Rhines v. Burton
OPINION and ORDER (1) Denying 1 Petition for Writ of Habeas Corpus, (2) Denying Certificate of Appealability, and (3) Granting Permission to Appeal In Forma Pauperis. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 14-cv-12390
Hon. Matthew F. Leitman
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS COPRUS (ECF #1), (2) DENYING CERTIFICATE OF
APPEALABILITY; AND (3) GRANTING PERMISSION TO
APPEAL IN FORMA PAUPERIS
Petitioner Chad Rhines (“Petitioner”) is a state prisoner in the custody of the
Michigan Department of Corrections. On June 18, 2014, Petitioner filed a Petition
for Writ of Habeas Corpus challenging his state-court conviction of voluntary
manslaughter, Mich. Comp. Laws § 750.321 (the “Petition”.) (See ECF # 1.) The
Petitioner raises eight claims for relief, all related to the alleged ineffective
assistance of his trial counsel. Petitioner is not entitled to habeas relief. For the
reasons stated below, the Petition is therefore DENIED. The Court also DENIES
Petitioner a certificate of appealability and GRANTS permission to proceed in
forma pauperis on appeal.
Petitioner and Jamie Rhines were married in December 2003. They had a
daughter, K.R., who was born with cerebral palsy. K.R. is unable to speak and
communicates largely through sounds and gestures.
On November 2, 2008,
Petitioner discovered Jamie and K.R. in bed with another man, LaVern Daniels.
Petitioner then grabbed a knife and engaged in a scuffle with Daniels. Petitioner
stabbed Daniels several times, and Daniels later died as a result of the wounds
At Petitioner’s trial, Jamie and Petitioner told somewhat
conflicting stories about the history of their relationship and about the altercation
that led to Daniels’ death.
Jamie’s version of events is as follows. Jamie testified that she and Petitioner
separated in 2005 after Petitioner pointed a knife at her and threatened to kill her.
(See ECF #8-12 at 94, Pg. ID 928.) Shortly after that incident, Jamie moved out of
a home that she and Petitioner shared into a home on Michelle Drive in Owosso,
Michigan. (See id.) Jamie said that she paid the rent for the home on Michelle Drive,
and while Petitioner would occasionally stay there, he did not have a key to the
home. (See id. at 95, Pg. ID 929.)
Jamie testified that in the fall of 2008, Petitioner came to her home uninvited
almost every day for two months. (See id. at 99-100, Pg. ID 933-34.) Jamie called
the police several times, but Petitioner would leave before authorities arrived. (See
id. at 103, Pg. ID 937.) On November 1, 2008, Petitioner left thirty-four voice mail
messages on Jamie’s phone. (See id. at 143, Pg. ID 977.) Later that day, she changed
her phone number.
On November 2, 2008, the victim, Daniels, visited Jamie at her home. Jamie
testified that after K.R., who was about five years old at that time, went to bed, she
and Daniels had sex in her bed. (See id. at 119, 121, Pg. ID 953, 955.) When they
finished having sex, Daniels fell asleep in the bed wearing only his t-shirt (and not
wearing any pants.) (See id. at 122, Pg. ID 956.) Jamie also fell asleep in the bed.
Later that evening, K.R. woke up and came into Jamie’s bedroom. (See id. at
123, Pg. ID 957.) K.R. was upset and laid down in the bed next to her mother. (See
id. at 123-24, Pg. ID 957-58.) Jamie testified that she was lying in between K.R.
and Daniels and that K.R. was never next to Daniels in the bed. (See id. at 123, Pg.
ID 957.) At that time, Daniels was still wearing a t-shirt, but nothing else. (See id.
at 123-24, Pg. ID 957-58.) Jamie said that she asked Daniels to put pants on, but he
declined. (See id. at 124, Pg. ID 958.)
Just as Jamie was falling back asleep, Jamie heard a loud noise and saw
Petitioner kick down the door to her bedroom. (See id. at 131-32, Pg. ID 965-66.)
