Dawson v. Rapelje

Filing 14

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus and declining to issue a certificate of appealability or leave to appeal in forma pauperis. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT CO URT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TIMOTHY DAWSON,
Petitioner,
CASE NO. 2:14-CV-12603
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

v.
LLOYD RAPELJE,
Respondent.
/

OPINION AND ORDER DENYING THE PETITION FOR WRIT
OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
Timothy Dawson, (“petitioner”), confined at the Lakeland Correctional Facility in
Coldwater, 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 for firstdegree murder, M.C.L.A. 750.316. For the reasons stated below, the petition for writ of
habeas corpus is DENIED.
I. Background
Petitioner was convicted following a jury trial in the Kent County Circuit Court.
Petitioner’s conviction arises from the strangulation of his wife.
Petitioner’s conviction was affirmed on appeal. People v. Dawson, No. 289931,
2010 WL 2629784 (Mich. Ct. App. July 1, 2010); lv. den. 488 Mich. 995, 791 N.W.2d
465 (2010).
Petitioner filed a petition for writ of habeas corpus, seeking relief on the claims he
raised on his direct appeal in the state courts. See Dawson v. Rapelje, No. 2:11-CV-

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15626 (E.D. Mich.). Petitioner moved to hold the petition in abeyance so that he could
return to the state courts to exhaust additional claims. The Court denied the motion to
stay. In response, petitioner moved to voluntarily dismiss his petition for writ of habeas
corpus, which was granted. See Dawson v. Rapelje, No. 2:11-CV-15626 (E.D. Mich.
May 23, 2012).
Petitioner filed a post-conviction motion for relief from judgment with the state
courts, which was denied. People v. Dawson, No. 08-03462-FC (Kent County Circuit
Court, August 28, 2012). The Michigan appellate courts denied petitioner leave to
appeal. People v. Dawson, No. 314882 (Mich.Ct.App. October 23, 2013); lv. den. 495
Mich. 1005, 846 N.W.2d 556 (2014).
In his current petition, petitioner seeks habeas relief on the following grounds:
I. The petitioner was denied due process of law pursuant to the Fourteenth
Amendment to the United States Constitution when the state trial court
allowed the prosecution to use other acts (“bad acts”) that raised an
inference that the petitioner had a propensity to commit the charged crime,
and when the prosecutor engaged in misconduct by relying on this evidence
to argue about the type of person petitioner was.
II. The petitioner was denied his constitutional rights under the Sixth and
Fourteenth (Due Process) Amendments of the United States Constitution
when the petitioner was deprived of his right to compulsory process,
confrontation and his guaranteed right to present a defense when the trial
court disallowed a witness (Dwin Dykema) to testify about the deceased’s
“kinky side” in order to show that the decedent had an alternative lifestyle.
III. The petitioner was denied his constitutional rights pursuant to the Due
Process Claus of the Fourteenth Amendment of the United States
Constitution when: (A) his conviction rests upon insufficient evidence and, (B)
appellate counsel failed to raise the insufficient evidence on appeal.
IV. The petitioner was denied his constitutional rights under the Fifth, Sixth
and Fourteenth Amendments of the United States Constitution when: (1)
government officials, while the petitioner was represented by counsel, used
a known informant who had acted in direct concert with state officials during
(purported) incriminating pretrial jail conversations with the petitioner, and

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these jailhouse conversations were used against the petitioner at the trial; (2)
trial counsel neglected to file any type of pretrial exclusionary motions to
thwart the incriminating testimony of the informant, nor did defense counsel
object to the in-trial informant testimony, and (3) appellate counsel failed to
brief the issue on the appeal as of right.
V. The petitioner was denied the effective assistance of: (A) trial and, (B)
appellate counsel in violation of the Sixth and Fourteenth Amendments of the
United States Constitution when counsel failed to obtain and investigate
potential exonerating evidence in the form of telephone records from the Auto
Owners Insurance Company (AIOC).

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, 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.”

