Jones v. Romanowski

Filing 32

OPINION AND ORDER (1) DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS [#16], (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TROY JONES,

Petitioner,

Case No. 2:13-cv-13885
Hon. Gershwin A. Drain

v.
S.L. BURT 1,
Respondent.
___________________________________/
OPINION AND ORDER (1) DENYING AMENDED PETITION FOR WRIT
OF HABEAS CORPUS [#16], (2) DENYING CERTIFICATE OF
APPEALABILITY, AND (3) DENYING PERMISSION TO APPEAL IN
FORMA PAUPERIS
I. INTRODUCTION
This is a habeas case brought by a Michigan prisoner under 28 U.S.C. § 2254.
Troy Jones, (“Petitioner”), was convicted after a jury trial in the Allegan Circuit
Court of assault with intent to do great bodily harm, MICH. COMP. LAWS § 750.84,
and witness tampering. MICH. COMP. LAWS § 750.122(7)(b). Petitioner was
sentenced as a fourth-time habitual felony offender to consecutive terms of 10 to 20

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Petitioner has been transferred to the Muskegon Correctional Facility. The proper
Respondent in a habeas case is the habeas petitioner’s custodian, which in the case
of an incarcerated habeas petitioner is the warden of the facility where the
petitioner is incarcerated. See Edwards Johns, 450 F. Supp. 2d 755, 757 (E.D.
Mich. 2006); See also Rule 2(a), 28 U.S.C. § 2254. Therefore, the Court substitutes
Warden S.L. Burt in the caption.

years for the assault conviction and 28 months to 6 years for the witness tampering
conviction.
The amended petition asserts three grounds for relief: (1) Petitioner’s right to
counsel was violated when jail authorities intercepted, copied, and disbursed to the
prosecutor legal mail sent to and received by Petitioner in jail, (2) Petitioner’s trial
testimony was erroneously impeached with the use of prior convictions obtained
when Petitioner was not represented by counsel, and (3) Petitioner was denied the
effective assistance of counsel when his counsel failed to challenge the prosecutor’s
use of the prior uncounseled convictions. Dkt. No. 20.
The Court finds that Petitioner’s claims are without merit. Therefore, the
petition will be denied. The Court will also deny Petitioner a certificate of
appealability and deny permission to appeal in forma pauperis.
II. BACKGROUND
The Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals, which are presumed correct pursuant to 28 U.S.C. § 2254(e)(1).
See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant was convicted of assaulting Tanya Rogers during the
early morning hours of October 11, 2008, at defendant’s house.
Defendant was acquitted of a separate assault charge involving his
sister, Debra Jones. The witness tampering conviction arose from
defendant’s offer to pay Rogers $1,000 for either refusing to testify or
for testifying in a specified manner.

People v. Jones, No. 292793 & 292794, 2011 WL 4467686, at *1 (Mich. Ct. App.
Sept. 27, 2011).
The procedural history of the case is lengthy and convoluted. Petitioner first
filed a claim of appeal in the Michigan Court of Appeals. His brief on appeal filed
by appointed appellate counsel raised three claims: (1) Petitioner’s right to counsel
was violated when jail authorities intercepted, copied, and disbursed to the
prosecutor legal mail sent from him from jail, (2) Petitioner was denied the effective
assistance of counsel, and (3) the sentencing guidelines were scored incorrectly.
Petitioner also filed a supplemental pro se brief that raised six additional claims: (4)
Petitioner’s trial testimony was erroneously impeached with the use of prior
convictions obtained when Petitioner was not represented by counsel, (5) the trial
court erred in failing to adjourn trial and order Petitioner to undergo a forensic
examination, (6) Petitioner was denied the effective assistance of counsel, (7)
Petitioner was charged under the wrong statute, (8) the prosecutor and trial court
erroneously amended the statutory language to fit the facts of the offense, and (9)
the sentencing guidelines were incorrectly scored.
The Michigan Court of Appeals affirmed Petitioner’s convictions, but it
remanded the case to the trial court for resentencing. Jones, 2011 WL 4467686.

