Johnson v. Bauman

Filing 16

OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Kenneth Johnson and DECLINING to issue a Certificate of Appealability Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KENNETH JOHNSON,
Petitioner,
v.

Case No. 2:14-CV-10976

CATHERINE BAUMAN,
Respondent.
/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner Kenneth Johnson, incarcerated at the Ryan Correctional Facility in
Detroit, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, Petitioner challenges his conviction of armed robbery,1
carjacking,2 felon in possession of a firearm,3 and possession of a firearm during the
commission of a felony.4 For the reasons that follow, the petition for a writ of habeas
corpus will be denied.
I. BACKGROUND
Petitioner was convicted of the above offenses following a jury trial in the Wayne
County Circuit Court.

1

Mich. Comp. Laws § 750.529.

2

Mich. Comp. Laws § 750 .529a.

3

Mich. Comp. Laws § 750.224f.

4

Mich. Comp. Laws § 750.227b.
1

On December 23, 2008, Scott Dallo (the victim) stopped at a gas station between
5:15 and 5:30 p.m. on his way home from work. (Tr. 4/21/09, pp. 72-73, 90). Dallo went
into the store to purchase a lighter and was approached by Petitioner who mumbled
something to him. (Id., pp. 76-78). Petitioner followed Dallo out of the store and kept
mumbling to Dallo. In an attempt to understand what Petitioner was saying, Dallo
turned around and was asked by Petitioner “[a]re you straight?” Petitioner had a “pretty
deep” voice and “all the words were together.” (Id., p. 80). When Dallo opened the door
to his Jeep with the key fob, he found Marieo Sturges inside the Jeep, pointing a
semi-automatic handgun at him. (Id., pp. 80-82, 85, 86).
Once the three men were in the Jeep, Sturges told Dallo to drive, which he did.
The men stopped in a location unknown to Dallo, at which point Sturges hit Dallo in the
head with a handgun. (Id., pp. 84-87). Petitioner pulled Dallo from the seat of the Jeep
and both he and Sturges punched Dallo on the head about twenty to twenty-five times.
Petitioner took about eighty dollars in cash, Dallo’s Sprint Trio cellphone, and driver’s
license and passed them to Sturges. The interior light of the car illuminated Johnson
and Sturges so that Dallo could clearly see each of the men. (Id., pp. 88-90, 92-94).
Petitioner threw Dallo to the ground, punched him a few more times and then
drove off. Dallo flagged down a truck, borrowed a cell phone and called his father, who
accompanied him to the police department to make a report. At the police station,
Dallo accessed Sprint’s website to utilize the “Family Locator” feature, which located the
phone and displayed it on a map. (Id., pp. 102-05). A police car was dispatched to the
location where the officers observed a group of four men, including Petitioner, walking
out of a house toward Dallo’s Jeep. (Id., pp. 221, 229-30, 259-60). Sturges had the key
2

fob in his hand and unlocked the Jeep’s doors. (Id., pp. 223-24, 260-61). The officers
ordered all four men onto the ground. As Sturges got onto the ground, he pushed an
object, which turned out to be Dallo’s cell phone, under the snow. (Id., pp. 226, 246-47,
266).
Dallo participated in a live line-up of eight individuals. Dallo identified Sturges
because he had an afro. Mr. Dallo asked the police if he could hear the voices of the
men in the line-up because he remembered Petitioner’s mumbling voice “pretty well.”
Dallo asked to hear the individuals say “get out of the car.” Petitioner had said that as
he removed Dallo from the Jeep. Dallo testified that hearing the voices “helped
tremendously.” Dallo testified he was “[a]lmost a hundred percent” sure that Petitioner
had been one of the two men who had robbed him. (Id., pp. 107-09).
The officer in charge of the investigation, Sergeant Javaier Chapa, subsequently
showed Dallo a photo line-up containing eight photographs, including the other two men
arrested with the Jeep that night. (Id., pp. 112-13, 331, 346-351). Mr. Dallo picked two
men from the photo line-up. (Id., p. 115). Dallo correctly identified Sturges, but the
second individual he selected was not Petitioner. (Id., pp. 146, 351, 353). The “[l]ive
line-up was a lot easier for” Dallo because he could see the participants’ respective
heights and their hair. The photo line-up did not include pictures from the same day;
they could have been from years ago. (Id., p. 116). Mr. Dallo also testified that
Petitioner wore the same Prada shirt in court that he wore the evening of the carjacking.
(Id., p. 134).
The Michigan Court of Appeals affirmed in part Petitioner’s convictions and
vacated a conviction for unlawfully driving away an automobile charge. People v.
3

