Guster v. Klee

Filing 10

MEMORANDUM OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GARY LAMONT GUSTER, #138562,
Petitioner,
CASE NO. 2:15-CV-12877
HONORABLE ARTHUR J. TARNOW

v.
PAUL KLEE,
Respondent.
_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Gary Lamont

Guster (“Petitioner”) was convicted of first-degree home invasion, MICH. COMP. LAWS
§ 750.110a(2)(b), following a jury trial in the Washtenaw County Circuit Court and was
sentenced as a fourth habitual offender, MICH. COMP. LAWS § 769.12, to 8 years 4 months
to 25 years imprisonment in 2012. In his petition, he raises claims concerning the
admission of other acts evidence and the sufficiency of the evidence. For the reasons set
forth, the Court denies the petition for a writ of habeas corpus. The Court also denies a
certificate of appealability and denies leave to proceed in forma pauperis on appeal.

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II.

Facts and Procedural History
Petitioner’s conviction stems from his improper entry into an occupied dorm room,

and theft from a student, at the University of Michigan in Ann Arbor, Michigan on
January 6, 2012. At trial, the prosecution presented testimony from two students who
lived in the dorm room and were present during the incident, testimony from police
investigators (which referenced a security videotape showing Petitioner entering the
dorm), and testimony that Petitioner had committed a similar crime on campus in the past.
The Michigan Court of Appeals described the underlying facts, which are
presumed correct on habeas review, see 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581
F.3d 410, 413 (6th Cir. 2009), as follows:
Defendant entered the East Quad dormitory at the University of Michigan
and entered Room 301, which was marked with three names. One
roommate was present, asleep in her bed. Another roommate was walking
back to the room, but she stopped in the hallway and saw defendant in the
room. Defendant stared at the sleeping roommate; moments later, defendant
looked inside all three roommates' closets. Defendant then noticed the
roommate who was standing in the hallway. She asked defendant what he
was doing in the room, and defendant said that he was looking for a
bathroom. She told him that the bathroom was downstairs and defendant ran
away. A day later, the sleeping roommate noticed that a wallet was missing
from her desk.
***
At trial, the prosecution introduced evidence that defendant had entered a
fraternity house at the University of Michigan, where he stole a money clip
from a student's room. When the student saw defendant leaving the house,
defendant informed the student that he was looking for a bathroom.

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People v. Guster, No. 314734, 2014 WL 3704951, *1 (Mich. Ct. App. July 24, 2014)
(unpublished).
Petitioner did not testify at trial. His defense was that he was merely looking for a
bathroom, that he mistakenly entered the dorm room, and that he did not steal or intend to
steal anything from the room. At the close of trial, the jury convicted Petitioner of firstdegree home invasion. The trial court subsequently sentenced him to 8 years 4 months to
25 years imprisonment.
Petitioner filed an appeal of right with the Michigan Court of Appeals raising the
same claims presented on habeas review. The court denied relief on those claims and
affirmed his convictions. People v. Guster, No. 314734, 2014 WL 3704951,*1-2 (Mich.
Ct. App. July 24, 2014) (unpublished). Petitioner then filed an application for leave to
appeal with the Michigan Supreme Court, which was denied in a standard order. People
v. Guster, 497 Mich. 955, 858 N.W.2d 450 (2015).
Petitioner dated his federal habeas petition on August 4, 2015. As noted, he raises
claims concerning the admission of other acts evidence and the sufficiency of the
evidence. Respondent has filed an answer to the petition contending that it should be
denied. Petitioner has filed a reply to that answer.
III.

Standard of Review
Federal law imposes the following standard of review for habeas cases:

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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 proceedings.

28 U.S.C. § 2254(d).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a
rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [that] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas
court to ‘grant the writ if the state court identifies the correct governing legal principle
from [the Supreme] Court but unreasonably applies that principle to the facts of
petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529
U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court find
a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s
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decision must have been more than incorrect or erroneous. The state court’s application
must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations
omitted); see also Williams, 529 U.S. at 409. “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,
521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
The United States Supreme Court has held that “a state court’s determination that a
claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562
U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Supreme Court 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)). 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. Thus, in
order to obtain federal habeas relief, a state prisoner must show that the state court's
rejection of a claim “was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded