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While Petitioner was awaiting resentencing in the trial court, he filed an
application for leave to appeal in the Michigan Supreme Court raising the same
claims that he raised in the Michigan Court of Appeals. The Michigan Supreme
Court denied the application by form order. People v. Jones, 801 N.W.2d 583 (Mich.
2012).
The trial court resentenced Petitioner on November 26, 2012. Petitioner filed
a claim of appeal from his new sentence, raising claims challenging his sentence as
well as new claims challenging his conviction.
Meanwhile, Petitioner filed the present case on September 11, 2013, raising
the three claims eventually raised in his amended petition. Dkt. No. 1. On December
26, 2013, Respondent filed an answer, arguing in part that the petition was filed
prematurely as Petitioner was still pursuing appellate relief in the state courts. Dkt.
No. 8. In response, Petitioner filed a motion to stay his habeas case while he
completed state court review on February 13, 2014. Dkt. No. 11. The Court granted
the motion on April 22, 2014, and ordered that the case be stayed and held in
abeyance while Petitioner completed state appellate review. Dkt. No. 14.
On July 31, 2012, Petitioner filed a pro se motion for relief from judgment in
the trial court and several supplemental pleadings, apparently re-raising what now
form his three habeas claims. Dkt. Nos. 24-2 through 24-6. The trial court denied the
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motions and supplemental pleadings in orders dated December 1, 2014, and
February 18, 2015. Dkt. 24-7, 24-8.
Petitioner filed a delayed application for leave to appeal with the Michigan
Court of Appeals, appealing the denial of his motion for relief from judgment. On
August 20, 2015, the Michigan Court of Appeals denied the application with citation
to Michigan Court Rule 6.508(D). People v. Jones, No. 327288 (Mich. Ct. App.
Aug. 20, 2015). Petitioner filed an application for leave to appeal with the Michigan
Supreme Court, but it was also denied under Rule 6.508(D). People v. Jones, 876
N.W.2d 884 (Mich. 2016).
Meanwhile, the Michigan Court of Appeals had affirmed Petitioner’s appeal
from his resentencing while his motion for relief from judgment was still pending.
People v. Jones, Mich. Ct. App. No. 315582 & 315713, 2014 WL 4723595, at *1
(Mich. Ct. App. Sept. 23, 2014). Petitioner filed an application for leave to appeal in
the Michigan Supreme Court, and the court remanded the case back to the trial court
for a second resentencing. People v. Jones, 876 N.W.2d 532 (Mich. 2016). Petitioner
was resentenced on June 20, 2016. Dkt. No. 30-18.
On April 18, 2016, Petitioner moved to reopen this case, and he filed an
amended petition for writ of habeas corpus that raised the same three claims he raised
in his initial petition. Dkt. Nos. 18, 20. On May 2, 2016, the Court ordered the case
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to be reopened. Dkt. No. 21. On August 1, 2016, Respondent filed the relevant part
of the state court record. Dkt. Nos. 24, 30. On August 26, 2016 Petitioner filed a
Motion to Extend the Filing Deadline to file his reply brief, with his reply brief
attached. Dkt. No. 25. The Court granted Petitioner’s Motion to Extend on
September 12, 2016. Dkt. No. 26. The matter is now ready for review.
III. STANDARD OF REVIEW
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional
claims raised by a state prisoner in a habeas action if the claims were adjudicated on
the merits by the state courts. Relief is barred under this section unless the state court
adjudication was “contrary to” or resulted in an “unreasonable application of”
clearly established Supreme Court law.
“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]’
or if it ‘confronts a set of facts that are materially indistinguishable from a decision
of [the Supreme] Court and nevertheless arrives at a result different from [this]
precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15–16 (2003) (quoting Williams v.
Taylor, 529 U.S. 362, 405–06 (2000)).
“[T]he ‘unreasonable application’ prong of the statute permits a federal
habeas court to ‘grant the writ if the state court identifies the correct governing legal
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principle from [the Supreme] Court but unreasonably applies that principle to the
facts’ of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting
Williams, 529 U.S. at 413).
“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.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “Section 2254(d) reflects the
view that habeas corpus is a guard against extreme malfunctions in the state criminal
justice systems, not a substitute for ordinary error correction through appeal. . . . As
a condition for obtaining habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling on the claim being presented in federal court was
so lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.” Harrington,
562 U.S. at 103 (internal quotation omitted).
IV. ANALYSIS
A. Procedural Default
Respondent contends that review of Petitioner’s claims is procedurally barred
because Petitioner did not properly present them on the same grounds on direct
appeal as he does here, and because the state courts found the new arguments barred
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on state collateral review. Under the procedural default doctrine, a federal habeas
court will not review a question of federal law if a state court’s decision rests on a
substantive or procedural state law ground that is independent of the federal question
and is adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722,
729 (1991). However, procedural default is not a jurisdictional bar to review of a
habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997).
Additionally, “federal courts are not required to address a procedural-default issue
before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212,
215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). It may
be more economical for the habeas court to simply review the merits of the
petitioner’s claims, “for example, if it were easily resolvable against the habeas
petitioner, whereas the procedural-bar issue involved complicated issues of state
law.” Lambrix, 520 U.S. at 525.
Here, as outlined above, the protracted procedural history makes any
determination of whether Petitioner’s claims are procedurally barred for the reasons
stated by Respondent murky. The analysis would require the Court to decipher
exactly which of Petitioner’s multiple pro se pleadings first fairly asserted his federal
constitutional claims—and there is plenty room for debate about that given the
lengthy multiple pro se pleadings filed by Petitioner in the state courts throughout
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his various appeals. However, this analysis is unnecessary because Petitioner
presents three substantive claims that are devoid of merit.
B. Petitioner’s Jailhouse Letters
Petitioner’s first claim asserts that his Sixth Amendment right to counsel was
violated by the prosecution’s direction to jail personnel to intercept, copy, and
distribute letters sent to and received by Petitioner while he was housed in jail, which
including correspondences to and from his trial counsel. Dkt. No. 1, pg. 4 9Pg. ID
4).
Under clearly established Supreme Court law, the Sixth Amendment
guarantees defendants access to a fair adversarial criminal process. U.S. v. Cronic,
466 U.S. 648, 656 (1984). “Where the Sixth Amendment is violated, a serious risk
of injustice infects the trial itself.” Chittick v. Lafler, 514 F. App’x 614, 617 (6th Cir.
2013) (internal quotation marks omitted). “[I]n order to establish a violation of the
Sixth Amendment right to counsel ensuing from government surveillance, a
claimant must not only show that conversations with an attorney were surreptitiously
monitored, but must also show that the information gained was used to prejudice the
claimant’s defense in his criminal trial.” Sinclair v. Schriber, 916 F.2d 1109, 1112
(6th Cir. 1990). In the related context of the government’s use of police informants,
the Supreme Court and the Sixth Circuit have identified a number of factors to
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consider in determining whether a defendant’s Sixth Amendment rights have been
violated by an “invasion of the attorney-client privilege,” including:
1) whether the presence of [an] informant was purposely caused by the
government in order to garner confidential, privileged information, or
whether the presence of [an] informant was the result of other
inadvertent occurrences; 2) whether the government obtained, directly
or indirectly, any evidence which was used at trial as the result of the
informant’s intrusion; 3) whether any information gained by the
informant’s intrusion was used in any other manner to the substantial
detriment of the defendant; and 4) whether the details about trial
preparations were learned by the government.
U.S. v. Steele, 727 F.2d 580, 585 (6th Cir. 1984) (citing Weatherford v. Bursey, 429
U.S. 545, 554 (1977)).
Here, the Michigan Court of Appeals found that Petitioner’s Sixth
Amendment rights were not violated by the interception of Petitioner’s jailhouse
correspondence:
Under the United States and Michigan Constitutions, a defendant
in a criminal prosecution is entitled to counsel. U.S. Const, Ams. VI
and XIV; Const. 1963, Art 1, § 20. A defendant’s right to counsel under
the state constitution is generally the same as that guaranteed by the
United States Constitution. People v. Reichenbach, 459 Mich. 109, 118
(1998).
* * *
As observed in People v. Waclawski, 286 Mich. App. 634, 693–
694 (2009), quoting Ravary v. Reed, 163 Mich. App. 447, 453 (1987):
The attorney-client privilege attaches to communications
made by a client to his or her attorney acting as a legal
adviser and made for the purpose of obtaining legal advice
10