Johnson, No. 292238, 2010 WL 4026105 (Mich. Ct. App. Oct. 14, 2010);
reconsideration den. People v. Johnson, No. 292238 (Mich. Ct. App. Dec. 14, 2010),
leave to appeal denied at 796 N.W.2d 249 (Mich. 2011).
Petitioner filed a post-conviction motion for relief from judgment, which was
denied. People v. Johnson, No. 09-000732-02-FC (Wayne County Circuit Court, April 5,
2013). The Michigan appellate courts denied Petitioner leave to appeal. People v.
Johnson, No. 316798 (Mich.Ct.App. Oct. 25, 2013); leave to appeal denied at 846
N.W.2d 561 (Mich. 2014).
Petitioner now seeks a writ of habeas corpus on the following grounds:
I.

Petitioner was denied his Sixth and Fourteenth Amendment
rights to effective assistance of counsel at trial when his
attorney failed to seek to suppress the complainant’s in-court
and voice identification of Mr. Johnson as one of the
perpetrators of the offense.

II.

Petitioner was denied his Sixth Amendment right to a public
trial when the trial court excluded the public from the courtroom
during jury selection without taking any reasonable measures
to accommodate the public’s attendance during this portion of
the Petitioner’s trial.

III.

Petitioner was denied his Fourteenth Amendment right to
effective assistance of appellate counsel where appellate
counsel failed to raise the issue that Mr. Johnson was denied
his Sixth Amendment right to a public trial in the Petitioner’s
appeal of right.

