Williams v. Jackson
MEMORANDUM OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JOHNNY L. WILLIAMS,
CASE N0. 2:16-CV-12042
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND GRANTING
LEAVE TO APPEAL IN FORMA PAUPERIS
Johnny L. Williams, (“Petitioner”), incarcerated at the Brooks Correctional
Facility in Muskegon Heights, Michigan, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his convictions for second-degree
murder, Mich. Comp. Laws § 750.317; and felony-firearm, Mich. Comp. Laws §
750.227b. For the reasons that follow, the petition for writ of habeas corpus is
Petitioner was originally charged with first-degree murder and felonyfirearm. Petitioner was convicted by a jury in the Wayne County Circuit Court of
the lesser offense of second-degree murder and guilty as charged of felonyfirearm. This Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct on habeas review
pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th
Defendant’s convictions arose from the fatal shooting of Henry Morgan
at a motorcycle club in Detroit. Morgan, defendant, and defendant’s
fiancée, Tiffany Pritchett, had gathered with several others for an event
at the club. Testimony indicated that defendant and Morgan were
involved in an altercation, and that club members separated the two
men. Later the same night the men had another argument, and
defendant shot Morgan once in the abdomen. Following the shooting,
defendant left the scene with Pritchett. Defendant turned himself in to
the police 15 days later. The defense theory at trial was that defendant
acted in self-defense. Defendant testified that immediately before the
shooting, Morgan pursued him and reached for a gun. Pritchett
corroborated defendant’s testimony to the extent that she claimed to
observe Morgan reach toward his back or waist-area before defendant
Here, there was trial testimony that defendant left the scene by jumping
in Pritchett’s van and driving away with her. When the police arrived
soon after the shooting, there was no gun on the premises and both
defendant and Pritchett had left. Although defendant did not directly
flee from police at the scene, he admittedly left the scene and did not
contact the police for 15 days, even though he was aware that he was
wanted in connection with the shooting.
People v. Williams, No. 299484, 2012 WL 164094, at * 1, 4 (Mich. Ct. App.
Jan. 19, 2012).
Petitioner’s conviction was affirmed on appeal. Id.
Petitioner filed an application for leave to appeal in the Michigan Supreme
Court. The Michigan Supreme Court granted leave to appeal limited to the issue
whether Offense Variable 19 of the Michigan Sentencing Guidelines had been
misscored. People v. Williams, 493 Mich. 876, 821 N.W.2d 570 (2012). After oral
argument the Supreme Court vacated its earlier order and denied leave to appeal
because it was no longer persuaded that the questions presented should be
reviewed. People v. Williams, 493 Mich. 965, 828 N.W.2d 684 (2013).
Petitioner filed a post-conviction motion for relief from judgment, which was
denied. People v. Williams, No. 09-031564-01-FC (Wayne Cir. Ct. Sept. 22,
2014). The Michigan appellate courts denied petitioner leave to appeal. People
v. Williams, No. 324906 (Mich. Ct. App. May 19, 2015); lv. den. 499 Mich. 914,
877 N.W. 2d 900 (2016).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Mr. Williams was denied his Sixth and Fourteenth Amendment rights
to a fair trial and due process of law through the prosecutor’s
misconduct, including shifting the burden of proof and improper
questioning and argument.
II. The trial court’s assessment of five points for PRV 2 [prior low
severity conviction] were error resulting in a higher guidelines’ range
than was supported by the record, and the sentence imposed thus was
an unreasonable departure necessitating reversal and re-sentencing.
III. Defendant Williams is entitled to relief from judgment where defense
counsel failed to specifically raise the issue of self-defense under the
2006 Self-Defense Act, (“SDA”) MCL 780.971 et. seq., relying instead
on the common law which not only deprived defendant [of] the
opportunity to put on a substantial and effective defense, but so
prejudiced him as to deny his right to a fair trial and the Sixth
Amendment right to effective assistance of counsel.
IV. Defendant Williams is entitled to relief from judgment where defense
counsel’s failure to call a known favorable eyewitness to the shooting
supporting the defense of self-defense, denied defendant not only his
Sixth Amendment right to the effective assistance of counsel, and a fair
trial, but also his vested due process rights under the compulsory
process of the Sixth Amendment to present his own witnesses to
establish a meaningful defense.
V. Defendant Williams is entitled to relief from judgment where the
prosecution failed to present sufficient evidence to disprove defendant’s
claim of self-defense.
VI. Defendant Williams is entitled to relief from judgment where the
prosecution failed to present sufficient evidence to support defendant’s
second-degree murder conviction.
VII. Defendant is entitled to relief from judgment where the prosecutor
knowingly used false testimony to obtain a tainted conviction, and failed
to correct the false and misleading facts known to the jury, all in
violation of defendant’s Fourteenth Amendment rights under the federal
and state constitutions.
VIII. Defendant Williams is entitled to relief from judgment where his
conviction is against the great weight of the evidence.
IX. Defendant Williams is entitled to relief from judgment because his
vested right to a fair and impartial trial was violated where the trial court
erroneously instructed the jury to consider whether defendant could
have safely retreated prior to using deadly force.
X. Defendant Williams is entitled to relief from judgment where the trial
court abused its discretion when it denied defendant’s motion for
directed verdict on the charge of first-degree premeditated murder as
the prosecution failed to present sufficient evidence of premeditation.
XI. Defendant Williams is entitled to relief from judgment where
appellate counsel’s performance violated his Sixth Amendment right to
the effective assistance of counsel on direct appeal as guaranteed by
the Sixth Amendment.
XII. Petitioner was denied his fundamental protections to a fair trial by
and through the cumulative effect of error that took place at the hands
of the trial court, the prosecution, defense counsel and appellate
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas
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–
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
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs
when “a state court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may
not “issue the writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id. at 410-11. “[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 Court is aware that petitioner raised his third through twelfth claims in
his post-conviction motion for relief from judgment. The judge denied these
claims in part because petitioner failed to show cause and prejudice, as required
by M.C.R. 6.508(D)(3), for not raising these claims on his appeal of right.