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on some right or obligation. Alderman v. The People, 4
Mich. 414, 422 (1857); Kubiak v. Hurr, 143 Mich. App.
465, 472-473 (1985). The purpose of the privilege is to
allow a client to confide in his or her attorney secure in the
knowledge that the communication will not be disclosed.
Id., 473. The privilege is personal to the client, who alone
can waive it. Passmore v. Passmore’s Estate, 50 Mich.
626, 627 (1883).
The attorney-client privilege includes both the security against
publication and the right to control the introduction into evidence of
such information or knowledge communicated to or possessed by the
attorney. Leibel, 250 Mich. App. at 240.
However, the protection is not absolute. “Once otherwise
privileged information is disclosed to a third party by the person who
holds the privilege, or if an otherwise confidential communication is
necessarily intended to be disclosed to a third party, the privilege
disappears.” Oakland Co Prosecutor v. Dep’t of Corrections, 222
Mich. App. 654, 658 (1997). For instance, in People v. Compeau, 244
Mich. App. 595, 597-598 (2001), the Court held that a communication
was not privileged where the defendant failed to take reasonable
precautions to keep his conversation between himself and his attorney
confidential.
We conclude that the trial court properly ruled that some of
defendant’s mail, which contained copies of defendant’s letters to his
attorney, was not privileged. The letters were each contained in an
envelope sent to defendant from his father, a third party. It is unknown
how defendant’s father came to possess copies of the letters that
defendant wrote to defense counsel, but his possession was purposeful.
Defendant’s father mailed the copied letters to defendant at defendant’s
request. Because defendant allowed the letters to be shared with his
father, the communications lost their privileged status. Leibel, 250
Mich. App. at 240 (valid waiver requires intentional, voluntary act);
Compeau, 244 Mich. App. at 597–598. Therefore, defendant’s Sixth
Amendment right to counsel was not affected.

