Beeler v. Campbell

Filing 13

OPINION and ORDER denying 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 George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL BEELER, #219411,
Petitioner,
CASE NO. 2:15-CV-14073
HON. GEORGE CARAM STEEH

v.
SHERMAN CAMPBELL,
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
Michigan prisoner Michael Beeler (“petitioner”) has filed a pro se petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting that he is
being held in violation of his constitutional rights. The petitioner pleaded no
contest to armed robbery, MICH. COMP. LAWS § 750.529, and impersonating a
peace officer, MICH. COMP. LAWS § 750.215(3), in the Oakland County Circuit
Court and was sentenced, as a fourth habitual offender, MICH. COMP. LAWS
§ 769.12, to concurrent terms of 15 to 50 years imprisonment and 4 to 15 years
imprisonment in 2014. In his pleadings, he raises claims concerning the

voluntariness of his plea and the effectiveness of trial counsel, and the trial
court’s plea colloquy. For the reasons stated, 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.
II.

Facts and Procedural History
The petitioner’s convictions arise from his armed robbery of a man while

pretending to be a police officer in Oakland County, Michigan on February 10,
2014. The petitioner approached the victim who was sitting in his parked truck
on the street in front of his girlfriend’s house. The petitioner told the victim that
he was a police officer, questioned the victim about someone he claimed to be
looking for, made the victim exit his car while armed with a gun, searched the
victim, and took the victim’s wallet, money, and cell phone before driving away
in a van. The victim contacted the police. See 3/6/14 Prelim. Exam Tr., pp. 614. The police traced the victim’s cell phone to a bar, where they arrested the
petitioner. The police found the victim’s cell phone and a small amount of
money in the petitioner’s van. See Pet. App. Brf., p. 4.
On August 11, 2014, the petitioner pleaded no contest to armed robbery
and impersonating a peace officer in exchange for an amendment to the
habitual information with a sentencing agreement for a minimum sentence of

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15 years imprisonment instead of the required 25-year minimum sentence.
See 8/11/14 Plea Hrg. Tr., pp. 3-11. On September 3, 2014, the trial court
sentenced him, as a fourth habitual offender, to concurrent terms of 15 to 50
years imprisonment and 4 to 15 years imprisonment in accordance with that
agreement. See 9/3/14 Sent. Hrg. Tr., p. 8.
The petitioner subsequently moved to withdraw his plea asserting that he
was innocent, that the incident was a drug transaction, and that his attorney
failed to investigate his case and coerced him into taking a plea. He also
asserted that the trial court did not obtain a reason for the no contest plea and
failed to advise him of the maximum sentences for each of the offenses. The
trial court conduct a hearing and denied the motion. See 3/18/15 Motion Hrg.;
People v. Beeler, No. 14-249469-FC (Oakland Co. Cir. Ct. March 18, 2015).
The petitioner filed a delayed application for leave to appeal with the Michigan
Court of Appeals, which was denied for lack of merit in the grounds presented.
People v. Beeler, No. 326736 (Mich. Ct. App. May 19, 2015). The petitioner
also filed an application for leave to appeal with the Michigan Supreme Court,
which was denied in a standard order. People v. Beeler, 498 Mich. 887, 869
N.W.2d 607 (2015).
The petitioner thereafter filed his federal habeas petition. He raises the

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following claims:
I.

Plea was rendered involuntary and unknowing due to
ineffective assistance of counsel.

II.

Trial court failed to advise him of maximum sentence for
each offense.

The respondent has filed an answer to the petition contending that it should be
denied for lack of merit. The petitioner filed a reply to that answer asserting
that he is entitled to relief on his claims.
III.

Standard of Review
Federal law 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 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
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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 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)).

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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
has 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)).

Pursuant to § 2254(d), “a habeas court must

determine what arguments or theories supported or ... could have supported,
the state court's decision; and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision" of the Supreme Court. Id. Thus, in order to obtain
habeas relief in federal court, a state prisoner must 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; 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

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“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 habeas 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 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

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precedent does not constitute ‘clearly established Federal law as determined
by the Supreme Court’” and it cannot provide the basis for federal habeas
relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam); see also
Lopez v. Smith, _ U.S. _ 135 S. Ct. 1, 2 (2014) (per curiam). The decisions of
lower federal courts, however, may be useful in assessing the reasonableness
of the state court’s resolution of an issue. 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. 354, 359 (E.D. Mich. 2002).
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). Lastly, habeas review is “limited to the record that
was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
In this case, the state trial court denied the petitioner’s plea withdrawal
motion. The court found that it had advised the petitioner of the maximum
sentence he faced - life imprisonment - which was for the armed robbery
offense and that any error in failing to advise him of the maximum penalty for
the impersonating a peace officer offense was harmless due to the concurrent
nature of the sentences. The court also determined that the reason for the no

