Brooks v. Bergh

Filing 7

OPINION and ORDER denying the petition for writ of habeas corpus and declining to issue a certificate of appealability and leave to appeal in forma pauperis. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDWIN DEWAYNE BROOKS,
Petitioner,
CIVIL NO. 2:14-CV-12576
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT COURT

v.
DAVID BERGH,

Respondent.
________________________________/
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
Edwin DeWayne Brooks, (“Petitioner”), confined at the Thumb Correctional Facility
in Lapeer, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In his pro se application, petitioner challenges his conviction for first-degree home invasion,
M.C.L.A. 750.110a(2); second-degree home invasion, M.C.L.A. 750.110a(3); receiving and
concealing stolen firearms, M.C.L.A. 750.535b; felon in possession of a firearm, M.C.L.A.
750.224f; and receiving and concealing a stolen motor-vehicle, M.C.L.A. 750.535(7). For
the reasons stated below, the petition for writ of habeas corpus is SUMMARILY DENIED
WITH PREJUDICE.
I. Background
Petitioner was convicted of the above offenses following a jury trial in the Berrien
County Circuit Court. Petitioner’s conviction was affirmed on appeal by the Michigan Court
of Appeals. People v. Brooks, No. 293840;2011 WL 4389217 (Mich.Ct.App. September 20,
2011). Petitioner filed an application for leave to appeal with the Michigan Supreme Court.
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While that application was pending, petitioner filed a petition for writ of habeas corpus,
which was dismissed without prejudice because petitioner had failed to exhaust his claims
with the state courts. Brooks v. Bergh, No. 2:12-CV-10573; 2012 WL 530087 (E.D.Mich.
February 17, 2012). The Michigan Supreme Court subsequently denied petitioner leave
to appeal. People v. Brooks, 491 Mich. 919, 812 N.W.2d 732 (2012).
Petitioner then filed a post-conviction motion for relief from judgment pursuant to
M.C.R. 6.500, et. Seq., which was denied by the Berrien County Circuit Court. Petitioner
does not appear to have appealed the denial of his post-conviction motion to the Michigan
appellate courts. 1
Petitioner has filed a document entitled “Special Circumstances Requiring Prompt
Intervention Into State Court Case.” Within his pleadings, petitioner references several
times to 28 U.S.C. § 2254, the federal habeas statute, and asks that a writ of habeas
corpus be granted and that his criminal conviction be vacated. Given that petitioner
specifically refers to the habeas corpus statute and requests immediate release from his
conviction, this Court will construe his action as a petition for writ of habeas corpus brought
pursuant to 28 U.S.C. § 2254. See e.g. Simpson v. Caruso, 355 Fed. Appx. 927, 930 (6th
Cir. 2009).

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Petitioner does not indicate in his pleadings that he ever appealed the denial of his postconviction motion for relief from judgment to the Michigan appellate courts. Petitioner also did not provide
this Court with a complete copy of the Berrien County Circuit Court judge’s order denying his postconviction motion, so this Court is unable to determine the date that the post-conviction motion was
denied. There is no indication from the Michigan Court of Appeals’ website, coa.courts.mi.gov/ and
Westlaw’s website, www.westlaw.com, that petitioner filed any appeal following the denial of this motion
by the Berrien County Circuit Court. Public records and government documents, including those available
from reliable sources on the Internet, are subject to judicial notice. See United States ex. rel. Dingle v.
BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003). A federal district court is also permitted to
take judicial notice of another court’s website. See e.g. Graham v. Smith, 292 F. Supp. 2d 153, 155, n. 2
(D. Me. 2003).

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Petitioner seeks habeas relief from his conviction on the ground that the Berrien
County Circuit Court lacked jurisdiction to try his case. Petitioner specifically contends that
the trial court lacked jurisdiction over his case because the prosecutor and police violated
the Federal Kidnaping Act when they extradited petitioner from the State of Indiana without
first obtaining a proper complaint or arrest warrant. Petitioner also appears to argue that
the trial court lacked jurisdiction over his case because of an improper bindover following
the preliminary examination. Lastly, petitioner appears to argue that the state trial court
judge erred in denying his post-conviction motion for relief from judgment.
II. Standard of Review
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, 405-06 (2000). An
“unreasonable application” occurs when “a state court decision unreasonably applies the
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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 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, 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, 131 S. Ct. 770, 786
(2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
emphasized “that even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (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.