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* * *
However, two of the letters were clearly privileged legal mail.
One was an incoming letter to defendant from defense counsel, in an
envelope clearly marked as such. The other was an outgoing multi-page
letter also in an envelope clearly marked to defense counsel. Therefore,
the opening of this mail was an impermissible intrusion. The critical
question is whether the trial court properly required defendant to show
that he was prejudiced by these intrusions.
In People v. Iaconnelli (On Rehearing), 116 Mich. App. 176, 177
(1982), this Court reversed its previous decision granting the defendant
a new trial on the ground that his Sixth Amendment right to counsel
was impermissibly invaded. This Court found no prejudice to the
defendant where there was a lack of evidence showing that any trial
strategy was communicated to the prosecution. Id. The prosecution had
questioned a codefendant, who previously had the same attorney as the
defendant, regarding defense strategies before he became a prosecution
witness. People v. Iaconnelli, 112 Mich. App. 725, 737 (1982).
Therefore, we conclude that Michigan courts favor requiring a
finding of prejudice before an intentional governmental intrusion will
be determined to be a Sixth Amendment violation. The existing record
demonstrates that the trial court did not clearly err in its factual finding
that the prosecutor did not use any information to defendant’s
disadvantage, i.e., that defendant suffered no prejudice. See Dendel,
481 Mich. at 114. Accordingly, the trial court did not abuse its
discretion in its ultimate decision to deny defendant’s motion for new
trial. See Miller, 482 Mich. at 544.
Jones, No. 292793 & 292794, 2011 WL 4467686, at *3-4.
This decision amounted to a reasonable application of clearly established
Supreme Court law.

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First, the state court’s determination that Petitioner waived his privilege with
respect to the one letter from his counsel that he sent to his father that was mailed
back to him in jail is a matter of state law that does not give rise to a cognizable
claim. “Standing alone, the attorney-client privilege is merely a rule of evidence; it
has not yet been held a constitutional right.” Clutchette v. Rushen, 770 F.2d 1469,
1471 (9th Cir. 1985); see also, Dye v. Hofbauer, 197 F. App’x 378, 383 (6th Cir.
2006) (“The attorney-client privilege is a creation of the common law, and a
violation of this privilege generally does not constitute” a constitutional violation.).
Next, the state court’s determination that Petitioner’s Sixth Amendment rights
were not violated with respect to the interception of the other letters is reasonably
supported by the trial record. The record shows that on October 28, 2008, while
Petitioner was in jail awaiting his preliminary examination, Petitioner wrote a letter
to Henry Pelc, offering him money to go to the victim of the assault charge and ask
her not to testify at the preliminary examination in exchange for $1,000. There was
no dispute that Petitioner wrote the letter. Tr. 5-4-09, at 2-3 (Petitioner’s stipulation),
112-13 (victim’s testimony); Tr. 5-5-09, at 105-120 (Pelc’s testimony); Tr. 5-6-09,
at 49 (Petitioner’s testimony). Pelc followed through and delivered the offer to the
victim, who in turn notified police. Tr. 5-4-09, at 112-146. As a result of Petitioner’s
actions of trying bribe the victim from jail, the prosecutor ordered that Petitioner’s