II. STANDARD

4

Title 28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas
cases:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect
to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(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.
A decision of a state court is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court
has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 40506 (2000). An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.”
Id. at 409. A federal habeas court may not “issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.” Id. at 410-11.
The Supreme Court has explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court rulings,’and ‘demands that
state-court decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766,
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773 (2010)(quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[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)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court has emphasized “that even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), “a habeas
court must determine what arguments or theories supported or...could have supported,
the state court’s decision; and then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with the holding in a
prior decision” of the Supreme Court. Id.
III. DISCUSSION
The court discusses all of Petitioner’s claims together because they all involve
allegations of the ineffective assistance of trial or appellate counsel.
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the defendant
must demonstrate that, considering all of the circumstances, counsel’s performance
was so deficient that the attorney was not functioning as the “counsel” guaranteed by
the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing,
the defendant must overcome a strong presumption that counsel’s behavior lies within
the wide range of reasonable professional assistance. Id. He must overcome the
presumption that, under the circumstances, the challenged action might be sound trial
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strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such
performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must
show that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
“Strickland’s test for prejudice is a demanding one. ‘The likelihood of a different result
must be substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379 (6th
Cir. 2011)(quoting Harrington, 562 U.S. at 112). The Supreme Court’s holding in
Strickland places the burden on the defendant who raises a claim of ineffective
assistance of counsel, and not the state, to show a reasonable probability that the result
of the proceeding would have been different, but for counsel’s allegedly deficient
performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009). On habeas review, “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.’” Knowles v. Mirzayance, 556 U.S. 111,
123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). The Strickland
standard applies as well to claims of ineffective assistance of appellate counsel. See
Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).
In his first claim, Petitioner alleges that trial counsel was ineffective for failing to
move to suppress the in-court and voice identification. Petitioner argues that the lineup
was unduly suggestive because the lineup participants varied in their height, age,
weight, and hairstyles and were similar only in regards to sex and race.
Due process protects the accused against the introduction of evidence which
results from an unreliable identification obtained through unnecessarily suggestive
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procedures. Moore v. Illinois, 434 U.S. 220, 227 (1977). However, to determine
whether an identification procedure violates due process, courts look first to whether the
procedure was impermissibly suggestive; courts then determine whether, under the
totality of circumstances, the suggestiveness has led to a substantial likelihood of an
irreparable misidentification. Neil v. Biggers, 409 U.S. 188 (1972). Five factors should
be considered in determining the reliability of identification evidence: (1) the witness’s
opportunity to view the criminal at the time of the crime; (2) the witness’s degree of
attention at the time of the crime; (3) the accuracy of the witness’s prior description of
the defendant; (4) the witness’s level of certainty when identifying the suspect at the
confrontation; and (5) the length of time that has elapsed between the time and the
confrontation. Id. at 199-200.
A criminal defendant has the initial burden of proving that the identification
procedure was impermissibly suggestive. It is only after a defendant meets this burden
of proof that the burden then shifts to the prosecutor to prove that the identification was
reliable independent of the suggestive identification procedure. See United States v.
Wade, 388 U.S. 218, 240, n. 31 (1967). If a defendant fails to show that the
identification procedures were impermissibly suggestive, or if the totality of the
circumstances indicates that the identification is otherwise reliable, no due process
violation has occurred. As long as there is not a substantial likelihood of
misidentification, it is for the jury to determine the ultimate weight to be given to the
identification. See United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992).
Petitioner is not entitled to habeas relief because he has failed to show that the
victim’s in-court identification was the result of suggestive procedures.
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First, the mere fact that the victim failed to identify Petitioner at the photographic
lineup and his initial hesitancy to pick out Petitioner at the live line-up did not require the
suppression of the victim’s in-court identification of Petitioner. An earlier failure to
identify a defendant, or even a positive identification of a different suspect, does not
require the exclusion of an in-court or pretrial identification, if the identification is
otherwise reliable. See Howard v. Bouchard, 405 F.3d 459, 484 (6th Cir.
2005)(collecting cases). The victim’s failure to previously identify Petitioner at the
photographic identification and his initial inability to identify Petitioner without hearing
Petitioner’s voice at the live lineup went to the weight, not the admissibility, of his incourt identification. Id.
Petitioner next claims that the victim’s identification was tainted because the
police told him that the perpetrators were apprehended. A pretrial line-up is not
rendered impermissibly suggestive simply because a witness knows that the suspects
were in custody when the lineups were conducted. See United States v. Bowman, 215
F.3d 951, 966 (9th Cir. 2000); see also United States v. Carter, 756 F.2d 310, 313 (3rd
Cir. 1985)(while statement by security officer to witness that there would be suspect in
lineup she was about to view was dangerously suggestive when combined with one
person show up, that was not true in case of a fair lineup); Johnson v. Warren, 344 F.
Supp. 2d 1081, 1090 (E.D. Mich. 2004)(same). As the Ninth Circuit has noted, “[i]t
stands to reason that there is a suspect at the lineup stage.” Bowman, 215 F.3d at 966
(emphasis original).
Next, the fact that the victim only identified Petitioner after hearing his voice did
not render the identification at the live lineup unreliable. “The identification of the voice
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of a person suspected of a crime as the voice of a suspected criminal is admissible
evidence.” Alder v. Burt, 240 F. Supp. 2d 651, 674 (E.D. Mich. 2003)(citing Stovall v.
Denno, 388 U.S. 293, 295 (1967)). Hence, “[P]ersons in a lineup can be required to
speak words or phrases supposedly uttered by the culprit.” See Swicegood v. State of
Ala., 577 F.2d 1322, 1327 (5th Cir. 1978)(citing Wade, 388 U.S. at 222-23). Requiring
Petitioner and the other participants in the lineup to speak the words uttered by the
perpetrator in this case was not unduly suggestive and did not deprive petitioner of his
rights to due process. See e.g. U.S. v. Beard. 381 F.2d 325, 326-28 (6th Cir. 1967).
Finally, the victim’s indication that he was almost one hundred percent sure of his
pre-trial identification of Petitioner establishes that the victim’s identification was
sufficiently reliable to pass constitutional muster. See U.S. v. McComb, 249 Fed. App’x.
429, 440-41 (6th Cir. 2007).
Even assuming that the pre-trial identification procedures were unduly
suggestive, Petitioner has failed to show, under the totality of circumstances, that the
suggestiveness led to a substantial likelihood of an irreparable misidentification. The
victim testified that he clearly saw Petitioner in the store at the gas station and that the
light within the car clearly illuminated the faces of the perpetrators. (Tr. 4/21/2009, pp.
79, 92). The victim told the police that he was 99 to 100% positive that Petitioner was
the assailant and positively identified Petitioner at the preliminary examination. The
victim at trial testified that he had no doubt that petitioner was his assailant. (Id., pp.
108-109). Furthermore, courts tend to “place greater trust in witness identifications
made during the commission of a crime because the witness has a reason to pay
attention to the perpetrator.” Howard v. Bouchard, 405 F.3d at 473; see also United
10

