Boswell v. Gidley

Filing 17

OPINION and ORDER Denying the Amended 7 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis . Signed by District Judge Gershwin A. Drain. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TYRONE BOSWELL,
Petitioner,

Case No. 14-cv-12705
JUDGE GERSHWIN A. DRAIN

v.

LORI GIDLEY AND DUNCAN MCLAREN,
Respondents.
_____________________________________/
OPINION AND ORDER
DENYING THE AMENDED HABEAS CORPUS PETITION,
DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
This matter has come before the Court on Petitioner Tyrone Boswell’s
Amended Petition for the Writ of Habeas Corpus under 28 U.S.C. § 2254.
Petitioner challenges his Wayne County, Michigan conviction for first-degree,
felony murder, MICH. COMP. LAWS § 750.316(1)(b). In his Amended Petition,
Petitioner alleges as grounds for relief that the prosecution’s proofs were
insufficient and against the great weight of the evidence, his trial and appellate
attorneys were ineffective, the officer in charge of the case committed perjury, and
the trial judge was biased. The State urges the Court to deny the Amended Petition
because some of Petitioner’s claims are procedurally defaulted, one of the claims is

not cognizable on habeas review, and the state appellate court’s rejection of
Petitioner’s claims was reasonable. The Court agrees that Petitioner’s claims do
not warrant relief. Accordingly, the Amended Petition will be denied.
I. BACKGROUND
Petitioner waived his right to a jury trial and was tried before a judge in
Wayne County Circuit Court. The state appellate court accurately summarized the
evidence at trial as follows:
[T]his case involves the murder of, and larceny from, Michael Yost,
who lived on Muirland in Detroit with his girlfriend, Kimberly
Burrell. On the night of June 13, 2009, Yost, carrying at least $200
cash in his wallet and wearing an $800 silver watch encrusted with
diamonds, left the home he shared with Burrell to walk to a Marathon
gas station near his home. On the way to the gas station, Yost came
into contact with defendant and a man who defendant referred to as
Dirt, but who police learned went by the name “Mudd.” Defendant
and Dirt were the last two people seen with Yost before he was shot in
the back of the head and his wallet and watch were stolen.
People v. Boswell, No. 307342, 2013 WL 3814345, at *1 (Mich. Ct. App. July 23,
2013) (unpublished). Eyewitnesses Shanise Tipton and Deante Simmons were
able to identify the suspects by their clothing.
The prosecution’s theory was that, at a minimum, Petitioner aided and
abetted his accomplice in killing Yost during the commission of a larceny.
Petitioner did not testify or present any witnesses. His defense was that he was
merely present at the crime scene and that, at most, he was guilty of a larceny.

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The trial court, as the trier of fact, found Tipton and Simmons to be credible
because they were unbiased and had no motive for lying. The court noted that
Tipton never equivocated about what she saw and that Petitioner corroborated
Tipton’s and Simmons’ testimony when he admitted to a police officer that he was
present at the crime scene when the shooting occurred. The trial court concluded
that Petitioner worked in tandem with “Dirt” and was guilty, as charged, of felony
murder. See 10/14/11 Trial Tr., at 3-44, Dkt. No. 13-6, pp. 3-44 (Pg. ID 628-669).
The trial court sentenced Petitioner to mandatory life imprisonment without the
possibility of parole. See 11/4/11 Sentence Tr., at 12, Dkt. No. 13-7, p. 12 (Pg. ID
682).
In an appeal of right, Petitioner argued through his first appellate attorney
that the prosecution failed to introduce legally sufficient evidence to support his
conviction beyond a reasonable doubt.

Petitioner filed a supplemental brief

through substitute appellate counsel, arguing that there was insufficient evidence of
his guilt, the verdict was against the great weight of the evidence, and he was
denied the effective assistance of trial counsel by counsel’s failure to adequately
consult with him, visit the crime scene, and interview res gestae witnesses. After
substitute counsel was permitted to withdraw from the case, a third attorney was
appointed to represent Petitioner on appeal, and that attorney filed a supplemental
brief which alleged that trial counsel was ineffective for failing to call certain
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witnesses.

The Michigan Court of Appeals rejected Petitioner’s claims and

affirmed his conviction in an unpublished opinion.

See Boswell, 2013 WL

3814345. Although Petitioner claims that he submitted an application for leave to
appeal in the Michigan Supreme Court, the state supreme court has no record of
the application. See Larry Royster’s Affidavit, Dkt. No. 13-9, p. 1 (Pg. ID 921).
In 2014, Petitioner commenced this case. See Pet. for Writ of Habeas
Corpus, Dkt. No. 1. The petition raised two grounds for relief: insufficient
evidence of guilt and ineffective assistance of trial counsel (failure to call certain
witnesses). See id., at 6, 8, Dkt. No. 1, pp. 6, 8 (Pg. ID 6, 8).
Petitioner simultaneously moved to hold his habeas petition in abeyance
while he pursued state remedies for three new claims. See Mot., at 1-4, Dkt. No. 2,
pp. 1-4 (Pg. ID 148-151). On August 13, 2014, the Court granted Petitioner’s
motion and closed this case for administrative purposes. See Order, at 1-4, Dkt.
No. 4, pp. 1-4 (Pg. ID 153-156).
Meanwhile, on July 8, 2014, Petitioner filed a motion for relief from
judgment in the state trial court. He argued that the prosecution elicited fabricated
testimony from the officer in charge of the case, that the trial judge was biased, and
that appellate counsel was ineffective for failing to raise his two new claims on
direct appeal. See Mot. for Relief from J., Dkt. No. 13-11, pp. 1-4 (Pg. ID 933936).