She testified that when Petitioner saw Daniels in the bed, he left the room, went to
the kitchen, and returned. (See id.) At that time, Daniels was still asleep. (See id. at
134, Pg. ID 968.) When Petitioner returned from the kitchen, Daniels began to wake
up. (See id.) Petitioner then “pulled the covers off of [Daniels]” and Daniels “leaped
over the end of [the] bed.” (Id. at 134-35, 180-81 Pg. ID 968-69, 1014-15.) Petitioner
and Daniels then got into a fistfight. (See id. at 133, Pg. ID 967.) At around that
same time, Jamie jumped out of bed, reached for her cell phone, and called 911. (See
Jamie did not see a knife when the men were scuffling in the bedroom. (See
id. at 136-37, Pg. ID 970-71.) She testified that Daniels held Petitioner to the side
so that she and K.R. could escape to the bedroom across the hall. (See id.) When
she later emerged from that additional bedroom, neither Petitioner nor Daniels
remained in the house. (See id.) Jamie found a knife (absent a handle) on the kitchen
floor and placed it on the kitchen counter. (See id. at 109-10, Pg. ID 943-44.) She
also found a knife handle behind her bedroom door. (See id. at 116, Pg. ID 950.) As
described below, Petitioner admitted that he stabbed Daniels with a knife as they
fought one another, and Daniels died from those wounds.1
At Petitioner’s trial, Dr. Allecia Wilson testified as an expert in anatomic and
forensic pathology. She performed Daniels’ autopsy on November 3, 2008. Dr.
Wilson identified the cause of Daniels’ death to be multiple stab wounds. (See id. at
22, Pg. ID 856.) In total, Daniels suffered fourteen stab wounds. Two of the stab
wounds were each sufficient, by themselves, to cause death. (See id.at 37, Pg. ID
Petitioner testified in his own defense at trial and told a somewhat different
version of events from Jamie. According to Petitioner, he lived in the home on
Michelle Drive and paid the rent for that home. (See ECF #8-15 at 30, Pg. ID 1495.)
In September 2007, Petitioner began staying at his mother’s home during the week
to shorten his commute to work. (See id. at 34-35, Pg. ID 1499-1500.) On days when
he did not have to work, he stayed at the Michelle Drive home. 2 (See id.)
Petitioner acknowledged that his marriage to Jamie was tumultuous. He
testified that his wife was known to use drugs and drink to excess when he was not
home. (See id. at 50-51, Pg. ID 1515-16.) Petitioner said that on the night of the
murder, he went to the Michelle Drive home and saw an unfamiliar truck parked
outside the home. (See id. at 72, Pg. ID 1537.) He approached the door and heard
what sounded like someone engaged in sexual intercourse. (See id.at 73, Pg. ID
1537.) He also heard sounds from K.R. (See id. at 73-74, Pg. ID 1538-39.) Petitioner
was accustomed to interpreting K.R.’s mood from sounds that she made and the
sounds he heard indicated she was not happy. (See id.) Petitioner testified that he
became concerned and so he forced his way into the home. (See id. at 76, Pg. ID
Petitioner’s mother, Deborah Rhines, also testified for the defense at trial. She
testified that, during the relevant time period, Petitioner lived both at her home and
the home on Michelle Drive. (See ECF #8-15 at 14-15, Pg. ID 1479-80.)
Once inside, Petitioner headed to the bedroom. There, he found three people
lying in Jamie’s bed: Jamie, K.R., and Daniels. (See id. at 77-78., Pg. ID 1541-42.)
Petitioner testified that Daniels’ genitals were about six inches from K.R.’s face.
(See id. at 78-79, Pg. ID 1542-43.) Petitioner then ran to the kitchen to grab a knife.
(See id. at 80, Pg. ID 1544.) He testified that he felt he needed a knife because he
believed that K.R. was being sexually assaulted. (See id. at 81, Pg. ID 1545.)
Petitioner wanted to use the knife to “get [Daniels] away from [K.R.].” (Id. at 80,
Pg. ID 1544.) After Petitioner re-entered the bedroom, Daniels “hopped up” over
Jamie and “locked up” with Petitioner. (See id.) The two men then began fighting
at the end of the bed. During the fight, Daniels punched Petitioner, and Petitioner
stabbed Daniels several times. (See id. at 80-81, Pg. ID 1544-45.)
The fight then shifted down the hall into the kitchen. (See id.) Petitioner
grabbed another knife when they entered the kitchen, and he stabbed Daniels again.