Although the state judge court judge mentioned M.C.R. 6.508(D)(3), the
AEDPA’s deferential standard of review would nonetheless apply to the judge’s
opinion because he alternatively rejected the claims on the merits. See Moritz v.
Lafler, 525 F. App’x. 277, 284 (6th Cir. 2013). 1
A. Claim # 1. The prosecutorial misconduct claims.
Petitioner argues that he was denied a fair trial because of prosecutorial
Respondent urges this Court to deny these claims on the ground that
they are procedurally defaulted pursuant to M.C.R. 6.508(D)(3). Petitioner
argues in his eleventh claim that appellate counsel was ineffective for failing to
raise these claims on the appeal of right. Ineffective assistance of counsel may
establish cause for procedural default. Edwards v. Carpenter, 529 U.S. 446, 45152 (2000). Given that the cause and prejudice inquiry for the procedural default
issue merges with an analysis of the merits of petitioner’s defaulted claims, it
would be easier to consider the merits of these claims. See Cameron v. Birkett,
348 F. Supp. 2d 825, 836 (E.D. Mich. 2004).
“Claims of prosecutorial misconduct are reviewed deferentially on habeas
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v.
Parker, 344 F. 3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper comments
will be held to violate a criminal defendant’s constitutional rights only if they “‘so
infected the trial with unfairness as to make the resulting conviction a denial of
due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will thus
form the basis for habeas relief only if the conduct was so egregious as to render
the entire trial fundamentally unfair based on the totality of the circumstances.
Donnelly v. DeChristoforo, 416 U.S. at 643-45. In order to obtain habeas relief
on a prosecutorial misconduct claim, a habeas petitioner must show that the
state court’s rejection of his prosecutorial misconduct claim “was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Parker v.
Matthews, 132 S. Ct. 2148, 2155 (2012)(quoting Harrington, 562 U.S. at 103).
Petitioner first contends that the prosecutor committed misconduct by
asking Ms. Pritchett whether petitioner had a “jealous heart.”
The Michigan Court of Appeals rejected this claim:
“[A] prosecutor’s good-faith effort to admit evidence does not constitute
misconduct.” Here, defendant has not shown that the prosecutor
acted in bad faith. Defendant’s demeanor was a matter of concern to
both parties in light of the defense theory that defendant acted in
self-defense. Defense counsel noted during opening statement that
defendant was calm on the evening in question. Defense counsel
asserted that in contrast to defendant’s calm demeanor, Morgan was
aggressive, drunk, and furious, and had a “gun mentality.” Given the
parties’ theories, defendant has not demonstrated that the questions
concerning his temper and jealousy on the night in question were
improper. Viewed in context, the challenged questions were not
intended to inject improper character evidence, but rather sought
information that was both relevant and responsive to the defense
theory. Regardless, Pritchett denied that defendant had a jealous
heart or a violent temper, so reversal is not warranted on this issue.
People v. Williams, No. 299484, 2012 WL 164094, at * 1 (internal citation
Although petitioner framed his claim as a prosecutorial-misconduct
challenge, “it amounts in the end to a challenge to the trial court’s decision to
allow the introduction of this evidence.” Webb v. Mitchell, 586 F. 3d 383, 397
(6th Cir. 2009). “A prosecutor may rely in good faith on evidentiary rulings made
by the state trial judge and make arguments in reliance on those rulings.” Cristini
v. McKee, 526 F.3d 888, 900 (6th Cir. 2008). For a prosecutor’s
cross-examination of a witness to rise to the level of prosecutorial misconduct, a
defendant is required to show intentional misconduct or reckless disregard for
the truth on the part of the prosecutor. See U.S. v. Sexton, 119 F. App’x. 735,
750 (6th Cir. 2005); vacated in part on other grds, 2005 WL 6011238 (6th Cir.
Apr. 4, 2005). The questions posed by the prosecutor to Ms. Pritchett about
petitioner’s temper and possible jealousy were relevant to challenging the
defense theory that petitioner was calm and passive on the night of the shooting,
so as to rebut his self-defense claim. A prosecutor does not commit misconduct
by asking witnesses relevant questions. See Slagle v. Bagley, 457 F. 3d 501,
518 (6th Cir. 2006). Petitioner’s claim is without merit.
Petitioner next argues that the prosecutor improperly sought to elicit
irrelevant character evidence that petitioner manipulated people, when she
asked petitioner if he “used people” or obtained money from several women.
The Sixth Circuit has noted that there are no Supreme Court cases which
support the proposition that a prosecutor’s questions that simply call for answers
that are inadmissible due to relevancy constitute prosecutorial misconduct that
rises to the level of a federal due process violation. See Wade v. White, 120 F.
App’x. 591, 594 (6th Cir. 2005). Thus, the fact that the prosecutor attempted to
elicit irrelevant evidence would not entitle petitioner to habeas relief. Id. In any
event, the trial judge sustained defense counsel’s objection to the questions and
later instructed the jury that the lawyers’ questions and comments are not
evidence, that the case should be decided on the basis of the evidence, and that
the jury should follow the judge’s instructions. People v. Williams, 2012 WL
164094, at * 2. These instructions sufficiently removed any taint from the
Petitioner finally argues that the prosecutor improperly commented on
petitioner’s right to remain silent with the following remarks:
Then he wants you to believe that he is the victim in this case.
[Defendant] is the victim in this case, that he’s an innocent man
because his actions were justified. He reasonably believes that his life
was in danger. He wanted to wait for the police. He wanted to wait for
the police outside. That’s what he says, but do his actions suggest
that in any way? He said he stood outside the club for less than a
minute, that he ordered his girlfriend to drive away, that she did so,
that the police were coming in their direction, but yet he doesn’t go to
the police. He doesn’t tell her to take him to where they are. The
reasons he left was because he was scared because Narco was
coming after him, but he still doesn’t have anyone take him to the
police station until fifteen days later.