On August 20, 2014, the trial court denied Petitioner’s motion under
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Michigan Court Rule 6.508(D)(3) because Petitioner had not shown “good cause”
for failing to raise his perjury and judicial-bias claims on appeal and actual
prejudice from the alleged irregularities. The trial court also found no merit in
Petitioner’s claims, including his claim about appellate counsel. See People v.
Boswell, No. 11-005601-FC (Wayne Cty. Cir. Ct. Aug. 29, 2014), Dkt. No. 13-12,
pp. 1-4 (Pg. ID 978-981).
Petitioner appealed the trial court’s decision, but the Michigan Court of
Appeals denied leave to appeal for failure to establish entitlement to relief under
Rule. 6.508(D). The Court of Appeals stated that Petitioner had alleged grounds
for relief which could have been raised previously and that Petitioner had failed to
establish both “good cause” for failing to previously raise the issues and actual
prejudice from the alleged irregularities.

The Court of Appeals rejected

Petitioner’s claim about appellate counsel for lack of merit. See People v. Boswell,
No. 325648 (Mich. Ct. App. Apr. 9, 2015), Dkt. No. 13-13, p. 1 (Pg. ID 983).
Petitioner raised the same issues in the Michigan Supreme Court. He also
incorporated by reference his supplemental brief from his direct appeal where he
argued that there was insufficient evidence of guilt at trial, that the verdict was
against the great weight of the evidence, and that he was denied the effective
assistance of counsel. On March 29, 2016, the Michigan Supreme Court denied

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leave to appeal because Petitioner had failed to establish entitlement to relief under
Rule 6.508(D). See People v. Boswell, 499 Mich. 881; 876 N.W.2d 535 (2016).
On June 6, 2016, Petitioner filed a motion to amend his habeas petition and
to re-open this case. See Mot., at 1-6, Dkt. No. 6, pp. 1-6 (Pg. ID 159-164). The
grounds for relief in the amended petition allege that: (1) there was insufficient
evidence at trial to sustain Petitioner’s conviction; (2) trial counsel failed to
subpoena exculpatory res gestae witnesses; (3) the trial court’s verdict was against
the great weight of the evidence; (4) trial counsel was ineffective for failing to: (a)
consult adequately with Petitioner, (b) visit the crime scene, and (c) interview
certain res gestae witnesses; (5) the conviction was based on the perjured
testimony of police officer Scott Shea; (6) the trial judge was biased; and (7)
appellate counsel was ineffective for failing to present claims five and six in the
appeal of right. See Memorandum of Law Supporting First Am. Pet., at 4-13, Dkt.
No. 7, pp. 4-13 (Pg. ID 224-233).
The Court granted Petitioner’s Motion to Amend his Habeas Petition and to
re-open this case. See Op. and Order, at 1-5, Dkt. No. 10, pp. 1-5 (Pg. ID 241245.)

In the same order, the Court directed the State to file an Answer to the

Amended Petition and granted Petitioner permission to file a Reply to the State’s
Answer. Id., at 4, Dkt. No. 10, p. 4 (Pg. ID 244). The State subsequently filed an
Answer to the Amended Petition, see Answer in Opp’n to Am. Pet., Dkt. No. 12,
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and although the Court extended the deadline for filing a Reply to the State’s
Answer, see Order, Dkt. No. 15, Petitioner has not filed a Reply.
The State maintains that Petitioner’s first four claims are procedurally
defaulted because Petitioner did not raise those claims in the Michigan Supreme
Court on direct review.

Petitioner, however, has submitted documentation

showing that he placed his supreme court application in the prison’s outgoing mail
on September 13, 2013. See Pet. for Writ of Habeas Corpus, Ex. A, Dkt. No. 1
(Pg. ID 19). For some unknown reason, the application apparently never reached
the state supreme court, and the Michigan Supreme Court informed Petitioner on
May 1, 2014, that it did not receive any papers from him in 2013. See id., Ex. C
(Pg. ID 23). Petitioner does not appear to be at fault for failing to raise his first
four claims in the Michigan Supreme Court on direct review. The Court, therefore,
excuses the alleged procedural default related to Petitioner’s first four claims and
proceeds to address those claims, using the following standard of review.
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
requires habeas petitioners who challenge “a matter ‘adjudicated on the merits in
State court’ to show that the relevant state court ‘decision’ (1) ‘was contrary to, or
involved an unreasonable application of, clearly established Federal law,’ or (2)
‘was based on an unreasonable determination of the facts in light of the evidence
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presented in the State court proceedings.’” Wilson v. Sellers, 138 S. Ct. 1188,
1192 (2018) (quoting 28 U.S.C. § 2254(d)). “[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. Rather, that application must also be unreasonable.” Williams v.
Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential
standard for evaluating state-court rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n.
7 (1997), and ‘demands that state-court decisions be given the benefit of the
doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v.
Lett, 559 U.S. 766, 773 (2010).
“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)). To obtain a writ of habeas
corpus from a federal court, a state prisoner must show that the state court’s ruling
on his or her 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.

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III. ANALYSIS
A. Claim One: Insufficient Evidence
Petitioner alleges first that the prosecution deprived him of due process and
a fair trial by producing insufficient evidence of felony murder.
1. Clearly Established Federal Law
The Due Process Clause of the United States Constitution “protects the
accused against conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” In re Winship,
397 U.S. 358, 364 (1970). Following Winship, the critical inquiry on review of a
challenge to the sufficiency of the evidence supporting a criminal conviction is
whether the record evidence could reasonably support a finding
of guilt beyond a reasonable doubt. But this inquiry does not
require a court to “ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt.” Instead, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. This familiar standard
gives full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote
omitted) (emphases in original).