(See id. 83-43, Pg. ID 1547-48.) He testified that Daniels also had a knife and was
attempting to stab him (Petitioner). (See id.) At one point, Petitioner pushed Daniels
up against the refrigerator and believed that that caused a knife to become embedded
in Daniels’ back. (See id. at 84, Pg. ID 1548.) Petitioner denied that he stabbed
Daniels when Daniels’ back was turned to him. (See id. at 86, Pg. ID 1550.) Instead,
he claimed that he reached around Daniels’ back to stab him when the two were
fighting. (See id.)
After Petitioner stabbed Daniels, Daniels left the home through the backyard
of a neighboring house. (See id.) Petitioner then also left the home. (See id. at 87,
Pg. ID 1551.) He drove to the farm where he worked and wrote a suicide note. (See
id. at 93-96.) He called his mother and, while on the phone with her, his brother
arrived at the farm and talked him out of killing himself. (See id. at 100-02.)
Petitioner then surrendered to police and gave a custodial statement in which he
admitted to causing Daniels’ death. (See id. at 103-05, Pg. ID 1567-69.)
Petitioner was charged with felony murder, Mich. Comp. Laws
§ 750.316(1)(b), and first-degree home invasion, Mich. Comp. Laws § 750.110a(2).
Petitioner was tried before a jury in the Shiawassee County Circuit Court. The jury
convicted Petitioner of the lesser offense of voluntary manslaughter and acquitted
him of the first-degree home invasion charge. On January 22, 2010, the state court
sentenced Petitioner to sixteen years, eight months to forty years imprisonment. The
Michigan Court of Appeals affirmed Petitioner’s conviction, People v. Rhines, 2011
WL 923531 (Mich. Ct. App. March 17, 2011), and the Michigan Supreme Court
denied Petitioner leave to appeal. People v. Rhines, 489 Mich. 994 (July 25, 2011).
Petitioner now seeks habeas relief on the grounds that his trial attorney was
ineffective when he failed to (1) move for DNA testing of blood splatter on the door
frame; (2) object when, during jury selection, the trial court told the prospective
jurors that Petitioner and his wife were living apart at the time of the crime; (3) object
to the prosecutor’s closing argument; (4) object to the trial court’s continuing to
instruct the jury while a fire alarm sounded; (5) object to the trial court’s failure to
give a jury instruction on the use of deadly force in self-defense; (6) object to leadcounsel’s absence when the court responded to a jury note; (7) object to the trial
court’s failure to give a “no duty to retreat” instruction; and (8) object to the trial
court’s handling of jury’s question. (See Petition, ECF #1 at Pg. ID 6-10.)
Petitioner first raised these claims in the state trial court when he filed a
motion for relief from judgment after his direct appeals were rejected. The trial court
concluded that Petitioner had procedurally defaulted these claims under Michigan
Court Rule 6.508(D)(3) because he did not raise them on direct appeal, and it
therefore denied the motion. (See 12/18/12 Shiawassee Cir. Ct. Order, #8-19.) The
Michigan Court of Appeals denied Petitioner leave to appeal, People v. Rhines, No.
316739 (Mich. Ct. App. Apr. 28, 2014), as did the Michigan Supreme Court. See
People v. Rhines, 495 Mich. 992 (Mich. 2014).
28 U.S.C. § 2254(d)(1), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), limits a federal court’s review of constitutional
claims raised by a state prisoner in a habeas action where the claims were adjudicated
on the merits by the state courts. Under AEDPA, relief is barred unless the state
court adjudication was “contrary to” or resulted in an “unreasonable application of”
clearly established federal law. 28 U.S.C. § 2254(d)(1). “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 [Section 2254(d)(1)] permits a
federal habeas court to ‘grant the writ if the state court identifies the correct
governing legal 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.
When a petitioner’s claim is denied in state court “due to a state procedural
rule that prevents the state courts from reaching the merits of the petitioner’s claim,
that claim is procedurally defaulted and may not be considered by the federal court
on habeas review.” Seymour v. Walker, 224 F.3d 542, 50 (6th Cir. 2000) (citing
Wainwright v. Sykes, 433 U.S. 72, 80, 84–87 (1977)). A court may excuse such a
procedural default “only [if the Petitioner shows] that were was cause for the default
and prejudice resulting from the default, or that a miscarriage of justice will result
from enforcing the procedural default in the petitioner’s case.” Id. (citing Sykes, 433
U.S. at 87, 90-91.)