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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. “[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)). In order to obtain habeas relief in federal court, a state prisoner is
required to show that the state court’s rejection of his claim “was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at 103.
III. Discussion
A. Claim # 1. The prior bad acts evidence claim.
Petitioner first claims that he is entitled to habeas relief because the trial court
permitted the prosecutor to introduce prior bad acts evidence in the form of petitioner’s
past abuse and improper treatment of the victim. Petitioner claims that this evidence
was not admitted for a proper purpose under M.R.E. 404(b), but was used merely to
show that petitioner was a bad person who had a propensity to commit the murder.
Petitioner further claims that the evidence was more prejudicial than probative.
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
A federal court is limited in federal habeas review to deciding whether a state court
conviction violates the Constitution, laws, or treaties of the United States. Id. Thus,

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errors in the application of state law, especially rulings regarding the admissibility of
evidence, are usually not questioned by a federal habeas court. Seymour v. Walker,
224 F. 3d 542, 552 (6th Cir. 2000).
Petitioner's claim that he was denied a fair trial by the admission of irrelevant and
highly prejudicial evidence cannot form the basis for habeas relief, because it involves a
state law evidentiary issue. See Hall v. Vasbinder, 551 F. Supp. 2d 652, 676 (E.D. Mich.
2008); rev’d on other grds 563 F.3d 222 (6th Cir. 2009); See also Oliphant v. Koehler,
451 F. Supp. 1305, 1308 (W.D. Mich. 1978).
Petitioner’s claim that the state court violated M.R.E. 404(b) by admitting this
evidence is non-cognizable on habeas review. Bey v. Bagley, 500 F 3d 514, 519 (6th
Cir. 2007); Estelle, 502 U.S. at 72 (Supreme Court’s habeas powers did not permit
Court to reverse state court conviction based on their belief that the state trial judge
erred in ruling that prior injury evidence was admissible as bad acts evidence under
California law); Dowling v. U.S., 493 U.S. 342, 352-53 (1990)(admission at defendant’s
bank robbery trial of “similar acts” evidence that he had subsequently been involved in a
house burglary for which he had been acquitted did not violate due process). The
admission of this “prior bad acts” or “other acts” evidence against petitioner at his state
trial does not entitle him to habeas relief, because there is no clearly established
Supreme Court law which holds that a state violates a habeas petitioner’s due process
rights by admitting propensity evidence in the form of “prior bad acts” evidence. See
Bugh v. Mitchell, 329 F. 3d 496, 512 (6th Cir. 2003). Petitioner is not entitled to relief on
his first claim.

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B. Claims # 2-5. The procedurally defaulted claims.
The Court will discuss petitioner’s procedurally defaulted claims together for
judicial economy and clarity. Respondent claims that petitioner’s remaining claims are
procedurally defaulted for various reasons.
When the state courts clearly and expressly rely on a valid state procedural bar,
federal habeas review is also barred unless petitioner can demonstrate “cause” for the
default and actual prejudice as a result of the alleged constitutional violation, or can
demonstrate that failure to consider the claim will result in a “fundamental miscarriage of
justice.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). If a habeas petitioner
fails to show cause for his procedural default, it is unnecessary for the court to reach the
prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an
extraordinary case, where a constitutional error has probably resulted in the conviction
of one who is actually innocent, a federal court may consider the constitutional claims
presented even in the absence of a showing of cause for procedural default. Murray v.
Carrier, 477 U.S. 478, 479-80 (1986). However, to be credible, such a claim of
innocence requires a petitioner to support the allegations of constitutional error with new
reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324
(1995). “‘[A]ctual innocence' means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 624 (1998).
In his second claim, petitioner alleges that his constitutional right to present
a defense and to confront witnesses was violated when the trial court excluded
evidence of the contents of e-mail communications that petitioner wished to
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introduce to show the victim’s “kinky side.”
Respondent contends that petitioner’s second claim is procedurally
defaulted because although petitioner sought the admission of these e-mails, he
never argued that the exclusion of this evidence violated his constitutional right to
present a defense and thus failed to preserve the claim.
The Michigan Court of Appeals ruled that petitioner’s claim was
unpreserved because he failed to argue that the exclusion of the evidence
violated petitioner’s right to present a defense, thus, that court reviewed the claim
for plain error. Finding none, the Michigan Court of Appeals rejected petitioner’s
claim. Dawson, 2010 WL 2629784, at *4-5.
In this case, the Michigan Court of Appeals clearly indicated that by failing
to object to the exclusion of this evidence on constitutional grounds at trial,
petitioner had not preserved his second claim. The fact that the Michigan Court
of Appeals engaged in plain error review of petitioner’s claim does not constitute
a waiver of the state procedural default. See Seymour v. Walker, 224 F. 3d at
557. Instead, this Court should view the Michigan Court of Appeals’ review of
petitioner’s claim for plain error as enforcement of the procedural default. See
Hinkle v. Randle, 271 F. 3d 239, 244 (6th Cir. 2001). In addition, the mere fact
that the Michigan Court of Appeals also discussed the merits of petitioner’s claim
does not mean that this claim was not procedurally defaulted. A federal court
need not reach the merits of a habeas petition where the last state court opinion
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clearly and expressly rested upon procedural default as an alternative ground,
even though it also expressed views on the merits. McBee v. Abramajtys, 929 F.
2d 264, 267 (6th Cir. 1991). Petitioner’s claim is procedurally defaulted.
Petitioner has offered no reasons for his failure to preserve his right to
present a defense claim. Because petitioner has not demonstrated any cause for
his procedural default, it is unnecessary for this Court to reach the prejudice
issue. Smith v. Murray, 477 U.S. at 533; Harris v. Stegall, 157 F. Supp. 2d 743,
750 (E.D. Mich. 2001).
Respondent contends that petitioner’s third through fifth claims are
procedurally defaulted, because he raised them for the first time in his postconviction motion for relief from judgment and failed to show cause for failing to
raise these issues in his appeal of right, as well as prejudice, as required by
M.C.R. 6.508(D)(3).
MC.R. 6.508(D)(3) provides that a court may not grant relief to a defendant
if the motion for relief from judgment alleges grounds for relief which could have
been raised on direct appeal, absent a showing of good cause for the failure to
raise such grounds previously and actual prejudice resulting therefrom.