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disagreement.” Id.; see also White v. Woodall, _ U.S. _, 134 S. Ct. 1697, 1702 (2014).
Federal judges “are required to afford state courts due respect by overturning their
decisions only when there could be no reasonable dispute that they were wrong.” Woods
v. Donald, _ U.S. _, 135 S. Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as
long as it is within the “realm of possibility” that fairminded jurists could find the state
court decision to be reasonable. Woods v. Etherton, _ U.S. _, 136 S. Ct. 1149, 1152
(2016).
Section 2254(d)(1) limits a federal court’s review to a determination of whether
the state court’s decision comports with clearly established federal law as determined by
the Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at
412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme
Court “has held on numerous occasions that it is not ‘an unreasonable application of
clearly established Federal law’ for a state court to decline to apply a specific legal rule
that has not been squarely established by this Court”) (quoting Wright v. Van Patten, 552
U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71-72. Section 2254(d)
“does not require a state court to give reasons before its decision can be deemed to have
been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does
not require citation of [Supreme Court] cases–indeed, it does not even require awareness
of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court

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decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540
U.S. at 16.
The requirements of “clearly established law” are to be determined solely by
Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme Court,’” and “[i]t therefore cannot
form the basis for habeas relief under AEDPA.” Parker v. Matthews, 567 U.S. _, 132 S.
Ct. 2148, 2155 (2012) (per curiam); see also Lopez v. Smith, _ U.S. _ 135 S. Ct. 1, 2
(2014) (per curiam). The decisions of lower federal courts may be useful in assessing the
reasonableness of the state court’s decision. Stewart v. Erwin, 503 F.3d 488, 493 (6th
Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v.
Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal
habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with
clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).
Moreover, habeas review is “limited to the record that was before the state court.” Cullen
v. Pinholster, 563 U.S. 170, 181 (2011).

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IV.

Analysis
A.

Admission of Other Acts Evidence

Petitioner first asserts that he is entitled to habeas relief because the trial court
erred in admitting other bad acts evidence. Respondent contends that this claim is not
cognizable on habeas review and/or lacks merit.
A federal court may only grant habeas relief to a person who is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Alleged trial court errors in the application of state evidentiary law are
generally not cognizable as grounds for federal habeas relief. See Estelle v. McGuire, 502
U.S. 62, 67–68 (1991) (“it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions”); Serra v. Michigan Dep't of
Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). “Trial court errors in state procedure or
evidentiary law do not rise to the level of federal constitutional claims warranting relief in
a habeas action, unless the error renders the proceeding so fundamentally unfair as to
deprive the petitioner of due process under the Fourteenth Amendment.” McAdoo v. Elo,
365 F.3d 487, 494 (6th Cir. 2004) (quoting McGuire, 502 U.S. at 69-70); see also Wynne
v. Renico, 606 F.3d 867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514, 519-20
(6th Cir. 2007)); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).

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The Michigan Court of Appeals considered this claims on direct appeal and denied
relief. The court explained:
Defendant first argues that the trial court erred by admitting other-acts
evidence in violation of MRE 404(b). At trial, the prosecution introduced
evidence that defendant had entered a fraternity house at the University of
Michigan, where he stole a money clip from a student's room. When the
student saw defendant leaving the house, defendant informed the student
that he was looking for a bathroom. We review the trial court's decision to
admit this type of evidence for an abuse of discretion. People v. Gipson,
287 Mich App 261, 262; 787 NW2d 126 (2010). “Prior bad acts evidence is
admissible if: (1) a party offers it to prove ‘something other than a character
to conduct theory’ as prohibited by MRE 404(b); (2) the evidence fits the
relevancy test articulated in MRE 402, as ‘enforced by MRE 104(b)’; and
(3) the balancing test provided by MRE 403 demonstrates that the evidence
is more probative of an issue at trial than substantially unfair to the party
against whom it is offered, defendant in this case.” People v. Hawkins, 245
Mich App 439, 447–448; 628 NW2d 105 (2001) (citation omitted).
The evidence was offered for the proper purpose of showing a common
plan or scheme because there was a “concurrence of common features” that
showed defendant's “individual manifestations of a general plan” to target
students and then act as if he was merely looking for a bathroom. People v.
Hine, 467 Mich 242, 251; 650 NW2d 659 (2002). Moreover, the evidence
was offered for the purpose of showing intent and the absence of mistake
because the evidence was admissible to show that it was “objectively
improbable” that defendant was merely inside looking for a bathroom at the
time of the instant crime. People v. Mardlin, 487 Mich 609, 616–617; 790
NW2d 607 (2010). Second, the evidence was relevant. MRE 401.
First-degree home invasion is committed in part when a defendant either
intends when entering to commit a larceny in the dwelling or at any time
while entering, present in, or exiting the dwelling commits a larceny.
People v. Wilder, 485 Mich 35, 43; 780 NW2d 265 (2010). Thus,
defendant's intent to commit a larceny was in issue. Defendant's prior act
had a “concurrence of common features” and was probative of defendant's
general plan to target students, steal wallets or purses, and then, when
caught, act as if he was merely looking for a bathroom. Hine, 467 Mich at
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251. As already noted, defendant's prior act was also relevant to show that it
was “objectively improbable” that defendant was merely inside the dorm
looking for a bathroom. Mardlin, 487 Mich at 616. The challenged evidence
thus made it more probable that defendant, without mistake, entered into
Room 301 with the intent to commit larceny. Hawkins, 245 Mich App at
449.
Moreover, the evidence's probative value was not substantially outweighed
by the danger of unfair prejudice. MRE 403. The evidence was highly
probative of defendant's common plan or scheme, intent to commit larceny,
and lack of mistake. There is no evidence that the other acts were “given
undue or preemptive weight by the jury,” Crawford, 458 Mich at 398, or
that the evidence injected “considerations extraneous to the merits of the
lawsuit,” People v. Goree, 132 Mich App 693, 702–703; 349 NW2d 220
(1984). Finally, the jury received an appropriate limiting instruction. See
People v. Gibson, 219 Mich App 530, 534; 557 NW2d 141 (1996). The trial
court did not abuse its discretion by admitting the other-acts evidence.
Guster, 2014 WL 3704951 at *1-2.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. First, to the extent that Petitioner
asserts that the trial court erred in admitting evidence under Michigan law, he merely
alleges violations of state law which do not justify federal habeas relief. See, e.g., Bey,
500 F.3d at 519. State courts are the final arbiters of state law and the federal courts will
not intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago,
809 F.2d 326, 328 (6th Cir. 1987); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005);
Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Habeas relief does not lie for
perceived errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

