Henix v. Berghuis

Filing 13

OPINION and ORDER Denying 8 AMENDED 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 Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILLIAM CLYDE HENIX,
Petitioner,
v.

CASE NO. 13-13861
HONORABLE SEAN F. COX

DEWAYNE BURTON,
Respondent.
___________________________/
OPINION AND ORDER
DENYING THE AMENDED HABEAS CORPUS PETITION
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
BUT GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This matter is presently before the Court on petitioner William Clyde Henix’ pro se
amended petition for the writ of habeas corpus. The amended petition challenges Petitioner’s
plea-based convictions for witness intimidation, Mich. Comp. Laws § 750.122, and assault with
a dangerous weapon (felonious assault), Mich. Comp. Laws § 750.82. Petitioner alleges as
grounds for relief that (1) his no-contest plea was involuntary, (2) the prosecution failed to
ensure that his rights were protected, (3) the trial court failed to exercise control of the
proceedings at all times, (4) trial counsel sabotaged the proceedings and abandoned him, and (5)
appellate counsel sabotaged the appeal and abandoned him. Respondent Dewayne Burton argues
in an answer to the petition filed through counsel that the state courts reasonably rejected
Petitioner’s claims. The Court agrees that Petitioner’s claims do not warrant habeas relief.
Accordingly, the petition will be denied.

I. Background
A. The Facts and Preliminary Proceedings
Petitioner was charged with two counts of felonious assault and two counts of witness
intimidation. The charges arose from an incident that occurred on May 25, 2010.
Barbara Carter testified at the preliminary examination in state district court that, on May
25, 2010, she and her daughter Shakeisha Carter went to the courthouse in Saginaw County,
Michigan because Petitioner was scheduled for trial that day on a domestic violence charge
involving Shakeisha.

When Shakeisha refused to go in the courtroom to testify against

Petitioner, the matter was adjourned. Shakeisha and Barbara then left the courthouse and
proceeded to go home in Mrs. Carter’s car.
On their way home, Shakeisha noticed Petitioner and said, “There he go[es].” Barbara
was driving at the time, and she subsequently saw Petitioner in her rear-view mirror. Petitioner
was driving a pick-up truck, which he rammed three times into the back of Mrs. Carter’s car.
Petitioner’s actions caused Mrs. Carter’s car to jump two curbs, hit a pole and a tree, and land in
someone’s yard. The bumper came off her car, and the two front tires went flat. Petitioner drove
away after the collision. (Prelim. Examination Tr. at 8-22, June 10, 2010.)
Shakeisha Carter refused to testify at the preliminary examination.

(Id. at 23-24.)

However, a witness to the collision (Kaylee Groulx) corroborated Mrs. Carter’s testimony, even
though she was unable to identify the driver of the truck. (Id. at 4-8).
Near the conclusion of Mrs. Carter’s testimony, Petitioner’s first attorney, Joseph H.
Luplow (“Luplow”), moved to withdraw as counsel for Petitioner on the basis that he was with
Petitioner when the felonious assaults and witness intimidation allegedly occurred. The state
district court denied the motion after Luplow admitted that the assaults occurred after the
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scheduled court appearance where Luplow represented Petitioner and that he (Luplow) was not
with Petitioner at that time. (Id. at 20.) At a subsequent hearing, however, the state trial court
permitted Luplow to withdraw as attorney for Petitioner on the basis that Luplow was an alibi
witness for Petitioner. (Hr’g Tr. at 3-5, July 15, 2010.)
The trial court then appointed William D. White (“White”) to represent Petitioner. On
September 14, 2010, Petitioner complained at a court hearing that there was a breakdown in his
relationship with White and that White was not representing him properly. The trial court denied
the motion on the basis that Petitioner had not shown good cause for substitution of counsel.
(Hr’g Tr. at 3-13, Sept. 14, 2010.)
On April 5, 2011, the date set for trial, Petitioner stated that he did not want White
representing him because White had called him a foul name. White denied the accusation, but
the trial court permitted him to withdraw as counsel for Petitioner. The court then adjourned the
trial and promised to appoint a different attorney for Petitioner. (Hr’g Tr. at 3-10, Apr. 5, 2011.)
The trial court subsequently appointed William R. Cowdry (“Cowdry”) to represent
Petitioner. On September 20, 2011, Petitioner rejected a plea offer and stated that he wanted to
fire Cowdry, because he had been unaware that Cowdry was his attorney and because he did not
feel safe going to trial with Cowdry. The trial court stated that the matter had begun to look like
a revolving door, but that the court would appoint one final attorney for Petitioner. (Hr’g at 3-9,
Sept. 20, 2011.)
The trial court subsequently appointed attorney Eldor R. Herrmann (“Herrmann”) to
represent Petitioner. At a hearing held on December 6, 2011, Petitioner stated that he wanted to
fire Herrmann because he had not heard from Herrmann and because they had met for the first