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contest plea was the potential for civil liability. Lastly, the court ruled that there
was no basis in the record for the petitioner’s ineffective assistance of counsel
claim. See 3/18/15 Motion Hrg. Tr., pp. 8-10. The Michigan Court of Appeals
denied leave to appeal for lack of merit in the grounds presented and the
Michigan Supreme Court denied leave to appeal in a standard order. For the
reasons that follow, the Court concludes that the state courts’ decisions are
neither contrary to Supreme Court precedent nor an unreasonable application
of federal law or the facts.1
IV.

Analysis
A.

Involuntary Plea/Ineffective Assistance of Counsel Claims

The petitioner first asserts that he is entitled to habeas relief because his
plea was not knowing, intelligent, and voluntary due to the ineffective
assistance of counsel. As part of this claim, he asserts that counsel failed to
investigate his case, that he is innocent because the incident was a drug
transaction, and that counsel coerced him into accepting the plea bargain. The
respondent contends that these claims lack merit.
When a criminal defendant is convicted pursuant to a plea, habeas
review is limited to whether the plea was made knowingly, intelligently, and

1

The Court would reach the same result under a de novo standard of review.
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voluntarily. See generally United States v. Broce, 488 U.S. 563 (1989); Boykin
v. Alabama, 395 U.S. 238 (1969). A plea is intelligent and knowing where there
is nothing to indicate that the defendant is incompetent or otherwise not in
control of his or her mental faculties, is aware of the nature of the charges, and
is advised by competent counsel. Brady v. United States, 397 U.S. 742, 756
(1970). The plea must be made “with sufficient awareness of the relevant
circumstances and likely consequences.” Id. at 748. A plea is voluntary if it is
not induced by threats or misrepresentations and the defendant is made aware
of the direct consequences of the plea. Id. at 755. The voluntariness of a plea
“can be determined only by considering all of the relevant circumstances
surrounding it.” Id. at 749.
In this case, the state court record reveals that the petitioner’s plea was
knowing, intelligent, and voluntary. The petitioner was 49 years old at the time
of his plea and could read and write. As a repeat offender, he was familiar with
the criminal justice system. There is no evidence that he suffered from any
physical or mental problems which would have impaired his ability to
understand the criminal proceedings or the nature of his plea. The petitioner
was represented by legal counsel and conferred with counsel during the plea
process. The trial court advised the petitioner of his trial rights and the fact that

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he would be giving up those rights by pleading no contest. The parties
discussed the charges, the terms of the plea agreement, and the
consequences of the plea.

The parties stipulated to the preliminary

examination transcript as the factual basis for the plea. The petitioner indicated
he understood the plea agreement, that he wanted to take the plea, that he had
not been threatened or promised anything other than what was included in the
plea agreement, and that he was pleading no contest of his own free will. He
is bound by those statements. See Ramos v. Rogers, 170 F.3d 560, 566 (6th
Cir. 1999). There is no evidence of coercion. The fact that the petitioner was
subsequently dissatisfied with his plea or may have hoped for more lenient
treatment does not render his plea unknowing or involuntary. See Brady, 397
U.S. at 757.
The petitioner asserts that his plea is invalid because he is actually
innocent as the incident was really a drug transaction and because trial counsel
failed to investigate defenses and gather witnesses. A guilty or no contest
plea, however, involves a waiver of many constitutional rights, including the
right to a trial where the prosecution has the burden of proving guilt beyond a
reasonable doubt, the right to confront adverse witnesses, and the right to
present evidence in one’s defense. See Fautenberry v. Mitchell, 515 F.3d 614,

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636 (6th Cir. 2008) (citing Boykin, 395 U.S. at 243). A defendant who pleads
guilty or no contest waives all pre-plea issues, Tollett v. Henderson, 411 U.S.
258, 267 (1973), including any claim that he had a defense to the charges
against him. Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992);
Siegel v. New York, 691 F.2d 620, 626 n. 6 (2d Cir. 1981) (citing Tollett and
McMann v. Richardson, 397 U.S. 759 (1970)). A defendant “is not entitled to
withdraw his plea merely because he discovers long after the plea has been
accepted that his calculus misapprehended the quality of the State’s case or
the likely penalties attached to alternative courses of action.” Brady, 397 U.S.
at 757. The petitioner waived his right to present a defense to the charges by
pleading no contest. See Broce, 488 U.S. at 569; Tollett, 411 U.S. at 267;
United States v. Ormsby, 252 F.3d 844, 848 (6th Cir. 2001).
The petitioner also fails to show that trial counsel was ineffective in
advising him about his case. The Supreme Court has set forth a two-part test
for evaluating the claim of a habeas petitioner who is challenging a plea on the
ground that he or she was denied the Sixth Amendment right to the effective
assistance of counsel. First, the petitioner must establish that “counsel’s
representation fell below an objective standard of reasonableness.” Hill v.
Lockhart, 474 U.S. 52, 57-58 (1985) (quoting Strickland v. Washington, 466