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mail be intercepted, copied, and forwarded. Tr. 4-22-09, at 2-14; Tr. 4-27-09, at 224, 35-41; Tr 5-6-09, at 143-147.
On April 22, 2009, the matter came to a head when Petitioner’s attorney
moved to withdraw as counsel and sought to disqualify the prosecutor on the grounds
that privileged communications were intercepted, impeding counsel’s ability to
defend Petitioner. Counsel complained that the prosecutor had obtained through this
procedure letters that were sent between him and his client concerning trial strategy.
Tr. 4-27-09, at 2-7. The trial court held a hearing, and the parties marked as exhibits
eight of the intercepted letters which Petitioner’s counsel claimed included
privileged communications. Id., at 5-6, 10.
Other than one letter which was inadvertently read, the prosecutor stated that
he did not read any of the letters between counsel and his client. Tr. 4-27-09, at 3-4.
The prosecutor stated: “I didn’t read anything, and I do want to clarify as I giving
[sic] the Court the one piece I did see that I said Mr. Champion [Petitioner’s counsel]
we don’t need a handwriting expert.” Id. at 14-15. The prosecutor stated that he did
not read any of the other letters addressed to Petitioner’s counsel and no one had
summarized the letters for him. Id. at 15.
At the close of the hearing, the trial court found that Petitioner waived any
privilege of legal correspondence contained in the one letter received from a civilian

15

(his father) that contained a letter to his counsel. Id. at 21. The court, accepting the
prosecutor’s representations that he did not read the contents of the other opened
letters, found that the mere opening of mail did not inhibit Petitioner’s right to defend
himself. Id. at 20-24.
Following his conviction Petitioner again raised the issue in a motion for new
trial. Tr. 6-17-09, at 2-3. After the prosecutor again denied reading any of the
privileged communications other than inadvertently reading the one regarding the
handwriting expert, the trial court ruled:
The evidence in this case involving a witness bribery against Mr. Jones
arises from a piece of correspondence he sent while a prisoner out of
jail to an intermediary; asking the intermediary to communicate that
letter that contained a bribe, and that more than anything else
demonstrates the sound rationale for examining prisoners outgoing
correspondence to non-privileged sources.
Now, there is a record made during the trial of a letter to Mr.
Champion [defense counsel] sent I believe through and to a third party
with a phony identity attached to that letter by the defendant. My ruling
at the time, my ruling now is that as to that communication the
defendant waived his expectation of privacy by sending that apparently
confidential communication out through a non-confidential source. It
would be the equivalent of bringing a non-lawyer in on a conversation
between a lawyer and a client that would otherwise be confidential.
That’s my ruling and so that particular piece of legal mail is denied as
grounds for granting the defendant a new trial.
As to the separate piece of mail that the prosecutor’s office saw,
I think that was opened inadvertently and I think Mr. Kengis [the
prosecutor] identified the subject of Mr. Champion on the letter, and

16

didn’t read it further, returned it to Mr. Champion. As far as this Court
knows didn’t employ any of the content of that letter in the trial and the
content of that letter remains a mystery to the Court. So, there are no
adverse consequences inured to the defendant from the fact that the
letter was inadvertently opened. Also on that ground, and all others
raised by the defendant with respect to the mail issue, I see no impact
on his trial in terms of corrupting it with information invaded by the
prosecutor improperly and used against him in the trial.
Tr. 6-17-09, at 6-7.
In light of this record, which includes presumptively correct factual findings
made by the trial court (see 28 U.S.C. § 2254(e)(1)), the decision by the Michigan
Court of Appeals did not involve an objectively unreasonable application of clearly
established Supreme Court law. First, the interception of Petitioner’s mail was not
purposely caused by the government in order to garner confidential, privileged
information. It was done because Petitioner had attempted to bribe the victim of the
assault. The government had a legitimate interest in taking measures to ensure the
continued integrity of the assault prosecution. The letters were being screened not to
gain information about Petitioner’s defense, but to make sure that Petitioner was not
attempting to bride or otherwise improperly influence witnesses. The one
confidential letter concerning the lack of a need for a handwriting expert was
inadvertently read by the prosecutor. This did not result in the prosecutor obtaining
any evidence or other useful information which was used at trial. The fact that