“Circumstantial evidence may support a

conviction, McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003), and such
evidence need not remove every reasonable hypothesis except that of guilt. Walker
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v. Russell, 57 F.3d 472, 475 (6th Cir. 1995).” Apanovitch v. Houk, 466 F.3d 460,
488 (6th Cir. 2006).
Moreover, under AEDPA, the Court’s “review of a state-court conviction for
sufficiency of the evidence is very limited.” Thomas v. Stephenson, 898 F.3d 693,
698 (6th Cir. 2018). The Supreme Court has “made clear that Jackson claims face
a high bar in federal habeas proceedings because they are subject to two layers of
judicial deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam).
First, it is the responsibility of the trier of fact to decide what conclusions
should be drawn from the evidence admitted at trial. Id. “And second, on habeas
review, ‘a federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal court disagrees
with the state court. The federal court instead may do so only if the state court
decision was ‘objectively unreasonable.’” Id.
“[T]his standard is difficult to meet,” no doubt, but “that is because it
was meant to be.” Harrington v. Richter, 562 U.S. 86, 102, 131 S. Ct.
770, 178 L.Ed.2d 624 (2011). “[H]abeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.” Id. at 102-03,
131 S. Ct. 770 (internal quotation marks and citation omitted).
Thomas, 898 F.3d at 698.

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2. Felony Murder
The Jackson “standard must be applied with explicit reference to the
substantive elements of the criminal offense as defined by state law,” Jackson, 443
U.S. at 324 n.16, and, in Michigan,
[t]he elements of first-degree felony murder are: “ ‘(1) the killing of a
human being, (2) with the intent to kill, to do great bodily harm, or to
create a very high risk of death or great bodily harm with knowledge
that death or great bodily harm was the probable result [i.e., malice],
(3) while committing, attempting to commit, or assisting in the
commission of any of the felonies specifically enumerated in [MCL
750.316(1)(b), here larceny].’ ” People v. Carines, 460 Mich. 750,
758–759, 597 N.W.2d 130 (1999) (citation omitted).
People v. Smith, 478 Mich. 292, 318–19; 733 N.W.2d 351, 365 (2007).
To prove felony murder on an aiding and abetting theory, the
prosecution must show that the defendant (1) performed acts or gave
encouragement that assisted the commission of the killing of a human
being, (2) with the intent to kill, to do great bodily harm, or to create a
high risk of death or great bodily harm with knowledge that death or
great bodily harm was the probable result, (3) while committing,
attempting to commit, or assisting in the commission of the predicate
felony. People v. Carines, 460 Mich. 750, 755, 597 N.W.2d 130
(1999).
People v. Riley, 468 Mich. 135, 140; 659 N.W.2d 611, 614 (2003). Malice may be
inferred from the use of a deadly weapon, Carines,460 Mich. at 759; 597 N.W.2d
at 136, and from participation in the underlying offense, People v. Bulls, 262 Mich.
App. 618, 625; 687 N.W.2d 159, 164 (2004).

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3. Application of the Law to the Facts
The parties stipulated that Yost was killed by a gunshot wound to the head.
The relevant questions are whether Petitioner shot Yost or aided and abetted “Dirt”
in shooting Yost, whether the shooting occurred during the commission of an
enumerated felony, and whether Petitioner possessed the requisite intent.
The trial court concluded that sufficient evidence existed to prove that
Petitioner either shot Yost or aided and abetted “Dirt” in killing Yost, because the
two men were working in tandem. The Michigan Court of Appeals agreed, stating
that
it does not matter if defendant fired the gun because sufficient
evidence existed showing that he, at a minimum, aided Dirt in the
killing of Yost. Second, at the time that Yost was shot in the head,
both defendant and Dirt were standing in close proximity to Yost. In
fact, by his own admission, defendant placed himself and Dirt at the
scene of Yost’s murder, explaining that he, Dirt, and Yost were
walking down Muirland when defendant heard a “loud boom” and he
saw Yost’s white hat fall to the ground. Defendant contends that it is
unclear who shot Yost; in fact, defendant argues that Yost was
probably shot by a gunman who was hiding some distance from the
men. However, defendant told Detroit Police that he saw Dirt holding
a gun after he heard the loud boom and witnessed Yost fall to the
ground.
Further evidence also linked defendant to Yost’s murder. Shanise
Tipton and Deante Simmons both witnessed Yost’s murder. Tipton
witnessed a group of three men who matched the descriptions of Yost,
Dirt, and defendant. Tipton saw them walking and then they stopped
and started talking. At some point, Tipton heard a gunshot come from
the direction of the three men. Tipton testified that she did not see
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anything that would lead her to believe either man had a gun. After
the gun was fired, Tipton witnessed Yost fall to the ground, while men
matching the descriptions of Dirt and defendant stayed standing near
the body. Next, Tipton witnessed the man who fit Dirt’s description
walk toward the alley and stop while the man who matched
defendant’s description went through Yost’s pocket and removed a
large item.
Simmons also witnessed the incident. According to Simmons, after
the shooting, one of the men served as a “look-out” while the other
man rifled through Yost’s pockets. All of this evidence places
defendant at the scene of the murder at the precise time of the murder.
Because defendant searched through Yost’s pocket after Yost was
shot, it was reasonable for the judge to infer that one of the men,
either defendant or Dirt, committed the killing. Even if defendant did
not commit the killing, there is evidence that defendant performed
acts or gave encouragement that assisted Dirt in the commission of the
killing. In fact, if defendant truly had nothing to do with Yost’s
murder, it is unlikely that an eyewitness would see a man who
matched defendant’s description pull something out of Yost’s pocket
while Yost was lying on the ground with a gunshot wound to the head.
Additionally, the position of the man who matched the description of
Dirt serving as a look-out while defendant looked through Yost’s
pockets serves as evidence that the two men were acting together
when Yost was killed.
Boswell, 2013 WL 3814345, at *2 -*3.
A rational trier of fact could have concluded from this evidence, as the
Michigan Court of Appeals did, that Petitioner killed Yost or aided and abetted
“Dirt” in killing Yost. Id. at *3. A rational trier of fact also could have concluded
from the use of a gun during the incident that Petitioner intended to kill Yost,
intended to cause great bodily harm, or wantonly and willfully disregarded the
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likelihood that the natural tendency of his behavior was to cause death or great
bodily harm. Even if he did not actually handle the gun, “he nevertheless ‘used’
the weapon, with [his accomplice’s] help, to perpetrate the crime and such ‘use’
also supports an inference of malice.” Bulls, 262 Mich. App. at 627; 687 N.W.2d
at 165.
Furthermore, larceny is one of the felonies enumerated in the felony murder
statute, MICH. COMP. LAWS § 750.316(1)(b), and there was sufficient evidence that
Petitioner committed a larceny or assisted Dirt in committing the larceny during
the killing. As explained by the Michigan Court of Appeals,
Burrell testified that Yost should have had roughly $250 in cash in his
wallet and that Yost was wearing a diamond encrusted watch.
Defendant told police that both items were taken from Yost by Dirt. . .
. Additionally, neither the wallet nor the watch was ever recovered.
Viewing these facts in the light most favorable to the prosecution,
defendant removed something that belonged to Yost from Yost’s
person and took it without Yost’s permission because Yost was dead.
Additionally, sufficient evidence supports a finding that the property
was moved; in fact, Tipton witnessed the man who matched
defendant’s description move further down the alley and catch up with
the man who matched Dirt’s description. . . . Next, sufficient
evidence supported a finding that defendant took the property with the
intent to permanently deprive Yost of his belongings. In fact, he
killed Yost to get the property. . . . Finally, sufficient evidence
supported a finding that defendant took the property from Yost’s
immediate area of control or immediate presence. In fact, Tipton
witnessed him remove it from Yost’s front right pocket. . . .