Ladies and gentlemen, an innocent man, a victim is someone that’s
going to not run out a front door and stay gone for fifteen days. An
innocent man is someone that’s going to want the police and everyone
to know my life was in danger, my life was threatened—you need to
know what happened.
If he was really a victim and wanted, as he said, wanted the police
initially to know what happened, he would have went back, and he
would have told them.
(Tr. 4/27/10, pp. 24-26).
The Michigan Court of Appeals rejected the claim:
The trial court sustained defendant’s objections to these remarks and
ruled that defendant “has an absolute right not to make any
statements” and “has no obligation to talk to the police.” To the extent
that the challenged comments here could be viewed as improper, the
trial court’s instructions to the jury cured any error.
People v. Williams, 2012 WL 164094, at * 2 (internal citation omitted).
It is a violation of the Due Process clause of the Fourteenth Amendment
for the prosecution to use a defendant’s post-arrest silence to impeach
exculpatory testimony given by the defendant at trial. Doyle v. Ohio, 426 U.S.
610, 619 (1976). However, a single isolated reference to a defendant’s exercise
of his right to remain silent does not deprive a criminal defendant of a fair trial
when the judge explicitly sustains an objection to the only prosecutorial question
touching upon a defendant’s post-arrest silence, the prosecutor engages in no
further questioning or argument with respect to the defendant’s silence, and the
judge specifically advises jury that it should disregard any questions to which an
objection was sustained. See Greer v. Miller, 483 U.S. 756, 764-65 (1987).
In the present case, there was only one isolated reference to petitioner’s
refusal to speak with the police. The judge immediately sustained an objection
to the remark. The prosecutor never repeated this reference during trial. The
judge instructed the jurors not to consider any evidence that had been stricken.
Because there was only one isolated reference to petitioner’s exercise of his
right to remain silent, and the judge sustained an objection to the remark and
gave a cautionary instruction to the jury, petitioner is not entitled to habeas relief
on his first claim.
B. Claim # 2. The sentencing guidelines claim.
Petitioner claims that the trial judge incorrectly scored his sentencing
Petitioner’s claim that the state trial court incorrectly scored or calculated
his sentencing guidelines range under the Michigan Sentencing Guidelines is not
a cognizable claim for federal habeas review, because it is basically a state law
claim. See Tironi v. Birkett, 252 F. App’x. 724, 725 (6th Cir. 2007); Howard v.
White, 76 F. App’x. 52, 53 (6th Cir. 2003). Errors in the application of state
sentencing guidelines cannot independently support habeas relief. See Kissner
v. Palmer, 826 F. 3d 898, 904 (6th Cir. 2016). Petitioner is not entitled to relief
on his second claim.
C. Claims # 3 and # 4. The ineffective assistance of trial counsel
Petitioner alleges he was denied the effective assistance of trial counsel in
his third and fourth claims.
To show that he was denied the effective assistance of counsel under
federal constitutional standards, a defendant must satisfy a two prong test. First,
the defendant must demonstrate that, considering all of the circumstances,
counsel’s performance was so deficient that the attorney was not functioning as
the “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington,
466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong
presumption that counsel’s behavior lies within the wide range of reasonable
professional assistance. Id. In other words, petitioner must overcome the
presumption that, under the circumstances, the challenged action might be
sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must
show that such performance prejudiced his defense. Id. To demonstrate
prejudice, the defendant must show that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
Petitioner in his third claim alleges that trial counsel was ineffective for
failing to assert petitioner’s claim of self-defense under Michigan’s Self-Defense
Act (“SDA”), relying instead on the common law doctrine of self-defense.
Petitioner claims that he was prejudiced because the SDA does not require a
person who uses deadly force to retreat, as the common law self-defense
doctrine requires, but permits a person to “stand his ground.”
Petitioner raised this claim in his post-conviction motion for relief from
judgment. The judge denied petitioner’s claim:
Defendant also argues that his counsel was ineffective for proceeding
with the theory of self-defense under the common law rather than
under the Self-Defense Act, MCL 780.971, et seq (the Act). Defendant
contends that there is no duty to retreat under the Act. The Court
Under the common law, generally, the killing of another person in
self-defense by one who is free from fault is justifiable homicide if,
under all the circumstances, he honestly and reasonably believes that
he is in imminent danger of death or great bodily harm and that it is
necessary for him to exercise deadly force. People v Riddle, 467
Mich116, 119; 649 NW2d 30 (2002). “The necessity element of
self-defense normally requires that the actor try to avoid the use of
deadly force if he can safely and reasonably do so, for example by
applying nondeadly force or by utilizing an obvious and safe avenue
of retreat.” Id [Footnote omitted]. Thus, under common law, a person
has a duty to attempt to avoid the use of deadly force by either using
non deadly force or by retreating to a safe place.
Under the Act, MCL 780.971, et seq, “the Legislature codified the
circumstances in which a person may use deadly force in self-defense
or in defense of another person without having the duty to retreat.”
People v Dupree, 486 Mich 693, 708; 788 NW2d 399 (2010). The Act
provides in relevant part:
(1) An individual who has not or is not engaged in the
commission of a crime at the time he or she uses deadly
force may use deadly force against another individual
anywhere he or she has the legal right to be with no duty
to retreat if either of the following applies:
(a) The individual honestly and reasonably believes that
the use of deadly force is necessary to prevent the
imminent death of or imminent great bodily harm to
himself or herself or to another individual.
Hence, three conditions must exist for the use deadly force without a
duty to retreat to be proper: (1) the person using deadly force must not
be committing a crime at the time of using deadly force; (2) the person
using deadly force is in a place that he or she has a legal right to be;
and (3) the person using deadly force must have an honest and
reasonable belief that deadly force is necessary to prevent imminent
death or great bodily harm to himself or herself or to another person.