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Second, Petitioner fails to establish that the admission of the other acts evidence
resulted in a federal due process violation. As to the admission of other acts evidence, the
United States Supreme Court has declined to hold that similar “other acts” evidence is so
extremely unfair that its admission violates fundamental conceptions of justice. Dowling
v. United States, 493 U.S. 342, 352–53 (1990). Thus, “[t]here is no clearly established
Supreme Court precedent which holds that a state violates due process by permitting
propensity evidence in the form of other bad acts evidence.” Bugh, 329 F.3d at 512.
Consequently, there is no Supreme Court precedent that the state court decisions could be
deemed “contrary to” under 28 U.S.C. § 2254(d)(1). Id. at 513; Adams v. Smith, 280 F.
Supp. 2d 704, 716 (E.D. Mich. 2003). Petitioner thus fails to state a claim upon which
habeas relief may be granted as to such matters.
Moreover, even if Petitioner states a cognizable claim as to the other acts evidence,
he is not entitled to relief. He fails to show that the admission of the other acts evidence
rendered his trial fundamentally unfair. The other acts evidence was relevant and
admissible on the issue of common plan or scheme, intent, and the absence of mistake.
Furthermore, the risk of unfair prejudice was mitigated by the fact that the trial court
instructed the jury on the proper consideration of the evidence. Jurors are presumed to
follow the court’s instructions. See Penry v. Johnson, 532 U.S. 782, 799 (2001) (citing
Richardson v. Marsh, 481 U.S. 200, 211 (1987)); United States v. Powell, 469 U.S. 57, 66

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(1984) (“Jurors ... take an oath to follow the law as charged, and they are expected to
follow it.”). Petitioner fails to show that the admission of the other acts evidence was
erroneous or, more importantly for purposes of habeas review, that it rendered his trial
fundamentally unfair. Habeas relief is not warranted on this claim.
B.

Sufficiency of the Evidence

Petitioner also asserts that he is entitled to habeas relief because the prosecution
presented insufficient evidence to support his first-degree home invasion conviction.
Respondent contends that this claim lacks merit.
The Due Process Clause “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). The question on a
sufficiency of the evidence claim 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.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). The Jackson standard must be applied “with explicit reference to the
substantive elements of the criminal offense as defined by state law.” Brown v. Palmer,
441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n. 16).
A federal court views this standard through the framework of 28 U.S.C. § 2254(d).
Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Under the AEDPA, challenges to