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Id. at *3 -*4. As for whether Petitioner had the intent to commit a larceny during
the homicide, the Court of Appeals noted that,
[a]ccording to defendant, himself, he walked to the Marathon gas
station to “get some blunts.” Defendant said that he was accompanied
by Dirt. Defendant said that on his way to the gas station, he and Dirt
“came across” Yost. The video surveillance footage from the
Marathon gas station shows that the first man to walk into the gas
station was Yost. Then, eventually, both Dirt and defendant entered
the Marathon station, and the two, standing only five to five and a half
feet away from Yost, appeared to have a conversation. This
conversation appears to have taken place for at least 15 seconds. At
one point, both Dirt and defendant exited the Marathon station. This
left Yost in the station by himself. However, defendant and Dirt
returned and, eventually, all three men, including Yost, left the
Marathon station. Viewing the evidence in the light most favorable to
the prosecution, this evidence shows that (1) defendant and Dirt had
an opportunity to see Yost’s watch and possibly his wallet and (2)
defendant and Dirt had time to formulate a plan to kill Yost to get his
watch and whatever else he may have carried on his person. In fact,
after Yost was shot, instead of trying to get Yost medical help, calling
the police, or getting assistance from someone in the neighborhood,
both Dirt and defendant stayed near the body; Dirt served as a lookout, and defendant went through Yost’s pocket. The relationship in
time between the murder and the larceny, when viewed in the light
most favorable to the prosecution, provides sufficient evidence that
defendant had the intent to commit larceny before or at the time he
killed or assisted in the killing of Yost.
Id. at *4.
A rational trier of fact could have concluded from all the evidence
summarized above, that Petitioner aided and abetted “Dirt” in killing Yost during
the commission of a larceny and that Petitioner possessed malice at the time.

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Thus, the prosecution proved the essential elements of first-degree felony murder
beyond a reasonable doubt. In addition, the state appellate court’s conclusion –
that the essential elements for felony murder were proved – was objectively
reasonable. Petitioner, therefore, has no right to relief on his challenge to the
sufficiency of the evidence.
B. Claims Two and Four: Ineffective Assistance of Trial Counsel
The second and fourth claims allege that Petitioner was deprived of the
effective assistance of counsel guaranteed him under the Sixth Amendment to the
United States Constitution. Specifically, Petitioner alleges in claim two that trial
counsel failed to subpoena Dorian Clarice Wallace and Debra Hardwick, who
would have supported his defense of actual innocence. In claim four, Petitioner
alleges that trial counsel failed to consult adequately with him, failed to visit the
crime scene to determine whether the witnesses gave an accurate description of the
incident, and failed to interview res gestae witnesses to determine whether
someone named Charles Taylor murdered Yost.
To prevail on his ineffectiveness claim, Petitioner must show “that counsel’s
performance was deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). The deficientperformance prong “requires showing that counsel made errors so serious that
counsel was not functioning as the counsel guaranteed the defendant by the Sixth
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Amendment.” Id. (internal quotation marks omitted). “[T]he defendant must show
that counsel’s representation fell below an objective standard of reasonableness.
Id. at 688.
The “prejudice” prong “requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Id. at 687. A defendant must demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.

A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694.
“The standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter,
562 U.S. at 105 (internal and end citations omitted). “When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable.

The question is

whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
1. Failure to Interview and Subpoena Witnesses
Petitioner alleges that trial counsel was ineffective because he failed to
interview and subpoena Dorian Clarice Wallace and Debra Hardwick to determine
whether Charles Taylor, and not Petitioner, murdered Yost.

17 

Defense attorneys have “a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary.”
Strickland, 466 U.S. at 691. “This duty includes the obligation to investigate all
witnesses who may have information concerning his or her client’s guilt or
innocence.” Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). Under Strickland,
however, the Court “must presume that decisions of what evidence to present and
whether to call or question witnesses are matters of trial strategy.” Cathron v.
Jones, 77 F. App’x 835, 841 (6th Cir. 2003) (citing Hutchison v. Bell, 303 F.3d
720, 749 (6th Cir. 2002)). “[C]ounsel may exercise his professional judgment with
respect to the viability of certain defenses and evidentiary matters without running
afoul of the Sixth Amendment.” Lewis v. Alexander, 11 F.3d 1349, 1353–54 (6th
Cir. 1993).