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Petitioner believed no handwriting expert was necessary did not result in any
advantage to the prosecutor because Petitioner admitted at trial that he wrote the
letter attempting to bribe the victim. The state court’s determination that Petitioner’s
defense suffered no prejudice from the interception of his mail was reasonable.
Accordingly, Petitioner has failed to demonstrate entitlement to habeas relief with
respect to this claim.
C. Impeachment with Prior Convictions
Petitioner’s second claim asserts that the trial court erred in allowing the
prosecutor to impeach his credibility at trial with prior uncounseled misdemeanor
retail fraud convictions. Petitioner asserts that he was never waived his right to
counsel in the prior proceedings.
Generally speaking, under clearly established Supreme Court law, a prior
uncounseled conviction cannot be “used against a person either to support guilt or
enhance punishment for another offense.” Burgett v. Texas, 389 U.S. 109, 115
(1967). But that principle is inapplicable where the defendant intelligently and
knowingly waived his right to counsel in the prior criminal proceedings. Nichols v.
United States, 511 U.S. 738, 743 n.9 (1994).

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Here, the Michigan Court of Appeals rejected Petitioner’s claim on the
grounds that the state record showed that Petitioner had waived his right to counsel
with respect to the prior convictions:
[D]efendant argues that his constitutional rights were violated when he
was impeached with invalid retail fraud convictions and that defense
counsel was ineffective for failing to investigate defendant’s claim that
he was not represented by counsel and was only convicted of one count
of retail fraud. We disagree.
* * *
On appeal, defendant now contends that the convictions were obtained
in violation of his right to counsel. He attaches to his Standard 4 brief
numerous documents relating to these convictions in support of his
position.
* * *
The documents indicate that defendant pleaded guilty to three counts
of retail fraud after waiving his right to counsel. Defendant’s
annotations on the various documents mirror his sentiments in his
motion to withdraw his guilty plea and accompanying affidavit
regarding a desire for counsel and not knowingly waiving his right to
counsel. However, there is nothing objective in the materials to suggest
that defendant was denied his right to counsel or that his waiver was
not valid.

Jones, 2011 WL 4467686, at *11-12.
The decision of the Michigan Court of Appeals was reasonable. The record
reasonably supports the state court’s determination that Petitioner voluntarily
waived his right to counsel with respect to his prior retail fraud convictions. The
judgment of sentence states: “Defendant was advised of right to counsel and
appointed counsel and knowingly, intelligently, and voluntarily waived that right.”
Dkt. 9-3, pg. 430 (Page ID 869). The transcript of the guilty plea refers to Petitioner
having read and signed an advice of rights form, and that by pleading guilty, he was
waiving those rights. Dkt. 9-3, pg. 431 (Page ID 870). As indicated above, factual
findings made by a state court are presumed to be correct unless rebutted by clear
and convincing evidence. § 2254(e)(1). The determination that the state court record
showed that Petitioner validly waived his right to counsel before pleading guilty
finds support in the record of the misdemeanor plea, and Petitioner has not proffered
clear and convincing evidence to the contrary. The claim is therefore without merit.
D. Effective Assistance of Counsel
Petitioner’s third claim asserts that he was denied the effective assistance of
trial counsel when his trial attorney failed to object to the use of the prior
uncounseled convictions. The Court has already determined that Petitioner was
properly impeached by the prior convictions because he validly waived his right to
counsel. Counsel cannot be deemed ineffective for failing to raise a meritless
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objection. See Bradley v. Birkett, 192 F. App’x 468, 475 (6th Cir. 2006). Petitioner’s
third claim is therefore without merit.
V. CERTIFICATE OF APPEALABILITY
Before Petitioner may appeal this decision, the Court must determine whether
to issue a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App.
P. 22(b). 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).To satisfy § 2253(c)(2), Petitioner must show “that reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(citation and internal quotation marks omitted). The Court finds that reasonable
jurists would not debate the resolution of his claims. The Court will therefore deny
a certificate of appealability with respect all of Petitioner’s claims. Furthermore, if
Petitioner chooses to appeal the Court’s decision, he may not proceed in forma
pauperis because an appeal could not be taken in good faith. 28 U.S.C. § 1915(a)(3).
VI. CONCLUSION
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a
writ of habeas corpus, 2) DENIES a certificate of appealability, and 3) DENIES
permission to appeal in forma pauperis.
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SO ORDERED.

Dated: April 30, 2018

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

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