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U.S. 668, 688 (1984)). To demonstrate that counsel’s performance fell below
this standard, a petitioner must overcome the “strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689.
Second, if the petitioner satisfies the first prong of this test, the petitioner
must then demonstrate that counsel’s performance resulted in prejudice, i.e.,
“that there is a reasonable probability that, but for counsel’s errors, [he/she]
would not have pleaded guilty and would have insisted on going to trial.” Hill,
474 U.S. at 59. The Supreme Court has explained that “[i]n many guilty plea
cases, the ‘prejudice’ inquiry will closely resemble the inquiry engaged in by
courts reviewing ineffective-assistance challenges to convictions obtained
through a trial.” Id. The Supreme Court has also emphasized that “these
predictions of the outcome at a possible trial, where necessary, should be
made objectively, without regard for the ‘idiosyncracies of the particular
decisionmaker.’” Id. at 59-60 (quoting Strickland, 466 U.S. at 695).
The Supreme Court has confirmed that a federal court’s consideration of
ineffective assistance of counsel claims arising from state criminal proceedings
is quite limited on habeas review due to the deference accorded trial attorneys
and state appellate courts reviewing their performance.

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“The standards

created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the
two apply in tandem, review is ‘doubly’ so.” Harrington, 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.

Additionally, the Supreme Court has emphasized the

extraordinary deference to be afforded trial counsel in the area of plea
bargaining. See Premo v. Moore, 562 U.S. 115, 125 (2011) (stating that “strict
adherence to the Strickland standard [is] all the more essential when reviewing
the choices an attorney made at the plea bargain stage”); Bray v. Andrews, 640
F.3d 731, 738 (6th Cir. 2011) (citing Premo).
To the extent that the petitioner asserts that trial counsel was ineffective
for failing to investigate defenses or take other action during the pre-plea
period, he is not entitled to relief. As discussed, it is well-settled that claims
about the deprivation of constitutional rights that occur before the entry of a
guilty or no contest plea are foreclosed by the plea. Broce, 488 U.S. at 569;
Tollett, 411 U.S. at 267. The Supreme Court has explained:
[A] guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise
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independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea. He may
only attack the voluntary and intelligent character of the guilty plea
by showing that the advice he received from counsel was not within
[constitutional standards].
Tollett, 411 U.S. at 267. Simply stated, a defendant who pleads guilty or no
contest generally waives any non-jurisdictional claims that arose before the
plea. In such a case, a reviewing court’s inquiry is limited to whether the plea
was knowing, intelligent, and voluntary. Broce, 488 U.S. at 569. Accordingly,
the petitioner’s claim that counsel was ineffective for failing to take certain
actions during the pre-trial period is foreclosed by his plea and does not
warrant relief.
The petitioner also asserts that trial counsel was ineffective for advising
him to plead no contest rather than preparing a defense to the charges.
Defense counsel has a duty to conduct a reasonable investigation into the facts
of a defendant’s case, or to make a reasonable determination that such
investigation is unnecessary. Strickland, 466 U.S. at 690-91; Lundgren v.
Mitchell, 440 F.3d 754, 771 (6th Cir. 2006); O’Hara v. Wiggington, 24 F.3d 823,
828 (6th Cir. 1994) (failure to investigate, especially as to key evidence, must
be supported by a reasoned determination that investigation is not warranted).
The petitioner, however, fails to establish that counsel did not investigate his

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case or was deficient in advising him to accept a plea. Counsel’s strategy in
pursuing a plea and foregoing other avenues of defense was reasonable given
the charges against the petitioner, the evidence presented at pre-trial hearings,
the uncertainties associated with trial, and the lack of a solid defense. Trial
counsel was also able to secure a 10-year reduction in the petitioner’s
minimum sentence and avoid a potential life sentence.
Although the petitioner believes that he could have defended against the
charges, he did not offer any evidence in the state courts, other than his own
assertions, to support his claim. It is well-settled that conclusory allegations are
insufficient to warrant habeas relief. See Cross v. Stovall, 238 F. App’x 32,
39-40 (6th Cir. 2007); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998)
(conclusory allegations of ineffective assistance of counsel do not justify
habeas relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir.
2006) (bald assertions and conclusory allegations do not provide a basis for
evidentiary hearing on habeas review). On habeas review, the petitioner
presents an affidavit from a friend, dated August 15, 2015, which states that the
petitioner and the victim were friends and that they had engaged in drug
transactions in the past. The affidavit, however, was not presented to the state
courts and will not be considered now because federal habeas review under