Furthermore, the Act also specifies that, other than the conditions
enumerated in MCL 780.972, the Act “does not modify the common
law of this state ...regarding the duty to retreat before using deadly
force or force other than deadly force.” MCL 780.973.
Thus, for Defendant to establish that he had no duty to retreat, he was
required to demonstrate to the jury that he had right to be in the
motorcycle club, that he was not engaged in the commission of a
crime at the time that he used deadly force, and that he honestly and
reasonably believed that deadly force was necessary to prevent death
or great bodily harm to himself or another person. Whether under the
common law or under the Act, Defendant must still demonstrate, at the
very least, that his belief was honest and reasonable that deadly force
was necessary to prevent imminent death or great bodily harm to him
or to another person. Defendant’s contention that proceeding with his
claim of self-defense as justification for killing under the common law
rather than under the Act constitutes ineffective assistance of counsel
is without merit because the Act does not afford unconditional
permission to use deadly force without any duty to retreat. Therefore,
counsel cannot be deemed ineffective for proceeding under a common
law self-defense theory rather than a self-defense theory under the
People v. Williams, No. 09-031564-01-FC, Slip. Op. at * 6–8.
Petitioner failed to show that he was entitled to invoke the Self–Defense
Act to the facts of his case. The SDA “modified the common law’s duty to retreat
that was imposed on individuals who were attacked outside their own home or
were not subjected to a sudden, fierce, and violent attack.” See People v.
Guajardo, 300 Mich. App. 26, 35, 832 N.W. 2d 409 (2013). The SDA created “a
new substantive right, i.e., the right to stand one’s ground and not retreat before
using deadly force in certain circumstances in which a duty to retreat would have
existed at common law.” See People v. Conyer, 281 Mich. App. 526, 530, 762
N.W. 2d 198 (2008). One of the conditions for “standing one’s ground” and not
retreating is that the person who uses deadly force “has not or is not engaged in
the commission of a crime at the time he or she uses deadly force.” Mich. Comp.
Laws § 780.972(1).
Defense counsel could have reasonably determined that petitioner was
not entitled to assert a “stand your ground” defense under the SDA because
petitioner had been the initial aggressor when he punched Mr. Morgan earlier in
the evening. Petitioner also committed the felony offense of carrying a
concealed weapon, which also would have precluded him under Mich. Comp.
Laws § 780.972(1) from asserting his right to stand his ground before using
deadly force. Under the circumstances, counsel did not act deficiently in failing
to assert a “stand your ground” defense under the SDA and instead relying on
the common law self-defense doctrine.
More importantly, petitioner is unable to show that he was prejudiced by
counsel’s decision to assert a self-defense argument under common law,
because even under the common law there is no duty for a person to retreat
prior to using deadly force if he or she cannot safely do so, nor is a person
required to retreat from a sudden fierce and violent attack, nor from an attacker
he or she reasonably believes is about to use a deadly weapon. See People v.
Riddle, 467 Mich. 116, 119, 649 N.W. 2d 30 (2002). The jury, in fact, was
instructed that petitioner had no duty to retreat in such a circumstance. See
Claim # 9, infra. Because the common law self-defense doctrine itself permitted
petitioner to stand his ground in one of these scenarios, See Riddle, 467 Mich. at
119, petitioner was not prejudiced by counsel’s decision to forego the provisions
of the Self-Defense Act and instead assert petitioner’s self-defense argument at
common law. Petitioner is not entitled to relief on his third claim.
In his fourth claim, petitioner claims that trial counsel was ineffective for
failing to call Veda Mauldin as a defense witness to support his self-defense
On the third day of trial, outside the presence of the jury, petitioner’s
defense attorney informed the judge he had a witness, Ms. Veda Mauldin, who
had been interviewed but was reluctant to testify after being threatened with
perjury and having her children taken away from her. (Tr. 4/1/2010, pp. 151–52).
Defense counsel indicated he was already having trouble with Ms. Mauldin
appearing to testify and he asked the court to admonish “them.” (Id.). Mauldin
testified outside the jury’s presence. Mauldin acknowledged she had spoken
with defense counsel and had been hesitant to testify. Mauldin said she had
been interviewed and the word perjury had been mentioned. (Id., p. 154).
Mauldin testified that she had received threatening phone calls from unknown
callers about her children being taken away, although she did not know who the
caller was. (Id., pp. 155–56). Mauldin felt the Investigator Simon was accusing
her of lying about what she saw. The judge asked Ms. Mauldin if she would
testify and she replied “yes.” Defense counsel asked the judge if he would
consider allowing Maudlin to testify with the courtroom closed. The judge denied
the request but said he would revisit the issue on Monday. (Id. at 158-61). When
trial resumed the following week, Ms. Mauldin was not called as a witness.
The judge rejected petitioner’s claim on post-conviction review:
Defendant contends that Mauldin would have testified that she stood
approximately five feet from Defendant when she allegedly saw
Morgan behave aggressively toward Defendant and that Morgan
appeared to reach for a weapon. Defendant has not demonstrated
how the outcome of the case would have been different had his
counsel presented Mauldin as a witness when a similar statement was
made by another witness and when numerous other witnesses gave
testimony about the events surrounding the shooting. As explained
above, the decision of whether or not to present a particular witness
is a matter of trial strategy. Further, the failure to investigate and
present a particular witness cannot be considered ineffective
assistance of counsel unless Defendant can show that the failure to
present the witness deprived him of a defense. Because the issue of
self-defense was given to the jury for consideration, Defendant was
not deprived of asserting self-defense as justification for the killing.
Thus, counsel’s decision not to present Veda Mauldin as witness was
a matter of trial strategy and cannot be considered ineffective
People v. Williams, No. 09-031564-01-FC, Slip. Op. at * 6 (internal citation
Petitioner is not entitled to relief for two reasons.