The

Supreme Court noted that “a procedural default does not bar consideration of a
federal claim on either direct or habeas review unless the last state court
rendering a judgment in the case ‘clearly and expressly’ states that its judgment
rests on the procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989). If the last
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state court judgment contains no reasoning, but simply affirms the conviction in a
standard order, the federal habeas court must look to the last reasoned state
court judgment rejecting the federal claim and apply a presumption that later
unexplained orders upholding the judgment or rejecting the same claim rested
upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
The Michigan Court of Appeals and the Michigan Supreme Court rejected
petitioner’s post-conviction appeal on the ground that “the defendant has failed to
meet the burden of establishing entitlement to relief under MCR 6.508(D).”
These orders, however, did not refer to subsection (D)(3) nor did they mention
the petitioner’s failure to raise these claims on his direct appeal as their rationale
for rejecting his post-conviction claims. Because the form orders in this case
citing Rule 6.508(D) are ambiguous as to whether they refer to procedural default
or a denial of post-conviction relief on the merits, the orders are unexplained. See
Guilmette v. Howes, 624 F. 3d 286, 291 (6th Cir. 2010). This Court must
“therefore look to the last reasoned state court opinion to determine the basis for
the state court’s rejection” of the petitioner’s claims. Id.
The trial judge, in denying petitioner’s post-conviction motion, initially cited
M.C.R. 6.508(D)(3) and its requirement that a criminal defendant is required to
establish good cause and actual prejudice for seeking post-conviction relief on a
claim that he or she failed to raise on direct appeal. People v. Dawson, No. 0803462-FC, * 2. The trial judge then ruled that petitioner failed to meet his burden
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of establishing good cause for failing to raise his post-conviction claims “through
the traditional appellate process.” Id., * 3. Because the trial court judge clearly
denied petitioner post-conviction relief based on the procedural grounds stated in
Mich.Ct.R. 6.508(D)(3), petitioner’s post-conviction claims are clearly procedurally
defaulted pursuant to Mich.Ct.R. 6.508(D)(3). See Ivory v. Jackson, 509 F. 3d
284, 292-93 (6th Cir. 2007); See also Howard v. Bouchard, 405 F. 3d 459, 477 (6th
Cir. 2005). The fact that the trial court may have also discussed the merits of
petitioner’s claims in addition to invoking the provisions of M.C.R. 6.508(D)(3) to
reject petitioner’s claims does not alter this analysis. See Alvarez v. Straub, 64 F.
Supp. 2d 686, 695 (E.D. Mich. 1999)(Rosen, J.). A federal court need not reach
the merits of a habeas petition where the last state court opinion clearly and
expressly rested upon procedural default as an alternative ground, even though it
also expressed views on the merits. McBee v. Abramajtys, 929 F. 2d at 267.
Petitioner’s third through fifth claims are procedurally defaulted.
Petitioner alleges ineffective assistance of appellate counsel. Petitioner,
however, has not shown that appellate counsel was ineffective.
It is well-established that a criminal defendant does not have a
constitutional right to have appellate counsel raise every non-frivolous issue on