Further, in the absence of any evidence showing that uncalled

witnesses would have offered specific favorable testimony, a petitioner cannot
establish Strickland prejudice from counsel’s failure to produce the witnesses.
Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005).
Wallace informed a police officer on August 15, 2009, that Charles Taylor
admitted to killing Yost in retaliation for Yost killing Taylor’s brother.

See

Amended Pet. for Writ of Habeas Corpus, Dkt. No. 7, pp. 52-53 (Pg. ID 218-219).
However, on January 7, 2011, which was nine months before Petitioner’s trial,
Wallace gave a second witness statement in which she said that, after she gave her
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statement in August 2009, Taylor told her that he had nothing to do with the
murder, and she believed him. See id., p. 50 (Pg.ID 216). In light of Wallace’s
2011 statement, trial counsel was not ineffective for failing to interview and
subpoena Wallace. As the state appellate court pointed out,
even if defense counsel had investigated the lead or called this
witness, either the witness would have testified consistent with her
more recent statement, which would not help defendant’s case, or she
would have testified consistent with the first statement and been
impeached by the subsequent statement. Thus, defense counsel’s
alleged failure to investigate or call the witness appears to be a clear
exercise of trial strategy.
Boswell, 2013 WL 3814345, at *6.
The Court of Appeals also concluded that Petitioner could not prove any
prejudice from counsel’s failure to investigate and call Wallace, because
[o]verwhelming evidence, including defendant’s own statements to
[Office Scott] Shea and phone calls defendant made shortly after the
murder of Yost, place defendant directly beside Yost when he was
murdered. Furthermore, defendant told Shea that he saw Dirt holding
a gun after Yost was shot. It is entirely possible that defense counsel
strategically did not investigate this issue or raise it at trial because it
would have further called into question defendant’s credibility.
Id.
As for Hardwick, she merely informed a police officer on the day after the
shooting that she heard a gunshot and then saw a man lying in the street. She also

19 

saw two other men, but it was dark outside, and she could not identify the men.
See Pet. for Writ of Habeas Corpus, Ex. B, p. 25 (Pg. ID 125).
Hardwick’s statement to the police was similar to the testimony of
prosecution witnesses Tipton and Simmons, who also saw two men near the
victim, but could not identify the men by their faces. See, e.g., 10/13/11 Trial Tr.,
at 10-11, 17-19, Dkt. No. 13-5, pp. 10-11, 17-19 (Pg. ID 563-64, 570-572)
(Tipton’s testimony); id. at 45, Dkt. No. 13-5, p. 45 (Pg. ID 598) (Simmons’
testimony). Therefore, Hardwick would not have benefitted the defense, and
Petitioner was not prejudiced by defense counsel’s failure to interview and produce
Hardwick as a defense witness.
2. Failure to Consult
Petitioner alleges next that trial counsel failed to consult adequately with
him.

Petitioner alleged in his state appellate brief that counsel visited him only

two times before trial and that the purpose of one of the visits was to ask for
money. The Michigan Court of Appeals rejected this claim because there was no
evidence in the record to support Petitioner’s contention and, therefore, counsel
presumably acted effectively.
The Supreme Court has said that defense attorneys have “a duty to discuss
potential strategies with the defendant,” and “to consult with the client regarding
‘important decisions,’ including questions of overarching defense strategy.”
20 

Florida v. Nixon, 543 U.S. 175, 178, 187 (2004); see also Jemison v. Foltz, 672 F.
Supp. 1002, 1007 (E.D. Mich. 1987) (“Defense counsel had a duty to consult with
defendant on important decisions, and to bring to bear on the case such skill and
knowledge as to make the trial a reliable adversary proceeding.”). But “[n]ot every
restriction on counsel’s time or opportunity to investigate or to consult with his
client or otherwise to prepare for trial violates a defendant’s Sixth Amendment
right to counsel.” Morris v. Slappy, 461 U.S. 1, 11 (1983). “[A] court must
indulge a ‘strong presumption’ that counsel’s conduct falls within the wide range
of reasonable professional assistance because it is all too easy to conclude that a
particular act or omission of counsel was unreasonable in the harsh light of
hindsight.” Bell v. Cone, 535 U.S. 685, 702 (2002) (citing Strickland, 466 U.S. at
689).
The facts in this case were not complicated, and the number of times that
defense counsel visited Petitioner is not necessarily indicative of deficient
performance. As stated in Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980),
the brevity of time spent in consultation, without more, does not
establish that counsel was ineffective. Therefore, it is not enough to
merely show that counsel only met with [the petitioner] twice before
trial as long as counsel devoted sufficient time to insure an adequate
defense and to become thoroughly familiar with the facts of the case
and the law applicable to the case.
Id. at 759 (internal citations omitted).
21 

The record in this case indicates that defense counsel was prepared for trial,
and Petitioner has not alleged what impact his limited visits with defense counsel
had on his trial. Thus, Petitioner has failed to show that his attorney’s limited
consultations with him amounted to the ineffective assistance of counsel.
3. Failure to Visit the Crime Scene
Petitioner alleges that his attorney should have visited the crime scene to
determine whether the witnesses gave an accurate description of the incident.
According to Petitioner, Tipton and Simmons were 150 feet away from where the
crime occurred, not 50 feet away, as they claimed at trial. Petitioner alleges that
his attorney would have discovered this fact if he had visited the crime scene and
that the information could have been used to attack the witnesses’ credibility and
ability to see accurately.
The Michigan Court of Appeals rejected Petitioner’s claim because he relied
on a map or sketch that was not drawn to scale and that provided no measurements
to determine how far apart the objects were. The Court of Appeals also stated that
there were no facts in the record to support the contention that defense counsel
never visited the murder scene or that Tipton and Simmons stood more than 50 feet
away from the scene of the crime.
As noted above, defense attorneys have “a duty to make reasonable
investigations or to make a reasonable decision that makes particular investigations
22 