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time that day. The trial court refused to remove Herrmann from the case, but moved the trial
date to January 18, 2012. (Hr’g Tr. at 3-9, Dec. 6, 2011.)
B. The Plea, Sentence, and Direct Appeal
On January 18, 2012, Petitioner pleaded no contest in Saginaw County Circuit Court to
two counts of witness intimidation and two counts of felonious assault. There was no plea
bargain, but the trial court agreed to sentence Petitioner to the middle of the sentencing
guidelines and to make the sentence run concurrently with the sentence that Petitioner was
serving in another case. (Plea Tr. at 22, Jan. 18, 2012.)
Petitioner subsequently moved to withdraw his plea on the basis that his plea was
involuntary.

The trial court denied Petitioner’s motion and then sentenced Petitioner to

imprisonment for 150 months (twelve and a half years) to twenty-five years for each of the
witness-intimidation convictions. The court sentenced Petitioner to a concurrent term of 120
months (ten years) to fifteen years for each of the felonious-assault convictions. (Sentencing Tr.
at 3-7, Feb. 28, 2012.)
On appeal, Petitioner argued that the trial court abused its discretion when it denied his
motion to withdraw his plea. The Michigan Court of Appeals denied leave to appeal “for lack of
merit in the grounds presented.” People v. Henix, No. 312957 (Mich. Ct. App. Nov. 20, 2012).
On May 28, 2013, the Michigan Supreme Court denied leave to appeal because it was not
persuaded to review the issue. See People v. Henix, 494 Mich. 855; 830 N.W.2d 405 (2013)
(table).

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C. The Initial Habeas Petition, Post-Conviction Proceedings in State Court,
and Amended Habeas Petition
On September 10, 2013, Petitioner filed his first petition for the writ of habeas corpus and
a motion to hold the petition in abeyance while he pursued additional state remedies. (Dkt. 1 and
4). His sole habeas claim was that the state trial court abused its discretion when it denied his
motion to withdraw his no-contest plea. On October 24, 2013, the Court granted Petitioner’s
motion for a stay and closed this case for administrative purposes. (Dkt. 6).
Petitioner then filed a motion for relief from judgment in the state trial court. He alleged
that (1) the prosecution failed to ensure that his rights were protected, (2) the trial court failed to
control the proceedings at all times, (3) trial counsel sabotaged the criminal proceedings and then
abandoned him, and (4) appellate counsel sabotaged his appeal and then abandoned him. The
state trial court denied Petitioner’s motion on the basis that Petitioner had failed to meet his
burden of showing entitlement to relief under Michigan Court Rule 6.508(D).

The court also

noted that Petitioner had understood the terms of the plea agreement and entered his plea
knowingly and understandingly. See Opinion & Order, No. 10-34370-FH-3 (Saginaw Cty. Cir.
Ct., Jan. 16, 2014). Petitioner appealed the trial court’s decision, but both the Michigan Court of
Appeals and the Michigan Supreme Court denied leave to appeal for failure to meet the burden
of establishing entitlement to relief under Rule 6.508(D). See People v. Henix, No. 320656
(Mich. Ct. App. June 27, 2014); People v. Henix, 497 Mich. 953; 858 N.W.2d 55 (2015) (table).
On February 24, 2015, Petitioner filed an amended pro se petition for the writ of habeas
corpus (Dkt. 8) and a motion to re-open this case (Dkt. 7). The Court granted the motion to reopen this case (Dkt. 9), and on December 18, 2015, the State filed an answer to the petition (Dkt.
11). The case is now ready for an adjudication of Petitioner’s claims.

