury
during Investigator Brooks’ testimony. (Trial Tr. Vol. II, 47, Mar. 16, 2010.)
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because Jones was not entitled to a self-defense instruction under either Dupree I or the Self Defense
Act, defense counsel did not render ineffective assistance by failing to request the instruction.
Jones’ claim that the Michigan Court of Appeals misinterpreted or misapplied the Self
Defense Act or the Dupree decision 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. 764, 780, (1990). “[A] state
court’s interpretation of state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76
(2005). When “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).
3. Additional Considerations
Petitioner claims that defense counsel’s interpretation of the Michigan Court of Appeals
decision in Dupree I was too limited. Defense counsel acknowledged at the state evidentiary
hearing that the Michigan Supreme Court’s decision in Dupree II was not as restrictive as the
interpretation given by the Michigan Court of Appeals in Dupree I. But Dupree II was decided after
Jones’ trial. Consequently, defense counsel cannot be blamed for failing to assert self defense under
the allegedly broader interpretation of self defense given in Dupree II. Defense counsel was aware
of the law as it applied at the time, and he made a logical decision not to request an inapplicable jury
instruction.
The fact that defense counsel admittedly had nothing to lose by requesting a jury instruction
on self defense also is not a basis for granting habeas relief, because no Supreme Court decision
establishes a “nothing to lose” standard for evaluating ineffective-assistance-of-counsel claims.

13

Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). “Instead, such relief may be granted only if the
state-court decision unreasonably applied the more general standard for ineffective-assistance-ofcounsel claims established by Strickland . . . .” Id.
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Schriro [v.
Landrigan, 550 U.S. 465, 473 (2007)]. And, because the Strickland standard is a
general standard, a state court has even more latitude to reasonably determine that
a defendant has not satisfied that standard.
Id. at 123.
Self defense or defense of others was not a viable defense in this case, because Jones had a
reasonable alternative to possessing and using a firearm. He also lacked a reasonable belief that
possessing and using a firearm was necessary to prevent imminent death or great bodily harm to
himself or another person. Consequently, defense counsel’s failure to request a jury instruction on
self defense did not amount to deficient performance. The Supreme Court “has never required
defense counsel to pursue every claim or defense, regardless of its merit, viability, or realistic chance
for success,” Mirzayance, 556 U.S. at 123, and an attorney’s failure to make a meritless argument
“is neither professionally unreasonable nor prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th
Cir.), cert. denied, 134 S. Ct. 513 (2013).
“[E]ven a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Richter, 131 S. Ct. at 786 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)).
Jones has not shown that the state appellate court’s ruling on 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. The Court therefore denies the habeas
corpus petition and Jones’ request for appointment of counsel.
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IV. Certificate of Appealability and Leave to Proceed In Forma Pauperis on Appeal
Before a habeas petitioner may appeal a habeas court’s decision, a certificate of appealability
must issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). 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). “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)).
When, as here, a district court has rejected the constitutional claims on the merits, “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. “[A] claim can be debatable
even though every jurist of reason might agree, after the [certificate of appealability] has been
granted and the case has received full consideration, that [the] petitioner will not prevail.” MillerEl, 537 U.S. at 338.
Reasonable jurists could disagree with this Court’s resolution of Jones’ constitutional claim
or could conclude, at a minimum, that the issue deserves encouragement to proceed further. The
Court therefore grants a certificate of appealability. The Court also grants leave to proceed in forma
pauperis on appeal if Jones decides to appeal this decision, because an appeal could be taken in good
faith. 28 U.S.C. § 1915(a)(3).
V. Conclusion
Accordingly, IT IS HEREBY ORDERED that the petition for writ of habeas corpus is
DENIED.
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IT IS FURTHER ORDERED that a certificate of appealability is GRANTED.
IT IS FURTHER ORDERED that permission to proceed in forma pauperis on appeal is
GRANTED.
IT IS SO ORDERED.
S/Lawrence P. Zatkoff
Hon. Lawrence P. Zatkoff
United States District Judge
Dated: December 12, 2014

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