In addition, a petition for a writ of habeas corpus must set forth facts that give rise
to a cause of action under federal law or it may summarily be dismissed. See Perez v.
Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001). Federal courts are also
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authorized to dismiss any habeas petition that appears legally insufficient on its face. See
McFarland v. Scott, 512 U.S. 849, 856 (1994). A federal district court is authorized to
summarily dismiss a habeas corpus petition if it plainly appears from the face of the
petition or the exhibits that are attached to it that the petitioner is not entitled to federal
habeas relief. See Carson v. Burke, 178 F. 3d 434, 436 (6th Cir. 1999); Rules Governing
§ 2254 Cases, Rule 4, 28 U.S.C. foll. § 2254. The Sixth Circuit, in fact, long ago indicated
that they “disapprove the practice of issuing a show cause order [to the respondent] until
after the District Court first has made a careful examination of the petition.” Allen v. Perini,
424 F. 3d 134, 140 (6th Cir. 1970). A district court therefore has the duty to screen out any
habeas corpus petition which lacks merit on its face. Id. at 141. No return to a habeas
petition is necessary when the petition is frivolous, or obviously lacks merit, or where the
necessary facts can be determined from the petition itself without consideration of a return
by the state. Id.
After undertaking the review required by Rule 4, this Court concludes, for reasons
stated in greater detail below, that petitioner’s claims do not entitle him to habeas relief,
such that the petition must be summarily denied. See Robinson v. Jackson, 366 F. Supp.
2d 524, 525 (E.D. Mich. 2005).
III. Discussion
Petitioner argues that his conviction should be set aside because the state trial
court never obtained jurisdiction over his case because the prosecutor and the police
violated the Federal Kidnaping Act by forcibly abducting petitioner from the State of
Indiana without first obtaining a proper criminal complaint or arrest warrant. Petitioner
further contends that the Berrien County Circuit Court never acquired jurisdiction over his
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case because of defects at the preliminary examination. Petitioner also appears to argue
that the trial judge erred in denying his post-conviction motion.
As an initial matter, it is unclear whether petitioner properly exhausted his claims
with the state courts. As a general rule, a state prisoner seeking federal habeas relief
must first exhaust his available state court remedies before raising a claim in federal court.
28 U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U. S. 270, 275-78 (1971). A
prisoner confined pursuant to a Michigan conviction must raise each habeas issue in both
the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal
habeas corpus relief. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). A
habeas petitioner has the burden of proving that he or she has exhausted his or her state
court remedies. Sitto v. Bock, 207 F. Supp. 2d 668, 675 (E.D. Mich. 2002). The failure to
exhaust state court remedies may be raised sua sponte by a federal court. See Benoit v.
Bock, 237 F. Supp. 2d 804, 806 (E.D. Mich. 2003); 28 U.S.C. § 2254(b)(3).
Federal habeas corpus relief is unavailable to a state prisoner who fails to allege
that he or she has exhausted his or her available state court remedies. See Granville v.
Hunt, 411 F. 2d 9, 11 (5th Cir. 1969). The instant petition is subject to dismissal, because
petitioner has failed to allege or indicate in his petition that he has exhausted his state
court remedies. See Peralta v. Leavitt, 56 Fed. Appx. 534, 535 (2nd Cir. 2003); See also
Fast v. Wead, 509 F. Supp. 744, 746 (N.D. Ohio 1981).
Although petitioner raised his claims in his post-conviction motion, there is no
indication that petitioner appealed the denial of that post-conviction motion to the Michigan
appellate courts. In order to exhaust a claim for federal habeas review, a petitioner must
present each ground to both state appellate courts, even where the state’s highest court
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provides only discretionary review. See O’Sullivan v. Boerckel, 526 U.S. 838, 845-47
(1999). Denial of a motion for relief from judgment is reviewable by the Michigan Court
of Appeals and the Michigan Supreme Court upon the filing of an application for leave to
appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. See Wagner v. Smith, 581 F. 3d 410,
414 (6th Cir. 2009). Because petitioner failed to complete the appellate process for any
post-conviction motion that he filed, he has failed to satisfy the exhaustion requirement.