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appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983). The United States
Supreme Court has explained:
“For judges to second-guess reasonable professional judgments and
impose on appointed counsel a duty to raise every ‘colorable’ claim
suggested by a client would disserve the ... goal of vigorous and
effective advocacy.... Nothing in the Constitution or our interpretation
of that document requires such a standard.”
Id. at 463 U.S. at 754.
Moreover, “[A] brief that raises every colorable issue runs the risk of
burying good arguments-those that, in the words of the great advocate John W.
Davis, ‘go for the jugular,’-in a verbal mound made up of strong and weak
contentions.” Id. at 463 U.S. at 753 (citations omitted).
The Supreme Court has subsequently noted that:
Notwithstanding Barnes, it is still possible to bring a Strickland [v.
Washington] claim based on [appellate] counsel’s failure to raise a
particular claim[on appeal], but it is difficult to demonstrate that
counsel was incompetent.”
Smith v. Robbins, 528 U.S. 259, 288 (2000).
Strategic and tactical choices regarding which issues to pursue on appeal
are “properly left to the sound professional judgment of counsel.” United States v.
Perry, 908 F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate
advocacy” is the “process of ‘winnowing out weaker arguments on appeal and
focusing on’ those more likely to prevail.” Smith v. Murray, 477 U.S. at 536
(quoting Barnes, 463 U.S. at 751-52). “Generally, only when ignored issues are

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clearly stronger than those presented will the presumption of effective assistance
of appellate counsel be overcome.” Monzo v. Edwards, 281 F. 3d 568, 579 (6th
Cir. 2002). Appellate counsel may deliver deficient performance and prejudice a
defendant by omitting a “dead-bang winner,” which is defined as an issue which
was obvious from the trial record and would have resulted in a reversal on
appeal. See Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich.
2003)(Tarnow, J.).
Petitioner failed to show that appellate counsel’s performance fell outside
the wide range of professionally competent assistance by omitting his third
through fifth claims from petitioner’s appeal of right. Petitioner’s initial appellate
counsel from the State Appellate Defender’s Office filed a forty eight page appeal
brief which raised three claims, including the first two claims that petitioner raises
in his current petition. 1 Petitioner has not shown that appellate counsel’s
strategy in presenting these three claims and not raising other claims was
deficient or unreasonable. Because the defaulted claims are not “dead bang
winners,” petitioner has failed to establish cause for his procedural default of
failing to raise these claims on direct review. See McMeans v. Brigano, 228 F. 3d
674, 682-83 (6th Cir. 2000).
Moreover, because these post-conviction claims lack merit, this Court must
reject any independent ineffective assistance of appellate counsel claim raised by
1

See Defendant-Appellant’s Brief on Appeal, Dkt. # 6-31.

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petitioner. “[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)).
The Court is also aware that petitioner attempted to raise a portion of his
fifth claim in a pro per supplemental brief on appeal but the Michigan Court of
Appeals refused to accept the brief because petitioner retained appellate counsel
after his court appointed appellate counsel had filed his brief on appeal and the
Michigan court rules do not permit a criminal defendant to file a pro per
supplemental brief on appeal when he or she is represented by retained counsel.2
A criminal defendant has no federal constitutional right to selfrepresentation on direct appeal from a criminal conviction. Martinez v. Court of
Appeal of California, 528 U.S. 152, 163 (2000). This is because the rights
protected by the Sixth Amendment, including the right to self-representation, are
rights that are available to prepare for trial and at the trial itself. However, the
Sixth Amendment does not include any right to appeal. Id. at 160. There is no
constitutional entitlement to submit a pro se appellate brief on direct appeal from
a criminal conviction in addition to a brief submitted by appellate counsel. See
McMeans v. Brigano, 228 F. 3d at 684. Thus, any refusal by the Michigan Court
of Appeals to accept such a pro se brief for filing would not constitute cause to

2

See Letter to Mr. Matthew S. Kolodziejski from the Michigan Court of Appeals, dated January
25, 2010. [Part of this Court’s Dkt. # 6-32].