As described above, Petitioner raised his ineffective assistance of counsel
claims for the first time in his post-conviction motion for relief from judgment filed
in the state trial court. That court held that Petitioner’s ineffective assistance claims
were procedurally defaulted under Michigan Court Rule 6.508(D)(3) because
Petitioner had failed to raise those claims on direct appeal and because he had failed
to establish good cause for failing to do so. (See 12/18/12 State Ct. Opinion and
Order, ECF #8-19.) Thus, this Court cannot grant Petitioner habeas relief unless he
can show cause and prejudice resulting from the default (or that a miscarriage of
justice will result). He has failed to do so.
As cause to excuse his procedural default, Petitioner argues that he did not
raise these issues on direct appeal because, when his appellate counsel sent him the
trial court record in September 2010, he discovered that transcripts from four pretrial
proceedings were not included. (See Petitioner’s Reply Br., ECF #15 at Pg. ID 2240.)
He did not receive the transcripts until sometime after conclusion of his direct
appeal. (See id. at Pg. ID 2241.)
However, while Petitioner may not have had these transcripts until his direct
appeal ended, it is evident from the correspondence between Petitioner and his
appellate attorney that Petitioner’s appellate counsel did have these transcripts in the
course of representing Petitioner in the Michigan Court of Appeals. (See 11/15/11
Letter from Peter Jon Van Hoek to Chad Rhines, ECF #15, Pg. ID 2269.) Because
Petitioner’s appellate counsel had the transcripts, Petitioner cannot show that his
own lack of access to the transcripts establishes cause for failing to raise the
ineffective assistance of counsel claims on direct review. And Petitioner is not
claiming that his appellate counsel was ineffective for failing to raise on direct appeal
trial counsel’s alleged ineffectiveness.
Petitioner also does not satisfy the “actual innocence” exception to the
procedural default rule. Under that exception, “in an extraordinary case, where a
constitutional violation has probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant [habeas relief] even in the absence of a
showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496
(1986). In order to fall within this exception, a habeas petitioner must show that “it
is more likely than not that no reasonable juror would have convicted him” in view
of “new reliable evidence … that was not presented at trial.” Schlup v. Delo, 513
U.S. 298, 324, 327 (1995). Petitioner has failed to satisfy that burden. He has not
presented any new reliable evidence that he is actually innocent of the crimes for
which he was convicted.
Accordingly, the Court declines to excuse the procedural default. Petitioner
is therefore not entitled to habeas relief.
Even if Petitioner’s procedural default could be excused, he would still not be
entitled to habeas relief on his ineffective assistance of counsel claims. An
ineffective assistance of counsel claim has two components. See Strickland v.
Washington, 466 U.S. 668 (1984).
A petitioner must show that counsel’s
performance was deficient and that the deficiency prejudiced the defense. See id. at
To establish deficient representation, a petitioner must demonstrate that
counsel’s representation “fell below an objective standard of reasonableness.” Id. at
688. In order to establish prejudice, a petitioner must show that, but for the
constitutionally deficient representation, there is a “reasonable probability” that the
outcome of the proceeding would have been different. Id. at 694.
Petitioner’s claims satisfy the Strickland standard.
First, Petitioner argues that his trial counsel was ineffective for failing to move
for DNA testing of the blood splatter found on the kitchen door frame. He reasons
that if testing showed the blood was Petitioner’s, his self-defense theory would have
been bolstered. The problem with Petitioner’s argument is that it is based upon mere
speculation. There is nothing in the record to suggest that the DNA profile of the
door-frame blood splatter would have matched Petitioner’s rather than the victim’s.
He, therefore, cannot show he was prejudiced by counsel’s failure to move for DNA
testing of this sample.
Second, Petitioner maintains that counsel was ineffective in failing to object
to the trial court’s remarks during jury voir dire that “Defendant and his wife were
living apart at the time of the occurrence here in November, 2008, and the occurrence
happened in the home where the wife was resisting…” (ECF #8-10, Pg. ID 61.)
Petitioner contends that trial counsel should have objected to this statement because,
in effect, it directed a verdict against him on an essential element of the homeinvasion charge against him. More specifically, under Michigan law, Petitioner
could not be convicted of first-degree home invasion if he resided in the Michelle
Drive home and that formed a part of his defense. See People v. Toole, 227 Mich.