unnecessary.” Strickland, 466 U.S. at 691. But “[i]n any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Id. “[R]easonably diligent counsel may draw a line when they have
good reason to think further investigation would be a waste.” Rompilla v. Beard,
545 U.S. 374, 383 (2005).
Tipton testified that the three men she observed were standing under a
streetlight and that she got a good look at them. 10/13/11 Trial Tr., at 9, 18-19,
Dkt. No. 13-5, pp. 9, 18-19 (Pg. ID 562, 571-72). She also testified that she was
looking at the men the entire time. Id. at 21, 29-30, Dkt. No. 13-5, pp. 21, 29-30
(Pg. ID 574, 582-583).
Simmons testified that he was less than fifty feet away from the men when
he made his observations and that the men were standing by a streetlight. Id., at
46, 39, Dkt. No. 13-5, pp. 46, 39 (Pg. ID 599, 592). When defense counsel asked
Simmons about the basis for his conclusion that one man was acting as a lookout,
Simmons said, “I was right there.” Id., at 43, Dkt. No. 13-5, p. 43 (Pg. ID 596).
Finally, police officer David Haines testified that the area near the victim’s body
was illuminated by a working public utility light. 10/12/11 Trial Tr., at 67, Dkt.
No. 13-4, p. 67 (Pg.ID 487).

23 

Given the eyewitnesses’ testimony about the lighting at the crime scene and
their ability to see, the result of the trial in all likelihood would not have been
different if defense counsel had visited the crime scene and tried to impeach the
eyewitnesses with their ability to observe the crime. Thus, defense counsel’s
alleged failure to visit the crime scene did not prejudice Petitioner.
To conclude, Petitioner has failed to show that his trial attorney’s
performance was deficient and that the deficient performance prejudiced his
defense.

Additionally, the state appellate court’s rejection of Petitioner’s

ineffectiveness claims was not contrary to, or an unreasonable application of,
Strickland. Petitioner has no right to relief on his second and fourth claims.
C. Claim Three: The Verdict Was Against the Weight of the Evidence
The third habeas claim alleges that the trial court’s ruling was against the
great weight of the evidence. Petitioner points out that there was no forensic
evidence linking him to the crime. He also contends that: he made no confession
or inculpatory statements; Wallace admitted to an officer that someone else
confessed to committing the crime; Hardwick was an eyewitness to the crime, but
she did not identify him as the murderer; Officer Shea committed perjury; and the
trial judge was impermissibly pro-prosecution.
The Michigan Court of Appeals stated on direct review that

24 

[t]he trial court’s ruling was not against the great weight of the
evidence because the evidence did not preponderate heavily against
the verdict so that it would be a miscarriage of justice to allow the
verdict to stand. [People v.] Lemmon, 456 Mich. [625, 627; 576
N.W.2d 129 (1998)]. In fact, . . . the great weight of the evidence—
from defendant’s own statements, video surveillance footage at the
Marathon gas station, eyewitness testimony, and the timing of the
larceny in relation to the murder—supported a finding that defendant
was guilty of first-degree felony murder.
Boswell, 2013 WL 3814345, at *5.
This Court finds no merit in Petitioner’s claim because a weight-of-theevidence argument is a state-law argument, Nash v. Eberlin, 258 F. App’x 761,
764 n.4 (6th Cir. 2007), and “federal habeas corpus relief does not lie for errors of
state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). “In conducting habeas
review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.
62, 68 (1991). Because Petitioner has not alleged a violation of federal law, his
claim is not cognizable on habeas review.
D. Claims Five, Six, and Seven: Perjury, Judicial Bias, and
Ineffective Assistance of Appellate Counsel
The fifth habeas claim alleges that the prosecution relied on, and failed to
correct, Officer Shea’s perjured testimony, and the sixth claim alleges that the trial
court was biased against Petitioner.

The State argues that these claims are

25 

procedurally defaulted because Petitioner did not raise the claims on direct appeal
and because the state appellate court relied on that fact to deny relief.
In the habeas context, a procedural default is “a critical failure to comply
with state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). Under the
doctrine of procedural default, “a federal court will not review the merits of [a state
prisoner’s] claims, including constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state procedural rule.” Martinez v.
Ryan, 566 U.S. 1, 9 (2012). Federal courts deem a habeas petitioner’s claim
procedurally defaulted
if each of the following four factors is met: (1) the petitioner failed to
comply with a state procedural rule; (2) the state courts enforced the
rule; (3) the state procedural rule is an adequate and independent state
ground for denying review of a federal constitutional claim; and (4)
the petitioner has not shown cause and prejudice excusing the
default.” [Jalowiec v. Bradshaw, 657 F.3d 293, 302 (6th Cir. 2011)].
To determine whether a state procedural rule was applied to bar a
habeas claim, [courts] look “to the last reasoned state court decision
disposing of the claim.” Guilmette v. Howes, 624 F.3d 286, 291 (6th
Cir. 2010) (en banc).
Henderson v. Palmer, 730 F.3d 554, 560 (6th Cir. 2013).
1. The State Rule
The state procedural rule at issue here is Michigan Court Rule 6.508(D)(3),
which reads in relevant part as follows:

26 

(D) Entitlement to Relief. The defendant has the burden of
establishing entitlement to the relief requested. The court may not
grant relief to the defendant if the motion
....
(3) alleges grounds for relief, other than jurisdictional
defects, which could have been raised on appeal from the
conviction and sentence or in a prior motion under this
subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such
grounds on appeal or in the prior motion,
and
(b) actual prejudice from the alleged
irregularities that support the claim for
relief.
Mich. Ct. R. 6.508(D)(3).
Petitioner violated the essence of Rule 6.508(D)(3) by not raising his perjury
and judicial-bias claims in the appeal of right. Instead, he raised the claims for the
first time in his motion for relief from judgment and subsequent appeals.
Therefore, the first procedural-default factor is satisfied.
2. Enforcement of the State Rule
The state trial court enforced Rule 6.508(D)(3) in its opinion denying
Petitioner’s motion for relief from judgment. The court stated that Petitioner had
not shown “good cause” under Rule 6.508(D)(3), nor proved actual prejudice. The
Michigan Court of Appeals also determined that Petitioner’s claims about Officer
27 