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28 U.S.C. §2254(d) is “limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen, 563 U.S. at 181.
Moreover, while the affidavit, if believed, establishes that the petitioner
and the victim knew each other and had engaged in drug deals in the past, it
does not concern the day in question nor exonerate the petitioner of the armed
robbery. Given the charges against the petitioner and the fact that he was
subject to a 25-year minimum sentence with a possible maximum life sentence
as a fourth habitual offender, trial counsel acted reasonably in advising the
petitioner to plead no contest to the charges and to forego other avenues of
defense. The Court is satisfied that trial counsel was effective and that the
petitioner’s plea was knowing, intelligent, and voluntary. Habeas relief is not
warranted on these claims.
B.

Plea Colloquy Claim

The petitioner next asserts that he is entitled to habeas relief because the
state trial court failed to advise him of the maximum sentence for each offense.
He claims that this “due process defect” with the plea procedure and rendered
his plea “unknowing and without an adequate understanding.” The respondent
contends that this claim lacks merit.
As an initial matter, the Court finds that the petitioner is not entitled to

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relief on any claim that the trial court violated plea-taking procedures under
Michigan law. 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) (“a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds
a federal court sitting on habeas review”); 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). The petitioner thus fails to state
a claim upon which federal habeas relief may be granted as any such issue.
The petitioner also fails to establish that the trial court’s plea colloquy
rendered his plea unknowing or without a sufficient understanding of the
consequences of the plea. First, the record indicates that the trial court
informed the petitioner of the maximum penalty that he faced for armed
robbery, which was life imprisonment. This was the maximum penalty that he
faced with or without the fourth habitual offender sentencing enhancement.
See MICH. COMP. LAWS §§ 750.529; 769.12. Second, while the trial court did
not specifically inform the petitioner of the maximum penalty for the
impersonating a peace officer offense, which was four years imprisonment

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without the fourth habitual offender enhancement and 15 years imprisonment
with the fourth habitual offender enhancement, the trial court clearly informed
him of the overall maximum penalty that he faced by tendering his plea - life
imprisonment - and that he was subject to a fourth habitual offender
enhancement. Given that the sentences for armed robbery and impersonating
a peace officer are concurrent under state law, the petitioner was informed of
the overall maximum potential sentence that he faced by tendering his plea.
This was sufficient to satisfy due process. The petitioner was not mislead and
was sufficiently advised of the consequences of his plea so as to render it
knowing, intelligent, and voluntary. See King v. Dutton, 17 F.3d 151, 153 (6th
Cir. 1994) (“[F]or a defendant’s plea . . . to be voluntary, the defendant must be
aware of the maximum sentence that could be imposed.”); cf. Hart v. Marion
Corr. Inst., 927 F.2d 256, 259 (6th Cir. 1991) (plea was not knowing or
intelligent where the trial court incorrectly informed the defendant that the
maximum sentence was 15 years when it was 75 years).2 Habeas relief is not
warranted on this claim.

2

The Court notes that the trial court’s failure to inform the petitioner of the
maximum sentence for the impersonating a police officer offense surely did not affect
his plea decision given that the 15-year maximum sentence for that offense, with the
fourth habitual offender enhancement, equaled the 15-year minimum sentence that he
agreed to serve on the armed robbery offense as part of his plea bargain. In this sense,
the alleged error was harmless.
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V.

Conclusion
For the reasons stated, the Court concludes that the petitioner is not

entitled to federal habeas relief on the claims contained in his pleadings.
Accordingly, the Court DENIES WITH PREJUDICE the petition for a writ of
habeas corpus.
Before the petitioner may appeal this 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 petitioner makes “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 claims 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). The Court concludes that the petitioner fails to make
a substantial showing of the denial of a constitutional right as to his claims.
Accordingly, the Court DENIES a certificate of appealability.
Lastly, the Court concludes that the petitioner should not be granted

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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, the Court DENIES the
petitioner leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
Dated: June 29, 2017

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 29, 2017, by electronic and/or ordinary mail, and also on
Michael Beeler #219411, Earnest C. Brooks
Correctional Facility, 2500 S. Sheridan Drive,
Muskegon Heights, MI 49444.
s/Barbara Radke
Deputy Clerk

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