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II. Standard of Review
A federal habeas court may grant relief only if the state court’s adjudication of the
petitioner’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).
On direct appeal, the Michigan Court of Appeals denied Petitioner’s first claim
(involuntary plea) “for lack of merit in the grounds presented,” Henix, No. 312957 (Mich. Ct.
App. Nov. 20, 2012), and the Michigan Supreme Court denied leave to appeal because it was not
persuaded to review the issue. These brief orders were decisions on the merits. Werth v. Bell,
692 F.3d 486, 493 (6th Cir. 2012).
Petitioner presented habeas claims two through five in his post-conviction motion and on
appeal from the trial court’s decision on his motion. All three state courts denied relief under
Michigan Court Rule 6.508(D) for failure to carry the burden of establishing entitlement to relief.
“Rule 6.508(D) has both a procedural and a substantive component, and demonstrates that
citations to a defendant’s failure to meet the burden of establishing entitlement to relief can refer
to a defendant’s failure to meet that burden on the merits.” Guilmette v. Howes, 624 F.3d 286,
291 (6th Cir. 2010).
None of the state courts in this case applied the procedural-default rule set forth in Rule
6.508(D)(3) when they addressed Petitioner’s second, third, fourth, and fifth claims. Instead,
they simply cited Rule 6.508(D) and stated that Petitioner had failed to establish entitlement to

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relief. Additionally, the trial court determined in its order denying Petitioner’s post-conviction
motion that Petitioner entered his plea knowingly and understandingly. The Court therefore
presumes, in the absence of any indication or state-law procedural principles to the contrary, that
the state courts adjudicated habeas claims two through five on the merits. Harrington v. Richter,
562 U.S. 86, 99 (2011); Werth, 692 F.3d at 493. Thus, the deference due to state-court decisions
under § 2254(d) applies here. To obtain the writ of habeas corpus, Petitioner must show that the
state courts’ rulings on his claims were “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Richter, 562 U.S. at 103.
III. Discussion
A. Denial of the Motion to Withdraw the Plea
Petitioner alleges first that the trial court abused its discretion when it denied his motion
to withdraw his plea. Petitioner contends that his no-contest plea was not voluntary under
Michigan Court Rule 6.302(C) because his trial attorney told him that (1) the attorney did not
intend to investigate the case if he believed Petitioner was guilty and (2) Petitioner would receive
a sentence of no more than ten years in prison.
The contention that the trial court violated Michigan Court Rule 6.302(C) is not a
cognizable claim on habeas review because “[a] federal court may not issue the writ [of habeas
corpus] on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984).
“In 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).

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Furthermore, a defendant has no absolute right to withdraw a guilty or no-contest plea.
United States v. Martin, 668 F.3d 787, 794 (6th Cir. 2012); Shanks v. Wolfenbarger, 387 F.
Supp. 2d 740, 748 (E.D. Mich. 2005). Unless a plea violated a clearly-established constitutional
right, the decision whether to allow a defendant to withdraw a no-contest plea is discretionary
with the state trial court. Shanks, 387 F. Supp. 2d at 748.
Nevertheless, “[a] guilty or no-contest plea involves a waiver of many substantial
constitutional rights, see Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969), and a court may accept a guilty or no-contest plea only where it is a ‘voluntary[,] . . .
knowing, intelligent act [ ] done with sufficient awareness of the relevant circumstances and
likely consequences.’ ” Fautenberry v. Mitchell, 515 F.3d 614, 636-37 (6th Cir. 2008) (quoting
Brady v. United States, 397 U.S. 742, 748 (1970)). The Court therefore must determine whether
Petitioner’s no-contest plea was involuntary and whether the trial court violated Petitioner’s
constitutional rights when the court declined to permit Petitioner to withdraw his plea.
Courts must consider all the relevant circumstances when determining whether a plea was
voluntary. Brady, 397 U.S. at 749. Among the factors to be considered are whether the
defendant appreciated the consequences of his waiver of constitutional rights, waived his rights
without being coerced to do so, and understood the rights that he was surrendering by pleading
guilty or no contest. Ruelas v. Wolfenbarger, 580 F.3d 403, 408 (6th Cir. 2009). Additional
factors to be considered are whether the defendant understood the essential elements of the
offenses to which he was pleading guilty or no contest and whether he was aware of the
maximum sentence for his crimes. Id. at 408-09.