Shea and the trial court could have been raised previously and that Petitioner had
failed to establish both good cause for failing to raise the issues previously and
actual prejudice from the irregularities alleged.
Although the trial court also addressed Petitioner’s fifth and sixth claims on
the merits, the alternative holdings “do[] not require [the Court] to disregard the
state court’s finding of procedural bar.” Coe v. Bell, 161 F.3d 320, 330 (6th Cir.
1998). As explained in Harris v. Reed, 489 U.S. 255 (1989),
a state court need not fear reaching the merits of a federal claim in an
alternative holding. By its very definition, the adequate and
independent state ground doctrine requires the federal court to honor a
state holding that is a sufficient basis for the state court’s judgment,
even when the state court also relies on federal law. See Fox Film
Corp. v. Muller, 296 U.S. 207, 210, 56 S.Ct. 183, 184, 80 L. Ed. 158
(1935). Thus, by applying this doctrine to habeas cases, [Wainwright
v. Sykes, 433 U.S. 72 (1977)] curtails reconsideration of the federal
issue on federal habeas as long as the state court explicitly invokes a
state procedural bar rule as a separate basis for decision. In this way,
a state court may reach a federal question without sacrificing its
interests in finality, federalism, and comity.
Id. at 264 n.10 (emphasis in original).

The Court concludes that the second

procedural default factor is satisfied.
3. The Adequacy and Independent Ground for the State Rule
The third factor is satisfied if the state procedural rule in question was an
adequate and independent state ground for denying review of a federal
constitutional claim. The Sixth Circuit has said that the procedural bar set forth in
28 

Rule 6.508(D) is an adequate and independent ground on which state courts may
rely to foreclose review of federal claims. Howard v. Bouchard, 405 F.3d 459, 477
(6th Cir. 2005). Therefore, the third procedural-default factor is satisfied.
4. “Cause” for the Procedural Default
The fourth factor requires a habeas petitioner to show “cause” for his state
procedural error and resulting prejudice. Petitioner alleges in his seventh claim
that his appellate attorney inexcusably failed to present claims five and six in the
appeal of right. The state trial court, however, found no merit in Petitioner’s claim
about appellate counsel because Petitioner could not show any prejudice from
appellate counsel’s decisions.
“Ineffective assistance of counsel . . . is cause for a procedural default.”
Murray v. Carrier, 477 U.S. 478, 488 (1986). But an indigent defendant has no
constitutional right to compel appointed counsel to raise nonfrivolous claims on
appeal if counsel, as a matter of professional judgment, decides not to present those
claims. Jones v. Barnes, 463 U.S. 745, 751 (1983). In fact, as the state trial court
recognized on review of Petitioner’s claim, “the process of winnowing out weaker
arguments on appeal is the hallmark of effective appellate advocacy.” Monzo v.
Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (quotation marks and end citations
omitted).

29 

To prevail on his claim about appellate counsel, Petitioner must demonstrate
(1) that his appellate attorney acted unreasonably in failing to discover and raise
nonfrivolous issues on appeal and (2) there is a reasonable probability Petitioner
would have prevailed on appeal if his attorney had raised the issues. Smith v.
Robbins, 528 U.S. 259, 285 (2000) (citing Strickland, 466 U.S. at 687-91, 694).
When assessing the prejudice prong of this test, the Court looks to whether
appellate counsel’s actions prejudiced Petitioner, which means that the Court must
assess the strength of the claims that appellate counsel failed to raise. Carter v.
Parris, __ F.3d __, No. 17-5498, 2018 WL 6441617, at *4 (6th Cir. Dec. 10, 2018)
(citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008)). “If there is no
‘reasonable probability that inclusion of the issue would have changed the result of
the appeal,’ then habeas relief will not be granted.” Id. (quoting McFarland v.
Yukins, 356 F.3d 688, 699 (6th Cir. 2004)).
i. Perjury
Petitioner alleges that the prosecution convicted him on the basis of perjured
testimony provided by Officer Shea, who testified about his interview with
Petitioner on October 18, 2009, approximately five months after the murder of
Yost. According to Shea, Petitioner initially denied being present during the
shooting, but later admitted during the interview that he went to a gas station with
Yost and “Dirt” on the night in question. Petitioner also stated that, as the group
30 

walked down Muirland, Yost told “Dirt” not to walk behind him, and “Dirt”
responded by saying something to Yost. They continued walking down Muirland.
Petitioner then heard a gunshot and took off running. He looked back and saw
“Dirt” robbing Yost. 10/12/11 Trial Tr., at 115-17, 122, 128, Dkt. No. 13-4, pp.
115-17, 122, 124, 128 (Pg. ID 535-37, 542, 544, 548).
Petitioner has not alleged what was false about Shea’s testimony. However,
in his state post-conviction motion, Petitioner alleged that, contrary to Shea’s
testimony, he repeatedly told Shea that Yost was shot by someone who was
conversing with Yost in the alley. According to Petitioner, Shea responded by
stating that, if Petitioner wanted to go home, he had to change his statement.
Shea’s contrary testimony about the voluntariness and content of Petitioner’s
statement to him does not establish perjury. See United States v. Lochmondy, 890
F.2d 817, 822 (6th Cir. 1989) (“[M]ere inconsistencies in testimony by government
witnesses do not establish knowing use of false testimony.”). In fact, nothing that
Shea said suggested that he was lying. His testimony that Petitioner was involved
in the murder was consistent with the rest of the evidence.
Furthermore, Petitioner has not established that the prosecution knew Shea’s
testimony was false. Cf. Amos v. Renico, 683 F.3d 720, 728 (6th Cir. 2012)
(explaining that, to prevail on a claim that the prosecution presented false
testimony, a petitioner must show that the testimony was actually false and that the
31 