First, petitioner failed to attach any affidavit from Ms. Mauldin to his postconviction pleadings in the state trial and appellate courts, nor has he provided
this Court with any affidavit from Ms. Mauldin concerning her proposed
testimony and willingness to testify on the petitioner’s behalf. Conclusory
allegations of ineffective assistance of counsel, without any evidentiary support,
do not provide a basis for habeas relief. See Workman v. Bell, 178 F.3d 759,
771 (6th Cir. 1998). By failing to present any evidence to the state courts in
support of his ineffective assistance of claim, petitioner is not entitled to an
evidentiary hearing on his ineffective assistance of counsel claim with this Court.
See Cooey v. Coyle, 289 F. 3d 882, 893 (6th Cir. 2002)(citing 28 U.S.C. §
2254(e)(2)(A)(ii)). Petitioner has offered, neither to the Michigan courts nor to
this Court, any evidence beyond his own assertions as to whether Ms. Mauldin
would have been able to testify and what her testimony would have been. In the
absence of such proof, petitioner is unable to establish that he was prejudiced by
counsel’s failure to call Ms. Mauldin to testify at trial, so as to support the second
prong of an ineffective assistance of counsel claim. See Clark v. Waller, 490 F.
3d 551, 557 (6th Cir. 2007).
Secondly, petitioner’s counsel called Ms. Tiffany Pritchett and petitioner to
testify in support of petitioner’s claim of self-defense. The alleged
ineffectiveness of counsel in failing to call Ms. Mauldin to testify in support of
petitioner’s self-defense claim was not prejudicial where her testimony would
have been merely cumulative to testimony by petitioner and Ms. Pritchett that he
had shot Mr. Morgan in self-defense. See Johnson v. Hofbauer, 159 F. Supp. 2d
582, 607 (E.D. Mich. 2001). Petitioner is not entitled to relief on his fourth claim.
D. Claims # 5, # 6, # 8, and # 10. The sufficiency of evidence claims.
The Court consolidates petitioner’s four related sufficiency of evidence
In his fifth claim, petitioner contends that the prosecutor failed to disprove
that he shot the victim in self-defense.
Petitioner’s claim is non-cognizable on habeas review. Under Michigan
law, self-defense is an affirmative defense. See People v. Dupree, 486 Mich.
693, 704, 712, 788 N.W. 2d 399 (2010). “An affirmative defense, like
self-defense, ‘admits the crime but seeks to excuse or justify its commission. It
does not negate specific elements of the crime.’” People v. Reese, 491 Mich.
127, 155, n. 76, 815 N.W.2d 85 (2012)(quoting Dupree, 486 Mich. at 704, n. 11).
Although under Michigan law the prosecutor is required to disprove a claim of
self-defense or defense of others, See People v. Watts, 61 Mich. App. 309, 311,
232 N.W.2d 396, 398 (1975), “[p]roof of the nonexistence of all affirmative
defenses has never been constitutionally required....” See Smith v. United
States,133 S. Ct. 714, 719 (2013)(quoting Patterson v. New York, 432 U.S. 197,
210 (1977)). The Supreme Court and the Court of Appeals for the Sixth Circuit
have rejected the argument that the Constitution requires the prosecution to
disprove self-defense beyond a reasonable doubt. See Gilmore v. Taylor, 508
U.S. 333, 359 (1993)(Blackmun, J., dissenting)(“In those States in which
self-defense is an affirmative defense to murder, the Constitution does not
require that the prosecution disprove self-defense beyond a reasonable doubt”);
Martin v. Ohio, 480 U.S. 228, 233-36 (1987); see also Allen v. Redman, 858 F.
2d 1194, 1197 (6th Cir.1988)(explaining that habeas review of
sufficiency-of-the-evidence claims is limited to elements of the crimes as defined
by state law and citing Engle v. Isaac, 456 U.S. 107 (1982), and Duffy v. Foltz,
804 F.2d 50 (6th Cir. 1986)). Therefore, “the due process ‘sufficient evidence’
guarantee does not implicate affirmative defenses, because proof supportive of
an affirmative defense cannot detract from proof beyond a reasonable doubt that
the accused had committed the requisite elements of the crime.” Caldwell v.
Russell, 181 F.3d 731, 740 (6th Cir. 1999). Petitioner’s claim that the prosecutor
failed to disprove his affirmative defense is non-cognizable on habeas review.
Id.; Allen v. Redman, 858 F. 2d at 1200.
Moreover, even if this Court were to determine that petitioner’s claim was
cognizable, he would not be entitled to habeas relief.
It is beyond question that “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). But the critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction is, “whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, 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. Id. at 318-19 (internal citation and footnote
omitted)(emphasis in the original).
More importantly, a federal habeas court may not overturn a state court
decision that rejects a sufficiency of the evidence claim simply because the
federal court disagrees with the state court’s resolution of that claim. Instead, a
federal court may grant habeas relief only if the state court decision was an
objectively unreasonable application of the Jackson standard. See Cavazos v.
Smith, 565 U.S. 1, 2 (2011). “Because rational people can sometimes disagree,
the inevitable consequence of this settled law is that judges will sometimes
encounter convictions that they believe to be mistaken, but that they must
nonetheless uphold.” Id. Indeed, for a federal habeas court reviewing a state
court conviction, “the only question under Jackson is whether that finding was so
insupportable as to fall below the threshold of bare rationality.” Coleman v.
Johnson, 132 S. Ct. 2060, 2065 (2012).
Finally, on habeas review, a federal court does not reweigh the evidence
or redetermine the credibility of the witnesses whose demeanor was observed at
trial. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the
factfinder to weigh the probative value of the evidence and resolve any conflicts
in testimony. Neal v. Morris, 972 F. 2d 675, 679 (6th Cir. 1992). A habeas court
therefore must defer to the fact finder for its assessment of the credibility of
witnesses. Matthews v. Abramajtys, 319 F. 3d 780, 788 (6th Cir. 2003).