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Petitioner indicated at the plea proceeding that he understood the consequences of his
plea and the rights that he was waiving by pleading no contest. He also claimed to understand
the nature of the charges and the maximum sentence for both offenses. He stated that no one had
threatened him to make him plead no contest and that it was his choice to plead no contest. (Plea
Tr. at 21-25, Jan. 18, 2012.)
Although Petitioner alleges that his plea attorney (Herrmann) informed him that he did
not intend to investigate the case if he believed Petitioner was guilty, Herrmann denied this
allegation when Petitioner raised the issue at sentencing. Herrmann stated that (1) it was not his
responsibility to decide whether a person was guilty or innocent and (2) it would have been to his
advantage to go to trial because he would have received more money by going to trial than by
representing Petitioner at a plea. (Sentencing Tr. at 4-5, Feb. 28, 2012.)
The trial court considered Herrmann’s statements and appears to have found his
statements more credible than Petitioner’s allegations. The court noted that Herrmann had
denied Petitioner’s allegations and that Petitioner’s allegations about Herrmann did not make
sense. (Id. at 7.) The “trial court’s credibility determinations are entitled to considerable
deference.” Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999). And because the trial court
apparently found Herrmann more credible than Petitioner, this Court rejects Petitioner’s
contention that Herrmann did not intend to investigate Petitioner’s case.
Petitioner also claims that his attorney said he would receive a sentence of no more than
ten years in prison if he pleaded no contest. Herrmann did admit to telling Petitioner initially
that “the deal was 10 years,” but he subsequently corrected himself and told Petitioner that the
sentence was 150 months or a little more than ten years. (Sentencing Tr. at 5, Feb. 28, 2012.)

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The trial court, moreover, pointed out to Petitioner over a month before his plea and also
at the plea proceeding that Petitioner would receive a sentence of 150 months or thirty months
more than ten years. (Hr’g Tr. at 4, Dec. 6, 2011; Plea Tr. at 23, Jan. 18, 2012.) “[T]he state
trial court’s proper colloquy can be said to have cured any misunderstanding [Petitioner] may
have had about the consequences of his plea.” Ramos, 170 F.3d at 565.
The Court concludes for the reasons given above that Petitioner’s no-contest plea was
voluntary and that the trial court did not abuse its discretion in denying Petitioner’s motion to
withdraw his plea. Further, the state appellate court’s conclusion that Petitioner’s claim lacked
merit was not contrary to, or an unreasonable application of, Supreme Court precedent.
Petitioner has no right to relief on the basis of his first claim.
B. The Prosecution
Petitioner claims next that the prosecution violated his right to due process and failed to
ensure that his rights were protected. In support of this claim, Petitioner relies on Shakeisha
Carter’s affidavit in which she states that she did not recognize the driver of the truck that hit her
mother’s car on May 25, 2010. Shakeisha also states in her affidavit that she was locked up for
thirty days because she refused to take the stand and lie about Petitioner and that she did not
want to press charges against Petitioner or go forward with the proceedings. See Affidavit of
Shakeisha Carter, Dkt. 12-11, Pg ID 275.

Petitioner asserts that Shakeisha’s affidavit is

supported by Luplow’s statement on the record that Petitioner was with him when Petitioner
supposedly ran Shakeisha and her mother off the road. (Hr’g Tr. at 3, July 15, 2010.)