See e.g. Paffhousen v. Grayson, 238 F. 3d 423 (Table), No. 2000 WL 1888659, * 2 (6th
Cir. December 19, 2000); Mohn v. Bock, 208 F. Supp. 2d at 800. Where a habeas
petitioner has an opportunity under state law to file an appeal following the state trial
court’s denial of a state post-conviction motion, the petitioner has failed to exhaust his or
her state court remedies. See Cox v. Cardwell, 464 F. 2d 639, 644-45 (6th Cir. 1972).
Nonetheless, a habeas petitioner’s failure to exhaust his or her state court remedies
does not deprive a federal court of its jurisdiction to consider the merits of the habeas
petition. Granberry v. Greer, 481 U.S. 129, 131 (1987). A habeas petitioner’s failure to
exhaust his or her state court remedies is not a bar to federal habeas review of the claim
“when the claim is plainly meritless and it would be a waste of time and judicial resources
to require additional court proceedings.” Friday v. Pitcher, 200 F. Supp. 2d 725, 744 (E.D.
Mich. 2002); 28 U.S.C. § 2254(b)(1)(A)(c). Because petitioner’s claims lack merit, in the
interests of efficiency and justice, the Court will address petitioner’s claims, rather than
dismiss the petition on exhaustion grounds. See Welch v. Burke, 49 F. Supp. 2d 992, 998
(E.D. Mich. 1999).
Petitioner’s primary claim is that the Berrien County Circuit Court lacked jurisdiction
over his case.
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The determination of whether a state court is vested with jurisdiction under state
law over a criminal case is a function of the state courts, not the federal courts. Wills v.
Egeler, 532 F. 2d 1058, 1059 (6th Cir. 1976); See also Daniel v. McQuiggin, 678 F.Supp.
2d 547, 553 (E.D. Mich. 2009). The Sixth Circuit has noted that “[a] state court's
interpretation of state jurisdictional issues conclusively establishes jurisdiction for purposes
of federal habeas review.” Strunk v. Martin, 27 Fed. Appx. 473, 475 (6th Cir. 2001).
Petitioner’s claim that the trial court lacked jurisdiction to try his case for the most part
raises an issue of state law, because it questions the interpretation of Michigan law, and
is therefore not cognizable in federal habeas review. See United States ex. rel. Holliday
v. Sheriff of Du Page County, Ill., 152 F. Supp. 1004, 1013 (N.D. Ill. 2001); Cf. Toler v.
McGinnis, 23 Fed. Appx. 259, 266 (6th Cir. 2001)(district court lacked authority on habeas
review to review petitioner’s claim that the state court erred in refusing to instruct jury on
the requirements for extraterritorial jurisdiction, because the claim was contingent upon
an interpretation of an alleged violation of state law).
Petitioner’s claim that the Michigan prosecutor and police violated the Federal
Kidnaping Act by “forcibly abducting” him by obtaining his extradition from the State of
Indiana without a proper arrest warrant or complaint would not deprive the state court of
jurisdiction to try him nor would it entitle him to relief.
“An illegal arrest, without more, has never been viewed as a bar to subsequent
prosecution, nor as a defense to a valid conviction.” United States v. Crews, 445 U.S. 463,
474 (1980)(citing Gerstein v. Pugh, 420 U.S. 103, 119 (1975)); See also Frisbie v. Collins,
342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886). Indeed, the Supreme Court in
Frisbie held that the mere fact that a habeas petitioner had been seized and forcibly
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abducted from one state to another by police officers acting beyond their territorial
jurisdiction in violation of the Federal Kidnaping Act did not show any denial of due
process of law which would invalidate his subsequent conviction. Frisbie, 342 U.S. at 52223.

The Supreme Court has held that “[T]he ‘body’ or identity of a defendant or

respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an
unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation
occurred.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). Although the exclusionary
rule prohibits the introduction at trial of evidence that was seized in violation of the
constitution, a criminal defendant “is not himself a suppressible ‘fruit,’ and the illegality of
his detention cannot deprive the Government of the opportunity to prove his guilt through
the introduction of evidence wholly untainted by the police misconduct.” Crews, 445 U.S.
at 474.
Petitioner does not identify any evidence other than his own body that was seized
during this allegedly unlawful arrest. Thus, the mere fact that petitioner may have been
arrested without probable cause or brought back to Michigan in violation of the Federal
Kidnaping Act would not prevent him from being prosecuted and convicted of these
offenses. Moreover, to the extent that petitioner challenges the extradition proceedings
from Indiana to Michigan, petitioner’s return to the State of Michigan rendered the
challenge to the extradition moot. See Barton v. Norrod, 106 F. 3d 1289, 1298 (6th Cir.