Under Michigan law, one acts lawfully in self-defense if he or she honestly
and reasonably believes that he is in danger of serious bodily harm or death, as
judged by the circumstances as they appeared to the defendant at the time of
the act. Blanton v. Elo, 186 F.3d 712, 713, n. 1 (6th Cir. 1999)(citing People v.
Heflin, 434 Mich. 482, 456 N.W. 2d 10 (1990)). To be lawful self-defense, the
evidence must show that: (1) the defendant honestly and reasonably believed
that he was in danger; (2) the danger feared was death or serious bodily harm or
imminent forcible sexual penetration; (3) the action taken appeared at the time to
be immediately necessary; and (4) the defendant was not the initial aggressor.
See Johnigan v. Elo, 207 F. Supp. 2d 599, 608-09 (E.D. Mich. 2002)(citing
People v. Barker, 437 Mich. 161, 165; 468 N.W. 2d 492 (1991); People v. Kemp,
202 Mich. App. 318, 322, 508 N.W.2d 184 (1993); People v. Deason, 148 Mich.
App. 27, 31, 384 N.W.2d 72 (1985)). Under Michigan law, a defendant is not
entitled to use any more force than is necessary to defend himself. Johnigan,
207 F. Supp. 2d at 609 (citing Kemp, 202 Mich. App. at 322). “[T]he law of
self-defense is based on necessity, and a killing or use of potentially lethal force
will be condoned only when the killing or use of potentially lethal force was the
only escape from death, serious bodily harm, or imminent forcible sexual
penetration under the circumstances.” Johnigan, 207 F. Supp. 2d at 609 (internal
Although there was, to be certain, evidence presented that supported
petitioner’s claim of self-defense, the prosecution also presented evidence from
which a rational trier of fact could have concluded beyond a reasonable doubt
that the prosecutor had rebutted petitioner’s self-defense claim. Kenief Lynch
testified that petitioner and Mr. Morgan got into an argument earlier in the night.
Petitioner attacked Mr. Morgan and threw two punches. Club members
separated the two men. Mr. Morgan asked Lynch to take his gun because he
did not want to kill petitioner. Lynch took the gun and gave it to the club
president. Mr. Morgan remained upset and kept lifting his shirt up and yelling
that he did not have a gun. Petitioner refused a club member’s request to
relinquish his gun. Petitioner also refused Lynch’s request to give up his gun.
Mr. Lynch testified that petitioner began moving toward Mr. Morgan and reached
to his waist, pulled out his gun and shot the victim. Lynch attempted to grab
petitioner’s hand but he pulled away and shot Mr. Morgan. (Tr. 3/31/10, pp. 14043, 145-51, 156-60, Tr. 4/1/10, p. 7).
Clothilda Jones was a member of the motorcycle club. Ms. Jones heard a
commotion and came out to see petitioner and Mr. Morgan arguing. Petitioner
yelled to Mr. Morgan to pull his gun at which point Ms. Jones informed petitioner
that Mr. Morgan did not have a gun. About an hour later petitioner was glaring at
Mr. Morgan, who lifted his shirt to show petitioner he did not have a gun. Mr.
Morgan had given his gun to Jones’ boyfriend, Franciso Calderin. An hour later
Jones heard a shot but she did not see the shooting. (Tr. 3/31/10, pp. 19, 29-35,
Franscico Calderin testified to hearing Mr. Morgan state he did not have a
gun before hearing a gunshot. Mr. Morgan told Calderin that petitioner had shot
him. (Tr. 3/31/2010, pp. 84–87, 91).
A federal court reviewing a state court conviction on habeas review that is
“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 resolution.” Cavazos v. Smith, 565 at 7 (quoting Jackson v. Virginia, 443
U.S. at 326). Although there was evidence to support petitioner’s self-defense
claim and petitioner has given interpretations to the evidence that differ from the
state court’s interpretation of the evidence, “in light of the deference to be
accorded to state-court factfinding under § 2254(e), as well as the traditional
deference accorded to the jury’s resolution of disputed factual issues,” petitioner
is unable to show that the state trial court, in rejecting petitioner’s claim on postconviction review, unreasonably determined that the prosecutor disproved
petitioner’s self-defense claim. See Seymour v. Walker, 224 F.3d 542, 552 (6th
Cir. 2000). Because the jury essentially chose to reject petitioner’s testimony
that he acted in self-defense, which is a credibility determination that this Court
must defer to, petitioner is not entitled to habeas relief on his sufficiency of
evidence claim. See Johnson v. Hofbauer, 159 F. Supp. 2d at 597-98.
In his sixth claim, petitioner contends that there was insufficient evidence
to establish the elements of second-degree murder.
Under Michigan law, the elements of second-degree murder are: (1) a
death, (2) caused by an act of the defendant, (3) with malice, and (4) without
justification or excuse. See Stewart v. Wolfenbarger, 595 F. 3d 647, 654 (6th Cir.
2010)(citing People v. Goecke, 457 Mich. 442 463-64, 579 N.W.2d 868 (1998)).
“[M]alice is defined as the intent to kill, the intent to cause great bodily harm, or
the intent to do an act in wanton and wilful disregard of the likelihood that the
natural tendency of such behavior is to cause death or great bodily harm.” Id.
(citing People v. Aaron, 409 Mich. 672, 728, 299 N.W.2d 304 (1980)).
Additionally, “[t]he offense of second-degree murder ‘does not require an actual
intent to harm or kill, but only the intent to do an act that is in obvious disregard
of life-endangering consequences.’” Stewart, 595 F. 3d at 658 (quoting People v.
Aldrich, 246 Mich.App. 101, 123, 631 N.W.2d 67 (2001)).
The evidence established that petitioner shot the victim in the abdomen,
causing his death. This evidence, if believed, would be sufficient to establish the
elements of second-degree murder.