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excuse petitioner’s default in this case nor would it state a claim upon which
habeas relief can be granted. Id.
Petitioner failed to establish cause for failing to raise his third through fifth
claims on his direct appeal. This Court need not address the issue of prejudice
when a petitioner fails to establish cause to excuse a procedural default. See
Smith v. Murray, 477 U.S. at 533; Harris v. Stegall, 157 F. Supp. 2d at 750.
Additionally, petitioner has not established that a fundamental miscarriage
of justice has occurred. The miscarriage of justice exception requires a showing
that a constitutional violation probably resulted in the conviction of one who is
actually innocent. Schlup, 513 U.S. at 326-27. Petitioner’s sufficiency of evidence
claim (Claim # 3) is insufficient to invoke the actual innocence doctrine to the
procedural default rule. See Malcum v. Burt, 276 F. Supp. 2d 664, 677 (E.D.
Mich. 2003). Petitioner also challenges the credibility of several witnesses,
including Marvin Snyder, a fellow inmate at the Kent County Jail who testified at
trial that petitioner confessed to murdering his wife. Impeachment evidence does
not provide sufficient evidence of actual innocence. See Calderon v. Thompson,
523 U.S. 538, 563 (1998)(newly discovered impeachment evidence, which is “a
step removed from evidence pertaining to the crime itself,” “provides no basis for
finding” actual innocence); Sawyer v. Whitley, 505 U.S. 333, 349 (1992) (newly
discovered impeachment evidence “will seldom, if ever,” establish actual
innocence); See also Harris v. Stegall, 157 F. Supp. 2d at 750-51 (state trial
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court’s allegedly erroneous exclusion of victim’s statements to police was
insufficient to justify invoking fundamental miscarriage of justice exception to
procedural default rule on federal habeas review when statements were merely
impeaching and did not provide basis for any claim of actual innocence).
Because petitioner has not presented any new reliable evidence that he is
innocent of this crime, a miscarriage of justice will not occur if the Court declined
to review petitioner’s procedurally defaulted claims on the merits. Harris v.
Stegall, 157 F. Supp. 2d at 751.
Finally, assuming that petitioner had established cause for his default, he
would be unable to satisfy the prejudice prong of the exception to the procedural
default rule, because his second through fifth claims would not entitle him to
relief. The cause and prejudice exception is conjunctive, requiring proof of both
cause and prejudice. See Matthews v. Ishee, 486 F. 3d 883, 891 (6th Cir. 2007).
For the reasons stated by the Michigan Court of Appeals in rejecting petitioner’s
second claim on direct appeal, by the Kent County Circuit Court judge in rejecting
petitioner’s third through fifth claims when he denied petitioner’s post-conviction
motion, and by the Assistant Michigan Attorney General in her answer to the
petition for writ of habeas corpus, petitioner has failed to show that his
procedurally defaulted claims have any merit. In particular, the reasons justifying
the denial of petitioner’s procedurally defaulted claims were “ably articulated by
the” Michigan Court of Appeals in rejecting petitioner’s second claim on direct
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review and by the Kent County Circuit Court in rejecting petitioner’s third through
fifth claims on post-conviction review, therefore, “the issuance of a full written
opinion” by this Court regarding these claims “would be duplicative and serve no
useful, jurisprudential purpose.” See e.g. Bason v. Yukins, 328 Fed. Appx. 323,
324 (6th Cir. 2009). Petitioner is not entitled to habeas relief on his procedurally
defaulted claims.
IV. Conclusion
The Court will deny the petition for writ of habeas corpus. 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). When a district court
rejects a habeas petitioner’s constitutional claims on the merits, the petitioner
must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims to be debatable or wrong. Id. at 484.
Likewise, when a district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claims, a certificate of
appealability should issue, and an appeal of the district court’s order may be
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taken, if the petitioner shows that jurists of reason would find it debatable whether
the petitioner states a valid claim of the denial of a constitutional right, and that
jurists of reason would find it debatable whether the district court was correct in
its procedural ruling. Id. at 484. “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.
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. Myers v. Straub, 159 F. Supp. 2d 621,
629 (E.D. Mich. 2001)(Steeh,J.). The Court will also deny petitioner leave to
appeal in forma pauperis, because the appeal would be frivolous. Id.
V. ORDER
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of
Habeas Corpus is DISMISSED WITH PREJUDICE.
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.
Dated: June 23, 2015
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 23, 2015, by electronic and/or ordinary mail and also on
Timothy Dawson #710532, Lakeland Correctional Facility,
141 First Street, Coldwater, MI 49036.
s/Barbara Radke
Deputy Clerk

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