App. 656, 659 (Mich. Ct. App. 1998.) However, Petitioner cannot show he suffered
prejudice from counsel’s failure to object to the trial court’s remark. Petitioner was
acquitted of the first-degree home invasion charge. Moreover, the trial court later
properly instructed on the first-degree home invasion charge and the proper burden
of proof as to each element. See Richardson v. Marsh, 481 U.S. 200, 211 (1987)
(“[J]uries are presumed to follow their instructions.”).
Third, Petitioner claims counsel was ineffective for failing to object when the
prosecutor called him a “liar” during closing argument. (Petition, ECF # 1 at Pg. ID
10.) The prosecution noted that Petitioner’s story had many inconsistencies and
evolved as he told it, and the prosecutor concluded that Petitioner was not telling the
“[P]rosecutors can argue the record, highlight the inconsistencies or
inadequacies of the defense, and forcefully assert reasonable inferences from the
evidence.” Bates v. Bell, 402 F.3d 635, 646 (6th Cir. 2005.) In this case, the
prosecutor highlighted the inconsistences in Petitioner’s testimony and reasonably
argued that Petitioner was lying. That was not improper. Petitioner therefore cannot
show that counsel was ineffective in failing to object.
Fourth, Petitioner argues that trial counsel should have objected to the judge’s
decision to continue reading jury instructions while a fire alarm was going off. (See
Petition, ECF #1 at Pg. ID 10.) The Court sees no indication in the record that the
jury was unable to hear the instructions while the alarm sounded. Moreover, the trial
court paused to ensure that the jurors were still doing “okay” despite the alarm. (ECF
#8-16 at Pg. ID 1747.) Furthermore, each juror was provided with a copy of the
written instructions to follow along while the judge read the instructions, and each
juror was permitted to take the instructions into the jury room. (See id. at 1735.)
Because the jurors were provided with written instructions and no juror indicated an
inability to hear when the judge paused the proceedings to check if everything was
“okay,” the Court concludes that Petitioner has not shown any prejudice resulting
from trial counsel’s failure to object.
Fifth, Petitioner argues that defense counsel was ineffective for failing to
object to the trial court’s failure to give an instruction on the use of deadly force in
self-defense. (See Petition, ECF # 1 at Pg. ID 9.)
Defense counsel and the
prosecution each requested this instruction (see ECF # 8-18 at Pg. ID 1911, 1913),
but it was not given. No discussions regarding the trial court’s decision not to give
this instruction were placed on the record. Defense counsel did not object to the trial
court’s failure to give this instruction. The Court agrees with Petitioner that the trial
record contained enough evidence to support a self-defense instruction but disagrees
that counsel was ineffective for failing to object to the trial court’s failure to give
such an instruction.
Under Michigan law, one acts lawfully in self-defense if he or she honestly
and reasonably believes that he is in danger of serious bodily harm or death, as
judged by the circumstances as they appeared to the defendant at the time of the act.
See Blanton v. Elo, 186 F.3d 712, 713, n. 1 (6th Cir. 1999) (citing People v. Heflin,
434 Mich. 482, 456 N.W. 2d 10 (1990)). Petitioner’s and Jamie’s testimony at trial
provided some support for a self-defense instruction. For instance, Jamie testified
that when Petitioner burst into her bedroom for the second time, and after he ripped
the covers off Daniels, Daniels jumped off the bed and started fighting with
Petitioner. And Petitioner testified that Daniels punched him repeatedly and tried to
However, the thrust of Petitioner’s own testimony was that he acted to protect
his daughter, not himself. Petitioner testified that he retrieved a knife to use against
Daniels as soon as he saw Daniels lying next to his daughter and before Daniels
jumped off the bed and came toward him. There is some obvious tension between
this testimony – i.e., that Petitioner grabbed a deadly weapon before he personally
faced any danger – and a self-defense defense. And given this tension, it was not
unreasonable for defense counsel to adopt the defense-of-others defense instead of
(1) a self-defense defense or (2) a combination of both defenses. Moreover, the fact
that the jury rejected Petitioner’s defense-of-others defense provides some indication
that they did not believe Petitioner and makes it unlikely that the jury would have
accepted a self-defense defense that rested in large part upon Petitioner’s testimony.