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Petitioner’s claim essentially challenges the factual basis for the charges against him. He
waived his challenge to the legitimacy of the charges when he pleaded no contest on January 18,
2012. As explained in Tollett v. Henderson, 411 U.S. 258 (1973),
a guilty plea represents a break in the chain of events which has preceded it in the
criminal process. When a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea. He may only attack the
voluntary and intelligent character of the guilty plea by showing that the advice he
received from counsel was not [within the range of competence demanded of
attorneys in criminal cases].
Id. at 267. Stated differently,
[a] plea of guilty and the ensuing conviction comprehend all of the factual and
legal elements necessary to sustain a binding, final judgment of guilt and a lawful
sentence. Accordingly, when the judgment of conviction upon a guilty plea has
become final and the offender seeks to reopen the proceeding, the inquiry is
ordinarily confined to whether the underlying plea was both counseled and
voluntary. If the answer is in the affirmative then the conviction and the plea, as a
general rule, foreclose the collateral attack.
United States v. Broce, 488 U.S. 563, 569 (1989). Petitioner was represented by counsel at his
plea, and the record indicates that his plea was voluntary and knowing. By pleading no contest,
he waived his right to challenge the factual basis for, or legitimacy of, the charges against him.
Furthermore, while it is true that a prosecutor must have “probable cause to believe that
the accused committed an offense defined by statute,” Bordenkircher v. Hayes, 434 U.S. 357,
364 (1978), Barbara Carter’s testimony at the preliminary examination supported the charges
against Petitioner. And her testimony was corroborated in part by Kaylee Groulx who witnessed
the collision. Therefore, the prosecutor did not violate Petitioner’s constitutional right to due
process, and Petitioner has no right to relief on the basis of his second claim.

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C. The Trial Court
In his third claim, Petitioner alleges that the trial court failed to exercise control of the
proceedings at all times and yielded control of the proceedings to the prosecutor. According to
Petitioner, the prosecutor proceeded with the case despite attorney Luplow’s comments on the
record in state court that he had become an alibi witness for Petitioner and despite Doris Driane’s
affidavit stating that she was with Petitioner and Luplow on May 25, 2010. Petitioner asserts
that the trial court’s lack of control resulted in a fundamentally unfair proceeding in which an
innocent man was sent to prison.
Trial judges are not mere moderators of court proceedings; they must also govern
proceedings for the purpose of assuring proper conduct and determining questions of law.
Quercia v. United States, 289 U.S. 466, 469 (1933). “If truth 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 record before the Court belies Petitioner’s allegations that the trial court yielded
control of the proceedings to the prosecutor. Throughout the proceedings, the trial court listened
to Petitioner’s complaints, addressed his concerns, exhibited patience and respect for Petitioner,
and ensured that Petitioner’s rights were protected. The trial court also appointed four different
attorneys for Petitioner at his request.
Although Petitioner insinuates that he is innocent of the prosecutor’s charges and that his
mother (Doris Driane) and his first attorney (Luplow) supported an alibi defense, the trial court
permitted Luplow to withdraw from the case so that he could be an alibi witness for Petitioner.
Furthermore, the charges against Petitioner were supported by probable cause. As such, the

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prosecutor’s “decision whether or not to prosecute, and what charge[s] to file . . . generally
rest[ed] entirely in his discretion.” Hayes, 434 U.S. at 364. And because there is no evidence
that the prosecutor’s decision was based on “an unjustifiable standard such as race, religion, or
other arbitrary classification,” Oyler v. Boles, 368 U.S. 448, 456 (1962), there was no basis for
the trial court to question the charges or the prosecutor’s decision to proceed with the case.
Petitioner’s claim about the trial court lacks merit and does not entitle him to relief.
D. Trial Counsel
In his fourth claim, Petitioner alleges that his attorney sabotaged the criminal proceedings
and then abandoned him. More specifically, Petitioner contends that, although Luplow stated on
the record that he was an alibi witness for Petitioner, Luplow did nothing further to advance that
defense. According to Petitioner, Luplow did not file a notice of alibi, he did not solicit the
supporting testimony of Doris Driane, he did not ask the prosecution to drop the charges, and he
did not file a motion to dismiss the case. Petitioner asserts that counsel’s omissions resulted in a
structural error, which mandates his immediate release from custody.
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show
that “counsel’s performance was deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In the context of a guilty or nocontest plea, a deficient performance is one that falls below an objective standard of
reasonableness or is outside the range of competence demanded of attorneys in criminal cases.
Hill v. Lockhart, 474 U.S. 52, 56-57 (1985).
The “prejudice” prong “focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process.” Id. at 59. In other words, the defendant