1997).
To the extent that petitioner challenges the admissibility of any evidence seized as
a result of his allegedly illegal detention, he would nonetheless not be entitled to habeas
relief on this claim as well. A federal habeas review of a petitioner’s arrest or search by
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state police is barred where the state has provided a full and fair opportunity to litigate an
illegal arrest or a search and seizure claim. Stone v. Powell, 428 U.S. 465, 494-95 (1976);
Machacek v. Hofbauer, 213 F. 3d 947, 952 (6th Cir. 2000). For such an opportunity to
have existed, the state must have provided, in the abstract, a mechanism by which the
petitioner could raise the claim, and presentation of the claim must not have been
frustrated by a failure of that mechanism. Riley v. Gray, 674 F. 2d 522, 526 (6th Cir. 1982).
The relevant inquiry is whether a habeas petitioner had an opportunity to litigate his
claims, not whether he in fact did so or even whether the Fourth Amendment claim was
correctly decided. See Wynne v. Renico, 279 F. Supp. 2d 866, 892 (E.D. Mich. 2003);
rev’d on other grds 606 F.3d 867 (6th Cir. 2010). Indeed, under Stone, the correctness of
a state court’s conclusions regarding a Fourth Amendment claim “is simply irrelevant.” See
Brown v. Berghuis, 638 F. Supp, 2d 795, 812 (E.D. Mich. 2009). “The courts that have
considered the matter ‘have consistently held that an erroneous determination of a habeas
petitioner’s Fourth Amendment claim does not overcome the Stone v. Powell bar.’” Id.
(quoting Gilmore v. Marks, 799 F.2d 51, 57 (3rd Cir. 1986)). Thus, an argument by a
habeas petitioner that is “directed solely at the correctness of the state court decision [on
a Fourth Amendment claim] ‘goes not to the fullness and fairness of his opportunity to
litigate the claim[s], but to the correctness of the state court resolution, an issue which
Stone v. Powell makes irrelevant.’” Brown, 638 F. Supp. 2d at 812-13 (quoting Siripongs
v. Calderon, 35 F. 3d 1308, 1321 (9th Cir. 1994)).
Petitioner is unable to raise a Fourth Amendment claim that the evidence in this
case was the product of an illegal arrest or search because he indicates in his pleadings
that he filed a pre-trial motion to suppress the evidence, which was denied by the trial
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court. Machacek, 213 F. 3d at 952; Monroe v. Smith, 197 F. Supp. 2d 753, 766 (E.D. Mich.
2001). Because petitioner was afforded opportunities to present his case regarding the
validity of the arrest, Stone bars his Fourth Amendment claim. Brown, 638 F. Supp. 2d at
813.
The Court is aware that petitioner appears to argue throughout his pleadings that
the prosecutor withheld evidence of his felony complaint and felony warrant, which
petitioner claims prevented him from adequately challenging the legality of his arrest.
Petitioner’s claim is itself barred by the Stone v. Powell doctrine because it essentially
involves a Fourth Amendment attack on the validity of petitioner’s search and arrest. See
O'Quinn v. Estelle, 574 F. 2d 1208, 1209-10 (5th Cir. 1978) (petitioner’s claim that
prosecution failed to disclose exculpatory information, which involves due process
guaranty of a fair trial, was part of petitioner’s Fourth Amendment claim, since exculpatory
information would eventually be used to attack the search warrant); See also Simpson v.
Kreiger, 565 F.2d 390, 392 (6th Cir. 1977)(refusal to disclose informant’s identity did not
deny petitioner a full and fair opportunity to litigate Fourth Amendment claims in state
court). Petitioner would not be entitled to habeas relief on this claim.
Petitioner further claims that the Berrien County Circuit Court never acquired
jurisdiction over his case because various errors committed at the preliminary examination
rendered the bindover to the circuit court defective.
A prior judicial hearing is not a prerequisite to prosecution by information. Gerstein
v. Pugh, 420 U.S. at 119. There is no federal constitutional right to a preliminary
examination. See United States v. Mulligan, 520 F. 2d 1327, 1329 (6th Cir. 1975); Dillard
v. Bomar, 342 F. 2d 789, 790 (6th Cir. 1965). Even if the bindover may have been
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defective, such a violation of petitioner’s state statutory rights does not warrant federal
habeas relief, nor would it deprive the Berrien County Circuit Court of jurisdiction. See e.g.