In sum, while the record could have supported a self-defense instruction, Petitioner
has not shown that counsel was unreasonable for failing to object to the trial court’s
failure to give that instruction, nor has Petitioner shown a reasonable probability that
the result of the proceeding would have been different if that iinstruction had been
Sixth, Petitioner argues that counsel was ineffective for failing to object when
the court responded to a note from the jury when lead defense counsel was not
present but co-counsel was. The jury submitted notes to the court on two separate
occasions. The record shows that both attorneys representing Petitioner were present
when the court discussed the first note outside the jury’s presence and when the court
responded to the first note. (See ECF #8-16 at Pg. ID 1761-62.) With regard to the
second note, it is not clear whether both attorneys were present. Only one of
Petitioner’s attorneys responded on the record, but this does not establish that only
one attorney was present. (See id. at Pg. ID 1764.) Petitioner has not identified any
Supreme Court precedent requiring that the entire defense team be present at all
proceedings before the court, and this Court is unaware of any precedent requiring
as much. In addition, even if lead counsel was absent, Petitioner fails to allege any
way in which he was prejudiced by lead counsel’s absence.
Seventh, Petitioner claims that defense counsel was ineffective in failing to
object when the trial court declined to instruct the jury that Petitioner had no duty to
retreat. The instructions as given did not impose upon Petitioner a duty to retreat.
The instructions adequately informed the jury about Petitioner’s defense and that
Petitioner could take reasonable steps to protect his daughter if he reasonably
believed that she was subject to serious physical injury. Petitioner has not shown a
reasonable probability that the result of the proceeding would have been different
had his attorney objected to the absence of the duty to retreat instruction.
Petitioner final claim concerns the trial court’s response to a jury note asking
for clarification on the difference between “manslaughter and defense of others
(deadly force) if any.” (ECF #8-16 at Pg. ID 1765.) The trial court responded to that
question by informing the jury that those concepts were defined in the written
instructions and referring the jury to those instructions. (See id.) The trial court also
invited the jurors to “powwow” in the jury box to construct a clearer question for the
court to consider. (Id.) The jury did so and presented the court with another question.
(See id. at 1765-66.) The basis for Petitioner’s challenge is somewhat unclear. As
best the Court can discern, he challenges the invitation to the jury to confer in the
jury box as a violation of the principle that jury deliberations shall remain private
and secret. See United States v. Olano, 507 U.S. 725, 737-38 (1993). However,
Petitioner fails to show that anyone in the courtroom could overhear the jurors’
discussion while they were “huddle[d]” together. (ECF #8-16 at Pg. ID 1765.) Nor
has he identified any prejudice resulting from the jury’s brief discussion in the jury
box. Defense counsel was therefore not ineffective in failing to object.
The Court concludes that Petitioner’s claims lack merit and that he is not
entitled to federal habeas relief. Accordingly, the Court DENIES and DISMISSES
the Petition WITH PREJUDICE.
Before Petitioner may appeal the Court’s 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 relief 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 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. 322, 327 (2003).
The Court concludes that Petitioner has failed to demonstrate that jurists could
conclude the issues presented here are adequate to deserve encouragement to
proceed further. Accordingly, the Court DENIES a certificate of appealability.
Although this Court has denied Petitioner a certificate of appealability, the
standard for granting an application for leave to proceed in forma pauperis (“IFP”)
is lower than the standard for certificates of appealability. See Foster v. Ludwick,
208 F.Supp.2d 750, 764 (E.D. Mich. 2002) (citing United States v. Youngblood, 116
F.3d 1113, 1115 (5th Cir. 1997)). While a certificate of appealability may only be
granted if a petitioner makes a substantial showing of the denial of a constitutional
right, a court may grant IFP status if it finds that an appeal is being taken in good
faith. See Foster at 764-65; see also 28 U.S.C. § 1915(a)(3); Fed. Rule App. Proc.
24(a). Although jurists of reason could not debate this Court’s resolution of
Petitioner’s claims, the issues Petitioner raises are not frivolous. Therefore,
Petitioner could appeal this Court’s decision in good faith. The Court therefore
GRANTS Petitioner leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
Dated: August 7, 2017
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on August 7, 2017, by electronic means and/or
s/Holly A. Monda
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