In his eighth claim, petitioner contends that the verdict went against the
great weight of the evidence.
A federal habeas court has no power to grant habeas relief on the ground
that a state conviction is against the great weight of the evidence. Cukaj v.
Warren, 305 F. Supp. 2d 789, 796 (E.D. Mich. 2004); Dell v. Straub, 194 F.
Supp. 2d 629, 648 (E.D. Mich. 2002); See also Nash v. Eberlin, 258 F. App’x.
761, 764, n. 4 (6th Cir. 2007)(“a manifest-weight-of-the-evidence argument is a
state-law argument”); Artis v. Collins, 14 F. App’x. 387 (6th Cir. 2001)(declining
to grant certificate of appealability to habeas petitioner on claim that jury’s verdict
was against the manifest weight of the evidence). A claim that a verdict went
against the great weight of the evidence is not of constitutional dimension, for
habeas corpus purposes, unless the record is so devoid of evidentiary support
that a due process issue is raised. Cukaj, 305 F. Supp. 2d at 796; See also
Crenshaw v. Renico, 261 F. Supp. 2d 826, 834 (E.D. Mich. 2003). The test for
habeas relief is not whether the verdict was against the great weight of the
evidence, but whether there was any evidence to support it. Dell, 194 F. Supp.
2d at 648. As long as there is sufficient evidence to convict petitioner of these
crimes, the fact that the verdict may have gone against the great weight of the
evidence would not entitle him to habeas relief. Id.
In his tenth claim, petitioner argues that the trial court erred in failing to
direct a verdict of acquittal on the original first-degree premeditated murder
charge, because there was insufficient evidence of premeditation and
deliberation to submit the charge to the jury.
Petitioner was convicted of the lesser included offense of second-degree
“[C]learly established Supreme Court law provides that a defendant has a
right not to be convicted except upon proof of every element of a crime beyond a
reasonable doubt; the Supreme Court has never held that the submission of a
charge, upon which there is insufficient evidence, violates a defendant's
constitutional rights where the defendant is acquitted of that charge.” Long v.
Stovall, 450 F. Supp. 2d 746, 752 (E.D. Mich. 2006)(quoting Skrzycki v. Lafler,
347 F. Supp. 2d 448, 453 (E.D. Mich. 2004)(emphasis original); See also Aldrich
v. Bock, 327 F. Supp. 2d 743, 761-62 (E.D. Mich. 2004). A number of cases
have held that the submission to a jury of a criminal charge constitutes harmless
error where the habeas petitioner is acquitted of that charge. Daniels v. Burke,
83 F. 3d 760, 765, fn. 4 (6th Cir. 1996); Long, 450 F. Supp. 2d at 752; Aldrich,
327 F. Supp. 2d at 761; Johnson v. Hofbauer, 159 F. Supp. 2d at 596; But see
Williams v. Jones, 231 F. Supp. 2d 586, 593-94 (E.D.Mich. 2002)(finding this
claim cognizable). In light of the fact that petitioner was acquitted of the firstdegree premeditated murder charge and only found guilty of the lesser included
offense of second-degree murder, any error in submitting the first-degree
premeditated murder charge to the jury would not entitle petitioner to habeas
relief. See King v. Trippett, 27 F. App’x. 506, 510 (6th Cir. 2001).
E. Claim # 7. The perjury claim.
Petitioner claims that Ms. Jones committed perjury during defense
counsel’s cross-examination of her. When Ms. Jones was asked by defense
counsel why she did not tell the police that she had witnessed the fight between
petitioner and Morgan, Jones stated:
I don’t think I had to tell the police anything. He shot the man and
the man is dead. I thought it was an open and shut case.
(Tr. 3/31/10, p. 48).
The deliberate deception of a court and jurors by the presentation of
known and false evidence is incompatible with the rudimentary demands of
justice. Giglio v. United States, 405 U.S. 150, 153 (1972). There is also a denial
of due process when the prosecutor allows false evidence or testimony to go
uncorrected. Napue v. Illinois, 360 U.S. 264, 269 (1959)(internal citations
omitted). To prevail on a claim that a conviction was obtained by evidence that
the government knew or should have known to be false, a defendant must show
that the statements were actually false, that the statements were material, and
that the prosecutor knew they were false. Coe v. Bell, 161 F. 3d 320, 343 (6th
Cir. 1998). However, a habeas petitioner must show that a witness’ statement
was “indisputably false,” rather than misleading, to establish a claim of
prosecutorial misconduct or a denial of due process based on the knowing use
of false or perjured testimony. Byrd v. Collins, 209 F. 3d 486, 517-18 (6th Cir.
Ms. Jones did not testify falsely about material facts. Instead, the witness
was asked why she did not call the police after witnessing the shooting and she
replied that she believed that she did not need to do so because this was “an
open and shut case.” “An allegation of perjury as to a ‘matter of perception’ fails
absent ‘conclusive proof’ that the witness testified falsely as to his belief.” U.S. v.
Robinson-Gordon, 418 F. App’x. 173, 177 (4th Cir. 2011)(citing United States v.
Derrick, 163 F. 3d 799, 828 (4th Cir. 1998)). Petitioner is not entitled to habeas
relief on his claim because he has presented no evidence that Ms. Jones
testified falsely concerning her subjective belief that she did not need to speak
with the police, nor has he shown any evidence that the prosecutor would have
known that Ms. Jones was testifying falsely about her subjective belief on this
subject. Id. Conclusory allegations of perjury in a habeas corpus petition must
be corroborated by some factual evidence. Barnett v. United States, 439 F.2d
801, 802 (6th Cir.1971). Petitioner is not entitled to relief on his seventh claim.
F. Claim # 9. The jury instruction claim.
Petitioner next claims that his right to a fair trial was violated when the trial
court instructed the jury to consider whether petitioner could have safely
retreated prior to using deadly force.