prosecutor knew the testimony was false). Therefore, Petitioner has failed to prove
his perjury claim, and appellate counsel was not ineffective for failing to raise the
claim on appeal.
ii. The Trial Court
Petitioner’s sixth claim alleges the trial court was pro-prosecution and biased
against him. The state trial court opined on review of this claim that its conduct
was not improper and that it did not pierce the veil of judicial impartiality. The
trial court concluded that Petitioner’s claim lacked merit.
To prevail on a claim of judicial bias, a defendant must show “there was
bias, or such a likelihood of bias or an appearance of bias that the judge was unable
to hold the balance between vindicating the interests of the court and the interests
of the accused.” Ungar v. Sarafite, 376 U.S. 575, 588 (1964). In his postconviction motion, Petitioner alleged that the trial court’s conduct resembled that
of a prosecutor, as opposed to, a detached and impartial judge. Petitioner also
alleged that the trial court made improper inferences from the evidence when the
court stated that Petitioner was working in tandem with “Dirt,” that Petitioner
looked a little nervous in the video of the incident at the gas station, and that the
victim appeared to think something was not right.
The trial court, however, was the trier of fact and entitled to draw reasonable
inferences from the evidence. Jackson, 443 U.S. at 319. Furthermore, neither the
32 

trial court’s findings of fact, nor its conclusions of law, establish that the court was
biased against Petitioner. Judicial rulings almost never constitute a valid basis for
a claim of judicial bias or partiality. Liteky v. United States, 510 U.S. 540, 555
(1994).

Additionally, “opinions formed by the judge on the basis of facts

introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Id.
The trial court’s findings of fact and conclusions of law in Petitioner’s case
do not reflect a deep-seated favoritism toward the prosecution, nor antagonism
toward Petitioner. Therefore, appellate counsel was not ineffective for failing to
raise Petitioner’s judicial-bias claim on direct appeal.
The Court concludes that Petitioner’s underlying claims about Officer
Shea’s testimony and the trial court’s alleged bias lack merit, and there is no
reasonable probability that inclusion of the issues would have changed the result of
the appeal.

Accordingly, appellate counsel satisfied Strickland’s deferential

standard, and Petitioner’s independent claim about appellate counsel lacks merit.
“[B]y definition, appellate counsel cannot be ineffective for a failure to raise an
issue that lacks merit.” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001).
Furthermore, because appellate counsel was not constitutionally ineffective,
33 

Petitioner has failed to show “cause” for his procedural default of not raising his
fifth and sixth claims in the appeal of right.
5. Prejudice; Miscarriage of Justice
The Court need not determine whether the alleged constitutional errors
prejudiced Petitioner, because he has failed to show cause for his failure to comply
with state law. Smith v. Murray, 477 U.S. 527, 533 (1986); Simpson v. Jones, 238
F.3d 399, 409 (6th Cir. 2000). In the absence of “cause and prejudice,” a habeas
petitioner may pursue a procedurally defaulted claim only if he can demonstrate
that failure to consider his claim will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). “A fundamental miscarriage of
justice results from the conviction of one who is ‘actually innocent.’ ” Lundgren v.
Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (citing Carrier, 477 U.S. at 496.) “To
be credible, [a claim of actual innocence] requires [the] petitioner to support his
allegations of constitutional error with new reliable evidence – whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence – that was not presented at trial.” Schlup v. Delo, 513 U.S. 298,
324 (1995).
Wallace and Hardwick’s statements to the police were not introduced at
Petitioner’s trial, but their statements fail to establish that Petitioner is actually
innocent. Therefore, a miscarriage of justice will not occur as a result of any
34 

failure to address the substantive merits of Petitioner’s claims about Officer Shea
and the trial court. Those claims are procedurally defaulted, and the related claim
about appellate counsel does not entitle Petitioner to relief because the underlying
claims about Office Shea and the trial court are meritless.
IV. CONCLUSION AND ORDER
Petitioner’s fifth and sixth claims are procedurally defaulted, his seventh
claim lacks substantive merit, and his third claim is not cognizable on habeas
review. Additionally, the state appellate court’s rejection of Petitioner’s first,
second, and fourth claims was not contrary to Supreme Court precedent, an
unreasonable application of Supreme Court precedent, or an unreasonable
application of the facts. The state-court decisions also were not so lacking in
justification that there was an error beyond any possibility for fairminded
disagreement.
Accordingly, IT IS ORDERED that the Amended Petition for a Writ of
Habeas Corpus (Dkt. No. 7) is DENIED.
IT IS FURTHER ORDERED that a Certificate of Appealability is
DENIED because Petitioner has not made “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). In addition, reasonable jurists could
not disagree with the Court’s resolution of Petitioner’s constitutional claims, nor
conclude that the issues are adequate to deserve encouragement to proceed further.
35 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As for Petitioner’s procedurally
defaulted claims, reasonable jurists would not find it debatable whether the petition
states a valid claim of the denial of a constitutional right or whether the Court’s
procedural ruling on the defaulted claims is correct. Slack v. McDaniel, 529 U.S.
473, 484 (2000).

Nevertheless, an appeal could be taken in good faith.

Accordingly, IT IS FURTHER ORDERED that Petitioner may proceed in
forma pauperis on appeal. 28 U.S.C. § 1915(a)(3).
SO ORDERED.
Dated: 

April 5, 2019 

s/Gershwin A. Drain 

HON. GERSHWIN A. DRAIN  

United States District Court Judge 

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, April 5, 2019, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager  

36