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the sufficiency of the evidence “must survive two layers of deference to groups who
might view facts differently” than a reviewing court on habeas review – the factfinder at
trial and the state court on appellate review – as long as those determinations are
reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). “[I]t is the
responsibility of the jury – not the court – to decide what conclusions should be drawn
from the evidence admitted at trial.” Cavazos v. Smith, _ U.S. _, 132 S. Ct. 2, 4 (2011)
(per curiam). “A reviewing court does not re-weigh the evidence or re-determine the
credibility of the witnesses whose demeanor has been observed by the trial court.”
Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v.
Lonberger, 459 U.S. 422, 434 (1983)). Accordingly, the “mere existence of sufficient
evidence to convict . . . defeats a petitioner’s claim.” Matthews, 319 F.3d at 788-89.
Under Michigan law, the elements of first-degree home invasion are: (1) that the
defendant either broke and entered a dwelling or entered a dwelling without permission,
(2) that defendant either intended when entering to commit a felony, larceny, or assault in
the dwelling or at any time when entering, present in, or exiting the dwelling committed a
felony, larceny, or assault; and (3) while the defendant was entering, present in, or exiting
the dwelling either the defendant was armed with a dangerous weapon or another person
was lawfully present in the dwelling. People v. Wilder, 485 Mich. 35, 43, 780 N.W.2d
265 (2010); MICH. COMP. LAWS § 750.110a(2). Direct or circumstantial evidence and

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reasonable inferences arising from that evidence may constitute satisfactory proof of the
elements of an offense, People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993),
including the defendant’s intent or state of mind. People v. Dumas, 454 Mich. 390, 398,
563 N.W.2d 31 (1997); see also People v. Nowack, 462 Mich. 392, 402-03, 614 N.W.2d
78 (2000).
The Michigan Court of Appeals considered this claim on direct appeal and denied
relief. The court explained in relevant part:
Here, the evidence overwhelmingly established that defendant did not have
permission to enter Room 301, that another person was lawfully present in
Room 301 at the time defendant entered, and that defendant took and
carried away the sleeping roommate's leather wallet. The evidence
established that the sleeping roommate had placed her leather wallet on her
desk and last noticed it there before defendant was present in the room.
Alternatively, a reasonable jury could have concluded beyond a reasonable
doubt that defendant intended to commit a larceny when entering Room
301. See People v. Roper, 286 Mich App 77, 83; 777 NW2d 483 (2009). It
is true that “[i]ntent to commit larceny cannot be presumed solely from
proof of the breaking and entering.” People v. Uhl, 169 Mich App 217, 220;
425 NW2d 519 (1988). “However, intent may reasonably be inferred from
the nature, time and place of defendant's acts before and during the breaking
and entering.” Id. In this case, a reasonable jury could have concluded that
defendant entered the dorm room, confirmed that the roommate was asleep,
and then looked through each closet to seek out items to take away without
consent. See id. Moreover, defendant's flight “indicate[d][a] consciousness
of guilt,” People v. Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995),
and the other-acts evidence admitted in this case strongly suggested that
defendant had a common plan or scheme to commit larceny in this manner
and did not end up in the room by mistake or accident. There was sufficient
evidence to prove the elements of first-degree home invasion beyond a
reasonable doubt.
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Guster, 2014 WL 3704951 at *2.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. The prosecution presented sufficient
evidence to establish Petitioner’s guilt of first-degree home invasion through the
testimony of the victims and the police investigators, as well as reasonable inferences
therefrom. In particular, the testimony showed that Petitioner entered the dorm room
without permission, that one student was asleep in the room and another student
approached the room while he was present in the room, and that he either stole the
sleeping victim’s wallet and/or intended to steal items from the room. Considered in a
light favorable to the prosecution, the trial testimony was sufficient to show that
Petitioner acted with the requisite intent to support his first-degree home invasion
conviction.
Petitioner challenges the inferences the jury drew from the testimony presented at
trial. However, it is the job of the fact-finder at trial, not a federal habeas court, to resolve
evidentiary conflicts. See Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594,
618 (6th Cir. 2002); Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A federal
habeas corpus court faced with a record of historical facts that supports conflicting
inferences must presume - even if it does not affirmatively appear in the record - that the
trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that

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resolution.”). The jury’s verdict, and the Michigan Court of Appeals’ decision affirming
that verdict, were reasonable. The evidence presented at trial, viewed in a light favorable
to the prosecution, establish beyond a reasonable doubt that Petitioner committed firstdegree home invasion. Habeas relief is not warranted on this claim.
V.

Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to relief

on his claims and that the petition for a writ of habeas corpus must be denied.
Before Petitioner may appeal the Court’s decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on
the merits, the substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court’s assessment of the constitutional claim debatable
or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). Petitioner makes no such showing – he fails to make a substantial
showing of the denial of a constitutional right as to his habeas claims. No certificate of

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appealability is warranted. Nor should Petitioner be granted leave to proceed in forma
pauperis on appeal as an appeal cannot be taken in good faith. See FED. R. APP. P. 24(a).
Accordingly;
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED and
leave to proceed in forma pauperis on appeal is DENIED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: February 17, 2017
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on February 17, 2017, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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