States v. Meyer, 359 F.3d 820, 826 (6th Cir. 2004) (finding heightened degree of
attention where witness spoke with robber and studied his features while looking for an
opportunity to escape); United States v. Crozier, 259 F.3d 503, 511 (6th Cir. 2001)
(finding heightened degree of attention where robber confronted witnesses with a gun).
These factors all support the trial court’s finding that an independent basis existed for
the victim’s in-court identification of Petitioner. See Robertson v. Abramajtys, 144 F.
Supp. 2d 829, 847 (E.D. Mich. 2001).
Petitioner alleges that trial counsel was ineffective by failing to have the voice
identification suppressed because Dallo was unable to identify Petitioner without first
hearing him speak and because Dallo was told before the lineup that the officers had
apprehended the perpetrators. The Michigan Court of Appeals rejected Petitioner’s
claim on the ground that “[a] person’s voice is a competent means of identification if the
identifying witness is positive or certain of the identification and there exists some
reason to which the witness attributes his ability to make the identification.” People v.
Johnson, 2010 WL 4026105, at * 2. The Court of Appeals added, “The most common,
but not the exclusive, reasons are a peculiarity in the person’s voice or the identifying
witness’s previous knowledge of the person’s voice.” Id.
Dallo testified the Petitioner’s voice was “pretty deep” and “all the words were
together.” Dallo also testified that he remembered Petitioner’s voice “pretty well” and
wanted to hear if the person he suspected, being Petitioner, mumbled his words. Upon
hearing Petitioner’s voice, Dallo was 95 to 99 percent certain that Petitioner was the
perpetrator. (Tr. 4/21/09, p.110).