Tegeler v. Renico, 253 Fed. Appx. 521, 525-26 (6th Cir. 2007).
Finally, any claim by petitioner that the Berrien County Circuit Court wrongfully
denied him post-conviction relief is non-cognizable. This Court notes that “[t]he Sixth
Circuit consistently held that errors in post-conviction proceedings are outside the scope
of federal habeas corpus review.” Cress v. Palmer, 484 F. 3d 844, 853 (6th Cir. 2007).
Thus, a federal habeas corpus petition cannot be used to mount a challenge to a state’s
scheme of post-conviction relief. See Greer v. Mitchell, 264 F. 3d 663, 681 (6th Cir. 2001).
The reason for this is that the states have no constitutional obligation to provide postconviction remedies. Id. (citing to Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)).
Challenges to state collateral post-conviction proceedings “cannot be brought under the
federal habeas corpus provision, 28 U.S.C. § 2254,” because “‘the essence of habeas
corpus is an attack by a person in custody upon the legality of that custody, and ... the
traditional function of the writ is to secure release from illegal custody.’” Kirby v. Dutton,
794 F. 2d 245, 246 (6th Cir. 1986)(quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)).
“A due process claim related to collateral post-conviction proceedings, even if resolved in
a petitioner’s favor, would not ‘result [in] ... release or a reduction in ... time to be served
or in any other way affect his detention because we would not be reviewing any matter
directly pertaining to his detention.’” Cress, 484 F. 3d at 853 (quoting Kirby, 794 F. 2d at
247). Thus, the “‘scope of the writ’” does not encompass a “‘second tier of complaints
about deficiencies in state post-conviction proceedings.’” Cress, 484 F. 3d at 853 (quoting
Kirby, 794 F. 2d at 248). “[T]he writ is not the proper means to challenge collateral matters
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as opposed to the underlying state conviction giving rise to the prisoner’s incarceration.”
Id. (internal quotations omitted).
The Court will summarily deny the petition for writ of habeas corpus. The Court will
also deny petitioner’s motion for the appointment of counsel. There is no constitutional
right to counsel in habeas proceedings. Cobas v. Burgess, 306 F. 3d 441, 444 (6th Cir.
2002). Because petitioner’s claims lacks any merit, the Court will deny petitioner’s request
for the appointment of counsel. See Lemeshko v. Wrona, 325 F. Supp. 2d 778, 788 (E.D.
Mich. 2004).
IV. Conclusion
The Court will summarily deny the petition for writ of habeas corpus with prejudice.
The Court will also deny a certificate of appealability to petitioner. In order to obtain a
certificate of appealability, a prisoner must make a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is
required to show that reasonable jurists could debate whether, or 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,
483-84 (2000). A habeas petitioner should be granted a certificate of appealability
permitting him to appeal from the summary dismissal of his habeas petition only if
reasonable jurists could disagree with the district court’s application of Rule 4 to summarily
dismiss the petitioner’s claims. See Boutwell v. Keating, 399 F. 3d 1203, 1211 (10th Cir.
2005). “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; See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich.
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2010).
For the reasons stated in this opinion, the Court will deny petitioner a certificate of
appealability because he has failed to make a substantial showing of the denial of a
federal constitutional right. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich.
2001). Indeed, it would be a “rare case” in which a district judge issues a habeas
petitioner a certificate of appealability to appeal after he or she dismisses a habeas petition
without requiring an answer because it plainly appeared from the face of the petition and
any exhibits annexed to it that the petitioner was not entitled to habeas relief. See e.g.
Alexander v. Harris, 595 F. 2d 87, 91 (2nd Cir. 1979); Myers v. Ludwick, No.
2:09-CV-14610; 2009 WL 4581693, * 4 (E.D. Mich. December 3, 2009). The Court will
also deny petitioner leave to appeal in forma pauperis, because the appeal would be
frivolous. Allen v. Stovall, 156 F. Supp. 2d at 798.
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas
corpus is SUMMARILY DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motion for the appointment of counsel [Dkt.
# 3] is DENIED.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma
pauperis.
s/ Nancy G. Edmunds
HON. NANCY G. EDMUNDS
UNITED STATES DISTRICT COURT
Dated: July 17, 2014
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