The judge gave the jurors the following instruction:
A person can use deadly force in self-defense, only when it is
necessary to do so. If the defendant could have safely retreated but
did not do so, you may consider that fact in deciding whether the
defendant honestly and reasonably believed he needed to use deadly
force in self defense. However, a person is never required to retreat
from a sudden fierce and violent attack, nor is he required to retreat
from an attacker he reasonably believes is about to use a deadly
(Tr. 4/7/10, p. 106).
The burden of demonstrating that an erroneous instruction was so
prejudicial that it will support a collateral attack upon the constitutional validity of
a state court conviction is even greater than the showing required in a direct
appeal. The question in such a collateral proceeding is whether the ailing
instruction so infected the entire trial that the resulting conviction violates due
process, not merely whether the instruction is undesirable, erroneous, or even
“universally condemned,” and an omission or incomplete instruction is less likely
to be prejudicial than a misstatement of the law. Henderson v. Kibbee, 431 U.S.
145, 154-155 (1977). The challenged instruction must not be judged in isolation
but must be considered in the context of the entire jury charge. Jones v. United
States, 527 U.S. 373, 391 (1999). Further, any ambiguity, inconsistency or
deficiency in a jury instruction does not by itself necessarily constitute a due
process violation. Waddington v. Sarausad, 555 U.S. 179, 190 (2009). It is not
enough that there might be some “slight possibility” that the jury misapplied the
instruction. Id. at 191.
In the present case, the state judge, in denying petitioner’s claim on postconviction review, concluded that the instruction about the duty to retreat
accurately reflected Michigan law concerning the duty to retreat. People v.
Williams, No. 09-031564-01-FC, Slip. Op. at * 13-15. Federal courts are bound
by the state courts’ interpretation of their own laws. See Mullaney v. Wilbur, 421
U.S. 684, 690-91 (1975). The nature of a particular jury instruction that is given
is a matter of state law, and a federal court is not at liberty to grant a writ of
habeas corpus simply because the federal court finds the state court’s decision
was incorrect under state law. Newton v. Million, 349 F.3d 873, 879 (6th Cir.
2003). Because the judge found that it was proper under Michigan law to have
instructed the jurors on the duty to retreat, this Court must defer to that
determination and cannot question it. See Seymour v. Walker, 224 F. 3d at 558.
More importantly, when viewed in its entirety, the instruction as given, did
not impose a duty to retreat upon the defendant if the jury determined that he
was the victim of a sudden, violent attack, as petitioner suggests. In fact, the
instruction did just the opposite, namely, it advised the jurors that petitioner did
not have a duty to retreat if he was the victim of a sudden, violent attack.
Because the judge’s instruction regarding the applicability of the duty to retreat
was consistent with the law of self-defense in Michigan, the judge did not deny
petitioner the due process of law by so instructing the jury. See Johanson v.
Pung, 795 F. 2d 48, 49 (8th Cir. 1986).
G. Claim # 11. The ineffective assistance of appellate counsel claim.
Petitioner claims that appellate counsel was ineffective for failing to raise
his third through tenth and twelfth claims on his appeal of right.
Petitioner’s third through tenth and his twelfth claims are without merit.
“[A]ppellate counsel cannot be found to be ineffective for ‘failure to raise an issue
that lacks merit.’” Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir.
2010)(quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Because
none of these claims can be shown to be meritorious, appellate counsel was not
ineffective in his handling of petitioner’s direct appeal.
H. Claim # 12. The cumulative errors claim.
Petitioner lastly alleges that he is entitled to habeas relief because of
cumulative error. The Sixth Circuit has noted that the United States Supreme
Court “has not held that distinct constitutional claims can be cumulated to grant
habeas relief.” Lorraine v. Coyle, 291 F. 3d 416, 447 (6th Cir. 2002). Therefore,
petitioner is not entitled to habeas relief on his cumulative errors claim. Id.; See
also Dorchy v. Jones, 320 F. Supp. 2d 564, 581 (E.D. Mich. 2004); aff’d 398 F.
3d 783 (6th Cir. 2005).
I. A certificate of appealability.
A habeas petitioner must receive a certificate of appealability (“COA”) in
order to appeal the denial of a habeas petition for relief from either a state or
federal conviction. 2 28 U.S.C. §§ 2253(c)(1)(A), (B). A court may issue a COA
“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 federal district court rejects
a habeas claim on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the district court's
assessment of the constitutional claim debatable or wrong. See Slack v.
Effective December 1, 2009, the newly created Rule 11 of the Rules
Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll.
§ 2254, provides that “[t]he district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rule 11(a), 28
U.S.C. foll. § 2254.
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). In applying this standard, a district court may not conduct a full
merits review, but must limit its examination to a threshold inquiry into the
underlying merit of the petitioner's claims. Id. at 336-37.
The Court will deny a certificate of appealability, because jurists of reason
would not find the Court’s resolution of the claims to be debatable.
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP)
is a lower standard than the standard for certificates of appealability. See Foster
v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v.
Youngblood, 116 F. 3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of
the denial of a constitutional right, a court may grant IFP status if it finds that an
appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
R.App.24 (a). “Good faith” requires a showing that the issues raised are not
frivolous; it does not require a showing of probable success on the merits.
Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not debate this
Court’s resolution of petitioner’s claims, the issues are not frivolous; therefore,
an appeal could be taken in good faith and petitioner may proceed in forma
pauperis on appeal. Id.
For the reasons stated above, this Court concludes that Petitioner
Williams is not entitled to federal-habeas relief on the claims presented in his
IT IS ORDERED:
(1) The petition for writ of habeas corpus is DENIED WITH PREJUDICE.
(Dkt. # 1).
(2) A certificate of appealability is DENIED.
(3) Petitioner is granted leave to appeal in forma pauperis.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: April 26, 2017
I hereby certify that a copy of the foregoing document was served upon
parties/counsel of record on April 28, 2017, by electronic and/or ordinary mail.
S/Catherine A. Pickles
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