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In light of the fact that the victim’s identification of Petitioner was independently
reliable, given the ample opportunity that he had to observe petitioner at the crime
scene and the certainty of his in-court identification, Petitioner was not prejudiced, as
required to establish ineffective assistance, by trial counsel’s failure to make a pretrial
motion to suppress the victim’s in-court and out-of-court identifications on the basis that
the lineup was suggestive. See Howard v. Bouchard, 405 F.3d at 481-485). Petitioner
has failed to show that the lineup procedure was unduly suggestive; therefore, he has
failed to show that his lawyer was ineffective for failing to move for suppression of the
pre-trial identifications. See Perkins v. McKee, 411 F. App’x. 822, 833 (6th Cir. 2011).
Petitioner is not entitled to habeas relief on his suggestive identification claim.
Petitioner next contends that his Sixth Amendment right to a public trial was
violated when the courtroom was closed to the public during voir dire.
Respondent contends that petitioner’s public trial claim is waived and/or
procedurally defaulted, in part, because Petitioner failed to object to the closure of the
courtroom for the jury selection process. The trial court, in denying Petitioner’s claim on
post-conviction review, ruled that Petitioner was foreclosed from bringing the issue
because of his failure to object. People v. Johnson, No. 09-000732-02-FC, *2-3 (Third
Circuit Court, April 5, 2013).
“The central aim of a criminal proceeding must be to try the accused fairly.”
Waller v. Georgia, 467 U.S. 39, 46 (1984). The Sixth Amendment public-trial guarantee
was created to further that aim. Id. (citing Gannett Co. v. DePasquale, 443 U.S. 368,
380 (1979)). A public trial helps to ensure that judge and prosecutor carry out their
duties responsibly, encourages witnesses to come forward, and discourages perjury. Id.
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The violation of the constitutional right to a public trial is a structural trial error, not
subject to the harmless error analysis. Id. at 49-50, n. 9.
In Presley v. Georgia, 558 U.S. 209, 216 (2010), the Supreme Court held that a
criminal defendant’s Sixth Amendment right to a public trial was violated when the trial
court excluded the public from the voir dire of prospective jurors, when the court failed
to consider reasonable alternatives to closure.
Although the right to a public trial is a fundamental right, it can also be waived if a
habeas petitioner either acquiesces to the closure of the courtroom or fails to object.
See Johnson v. Sherry, 586 F.3d 439, 444 (6th Cir. 2009)(citing Freytag v.
Commissioner, 501 U.S. 868, 896 (1991)(“[T]he Sixth Amendment right to a trial that is
‘public,’ provide[s] benefits to the entire society more important than many structural
guarantees; but if the litigant does not assert [it] in a timely fashion, he is foreclosed.”);
Peretz v. United States, 501 U.S. 923, 936–37 (1991)(citing Levine v. United States,
362 U.S. 610, 619 (1960)). Other circuits have reached the same conclusion. See U.S.
v. Reagan, 725 F.3d 471, 488-89 (5th Cir. 2013)(defendants waived claim that right to
public trial violated by the closing of the courtroom during voir dire, hence, claim
unreviewable on appellate review); U.S. v. Christi, 682 F.3d 138, 142-43 (1st Cir. 2012)
(defendant waived any claim of error in court limiting public access to courtroom during
most of jury instructions by counsel’s failure to object); U.S. v. Rivera, 682 F.3d 1223,
1232 (9th Cir. 2012) (defendant may forfeit the right to a public trial, either by
affirmatively waiving it or by failing to assert it in a timely fashion). Under Michigan law,
a public trial claim is considered forfeited by a defendant’s failure to object to the closure
of the courtroom at trial. See People v. Vaughn, 821 N.W.2d 288 (Mich. 2012).
13