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must show a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty or no contest and would have insisted on going to trial. Id. “[C]ounsel should be ‘strongly
presumed to have rendered adequate assistance and [to have] made all significant decisions in the
exercise of reasonable professional judgment.’ ” Burt v. Titlow, 134 S.Ct. 10, 17 (2013) (quoting
Strickland, 466 U.S. at 690).
Luplow, Petitioner’s first attorney, withdrew from the case on the basis that Petitioner
was with him during the time Petitioner supposedly was ramming his truck into Barbara Carter’s
car. (Hr’g Tr. at 3-4, July 15, 2010.) Although Luplow apparently did not file a notice of alibi,
Petitioner’s second attorney claimed that he filed a notice of alibi with Luplow’s name on it.
(Hr’g Tr. at 3, Sept. 14, 2010.) In addition, Petitioner’s fourth attorney claimed on the day set
for trial that Luplow was the defense witness. (Plea Tr. at 13, Jan. 18, 2012.) Thus, there is no
support in the record for Petitioner’s claim that his attorneys did not pursue an alibi defense or
that they sabotaged the proceedings and abandoned him. Furthermore, a motion to dismiss the
charges in all likelihood would have been denied because there was probable cause to support
the charges.
As for attorney Herrmann’s recommendation that Petitioner plead no contest, this was
objectively reasonable advice. If Petitioner had gone to trial and been convicted, his sentences
could have run consecutively to the sentence that he was already serving (id. at 4), and the
prosecutor indicated that she intended to request consecutive sentences if Petitioner went to trial
and was convicted (id. at 18). The evidence against Petitioner was substantial, and, by pleading
no contest, Petitioner was able to take advantage of the trial court’s promise to sentence him in

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the middle of the sentencing guidelines and to make his sentences run concurrently with the
sentence that he was serving. (Id. at 22.)
The court concludes that defense counsel’s performance was not deficient and that the
alleged deficiencies did not prejudice the defense. Therefore, Petitioner’s attorneys were not
constitutionally ineffective.
E. Appellate Counsel
In his fifth and final claim, Petitioner alleges that his appellate attorney did not offer to
assist him and failed to raise all his claims on direct appeal. Petitioner asserts that he was stuck
with an attorney that he did not want and who did not want to represent him.
An appellate attorney is not required to raise every non-frivolous claim requested by his
or her client if counsel decides, as a matter of professional judgment, not to raise the claim.
Jones v. Barnes, 463 U.S. 745, 751 (1983).

To demonstrate that appellate counsel was

ineffective, a habeas petitioner must show (1) that his attorney acted unreasonably in failing to
discover and raise nonfrivolous issues on appeal and (2) a reasonable probability that he would
have prevailed on appeal if his attorney had raised the issues. Smith v. Robbins, 528 U.S. 259,
285 (2000) (citing Strickland, 466 U.S. at 687-91, 694).
Appellate counsel raised Petitioner’s first claim on direct appeal, and Petitioner’s
remaining claims lack merit for the reasons given above. Therefore, appellate counsel was not
ineffective. “[B]y 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).

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IV. Conclusion
Petitioner’s claims lack merit, and the state courts’ rejection of the claims did not result in
decisions that were contrary to Supreme Court precedent, unreasonable applications of Supreme
Court precedent, or unreasonable determinations of the facts. The state-court decisions clearly
were not “so lacking in justification that there was an error . . . beyond any possibility for
fairminded disagreement.” Richter, 562 U.S. at 103. The Court therefore denies the amended
petition for writ of habeas corpus.
V. Denying a Certificate of Appealability;
Granting Leave to Proceed In Forma Pauperis on Appeal
Before Petitioner may appeal this Court’s decision, a district or circuit judge must issue a
certificate of appealability. 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).
Reasonable jurists could not disagree with the Court’s resolution of Petitioner’s
constitutional claims, nor conclude that the issues deserve encouragement to proceed further.
The Court therefore declines to issue a certificate of appealability. Petitioner nevertheless may
proceed in forma pauperis on appeal if he appeals this decision, because he was granted in forma
pauperis status in this Court, and an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3);

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Fed. R. App. P. 24(a)(3)(A).
Dated: January 18, 2017

s/ Sean F. Cox
Sean F. Cox
United States District Judge

I hereby certify that on January 18, 2017, the document above was served on counsel of record
via electronic means and upon William Henix via First Class Mail at the address below:
WILLIAM HENIX 263968
RICHARD A. HANDLON CORRECTIONAL FACILITY
1728 BLUEWATER HIGHWAY
IONIA, MI 48846
s/ J. McCoy
Case Manager

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