The fact that the denial of the right to a public trial is a structural error does not
mean than the claim cannot be waived by Petitioner’s failure to object. Although
structural errors are presumed to be prejudicial and thus not subject to harmless error
review, such errors are nevertheless subject to the general rules of waiver, forfeiture,
and default. See Johnson v. United States, 520 U.S. 461, 466 (1997)(waived or forfeited
structural error subject to plain error review under Fed. R.Crim. P. 52(b)). See also
United States v. Suescun, 237 F.3d 1284, 1288, n. 12 (11th Cir. 2001)(“Structural
defects do not absolve a defendant’s waiver of a defense or objection.”). As noted
above, numerous cases have held that the right to a public trial can be waived.
Petitioner’s failure to object to the closure of the courtroom during voir dire thus waives
federal habeas review of his public trial claim. Johnson, 586 F.3d at 444.
Petitioner has failed to show that trial counsel was ineffective for failing to object
to the closure of the courtroom for jury selection, either to excuse the waiver, or as an
independent claim for relief for several reasons.
First, other than Petitioner’s self-serving affidavit, there was no indication that any
members of the public actually left the courtroom during the jury selection. In the
absence of any indication that the public was, in fact, excluded during the voir dire
process, counsel was not ineffective in failing to object.
Secondly, to the extent that the general public may have been excluded during
voir dire, trial counsel’s decision to agree to a closure of the courtroom for a non-public
voir dire could well have been a reasonable trial strategy for the purpose of obtaining
more honest or forthright responses from jurors during such a non-public voir dire, thus,
defeating petitioner’s ineffective assistance of counsel claim. See Horton v. Allen, 370
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F.3d 75, 82-83 (1st Cir. 2004); see also Jones v. Bradshaw,489 F. Supp. 2d 786, 841
(N.D. Ohio 2007).
Thirdly, at the time of Petitioner’s trial in 2009, there was some question as to
whether the Sixth Amendment public trial right applied to the voir dire process. The
Supreme Court had at the time of petitioner’s trial held that the First Amendment right of
public access applied during voir dire, see Press-Enter. Co. v. Super. Ct., 464 U.S. 501,
510-11 (1984), but one justice concurring in that holding suggested that the Sixth
Amendment public trial right might have a more limited scope. See Id. at 516 (Stevens,
J., concurring). Presley was not decided until 2010, after Petitioner’s trial. Because
Petitioner’s counsel at the time of the trial in 2009 may well have reasonably questioned
whether Petitioner had any constitutional right to an open courtroom during voir dire,
counsel was not ineffective for failing to object to the closure of the courtroom during
voir dire. See Woodson v. Hutchinson, 52 Fed. App’x. 195, 198 (4th Cir. 2002).
Finally, assuming that trial counsel was deficient for failing to object to the
closure of the courtroom for voir dire, Petitioner has failed to allege, let alone establish,
that he was actually prejudiced by the closure of the courtroom for jury selection.
Because Petitioner has failed to show that a different result would have happened had
trial counsel objected to the closure of the courtroom for jury selection, Petitioner is not
entitled to habeas relief on his ineffective assistance of trial counsel claim. Hunter v.
Bergh , No. 15-2167, 2016 WL 790966, (6th Cir. Feb. 29, 2016) (finding Strickland not
satisfied where no showing that result would be different had defendant’s sister not
been excluded from courtroom); see also Premo v. Moore, 131 S.Ct. 733 (2011) (finding

15

error in the Ninth Circuit’s incorporation of the prejudice standard governing the
underlying error caused by counsel into the Strickland prejudice inquiry).
In his third claim, Petitioner contends that appellate counsel was ineffective for
failing to raise his public trial claim and a related ineffective assistance of trial counsel
claim on his appeal of right. The Sixth Amendment guarantees a defendant the right to
the effective assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S.
387, 396-397 (1985). However, court appointed counsel does not have a constitutional
duty to raise every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463
U.S. 745, 751 (1983). This court has already determined that Petitioner’s second claim
is without merit. “[A]ppellate counsel cannot be found to be ineffective for ‘failure to
raise an issue that lacks merit.’” Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir.
2010)(quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Because
Petitioner’s second claim cannot be shown to be meritorious, appellate counsel was not
ineffective in her handling of Petitioner’s direct appeal. Petitioner is not entitled to
habeas relief on his ineffective assistance of appellate counsel claim.
A certificate of appealability.
Before Petitioner may appeal this decision, a certificate of appealability must
issue. 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). When a court denies a habeas claim on
the merits, the substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court’s assessment of the claim debatable or wrong.
See Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). “A petitioner satisfies this
16

standard by demonstrating that ... jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller–El v. Cockrell, 537 U.S.
at 327. In applying this standard, a court may not conduct a full merits review, but must
limit its examination to a threshold inquiry into the underlying merits of the claim. Id. at
336–37. “The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254.
Having considered the matter, the court concludes that Petitioner has not made a
substantial showing of the denial of a constitutional right as to his habeas claims.
Accordingly, the court will deny Petitioner a certificate of appealability.
IV. CONCLUSION
IT IS ORDERED that Petitioner Kenneth Johnson’s petition for writ of habeas
corpus [Dkt. # 1] is DENIED.
This court DECLINES to issue a certificate of appealability.
S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: October 12, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, October 12, 2016, by electronic and/or ordinary mail.
S/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C3 ORDERS\14-10976.JOHNSON.2254.ac.chd.wpd

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