White v. Woods

Filing 11

OPINION and ORDER denying 1 Petition for Writ of Habeas Corpus, denying Certificate of Appealability, and denying permission to appeal in forma pauperis. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIAN WHITE,
Petitioner,

Case No. 2:16-cv-12910
Hon. George Caram Steeh

v.
JEFFREY WOODS,
Respondent.
________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING CERTIFICATE OF APPEALABILITY,
AND (3) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. §
2254. Petitioner Brian White was convicted after a jury trial in the Wayne
Circuit Court of two counts of first-degree murder, MICH. COMP. LAWS §
750.316(1)(a), three counts of assault with intent to commit murder, MICH.
COMP. LAWS § 750.83, felon in possession of a firearm, MICH. COMP. LAWS §
750.224f, and possession of a firearm during the commission of a felony,
MICH. COMP. LAWS § 750.227b. Petitioner was sentenced to a controlling
term of life imprisonment without possibility of parole for the murder
convictions and lesser terms for the other offenses.
The petition raises five claims: (1) Petitioner’s double jeopardy rights
were violated when the misconduct of the prosecutor caused his first trial to
-1-

end in a mistrial, (2) Petitioner’s counsel was ineffective for failing to
present an audio recording of a prosecution witness’s recanting statement,
(3) Petitioner’s counsel was ineffective for failing to more thoroughly cross
examine prosecution witness Jessica Cooper, (4) the prosecutor committed
misconduct by arguing facts not in evidence, and (5) Petitioner’s counsel
was ineffective for failing to call an expert witness on identification
testimony and failing to explore other defenses prior to his second trial.
The Court finds that Petitioner’s claims are without merit. Therefore,
the petition will be denied. The Court will also deny a certificate of
appealability, and deny permission to proceed on appeal in forma pauperis.
I. Background
Petitioner and his co-defendant, Jonathan May, were tried twice in
relation to the shooting of five persons resulting the death of two of the
victims. In September 2013, the defendants’ first joint trial ended in a
mistrial. In January 2014, Petitioner was retried separately and convicted of
the charged offenses.
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 Cir. 2009):
-2-

Defendant’s convictions arise from the February 2012 shooting
deaths of Ernest Bryant and Brinda Long, and the nonfatal
shooting assaults of Eric Bowler, Quintus Parham, and Donte
Laird. All five victims had been riding around in a van and had
stopped at Parham’s house. Just after Parham got out of the
van, three men approached the vehicle and began firing shots.
The prosecution relied principally on the identification testimony
of Eric Bowler to link defendants to the crime. Bowler, who
knew both defendants from the neighborhood, gave a
statement to the police identifying defendants as the shooters
shortly after the shooting. In March 2013, however, Bowler
gave a statement to a defense investigator in which he denied
knowing the shooters. Shortly after giving that statement,
Bowler notified the police, and later similarly testified at trial,
that he was forced at gunpoint to go to defendant May’s
attorney’s office and was coerced into giving a false statement
denying that he knew the shooters. Bowler reaffirmed to the
police, and at trial, that defendants May and White were the
shooters. The defense theory at trial was that the identification
testimony was not credible.
*

*

*

The prosecution’s theory at trial was that there was a history of
problems between defendant White and victim Parham,
including a prior incident in August 2011 when Parham shot up
a van occupied by White’s then girlfriend, Pamela Cooper. Less
than a week before the instant offenses were committed,
Parham pleaded no contest to assault charges in Cooper’s
case pursuant to a plea agreement that included a sentence of
3 to 10 years.
People v. White, No. 320696, 2015 WL 6161448, *1, 5 (Mich. Ct. App. Oct.
20, 2015).
Following his conviction and sentence Petitioner filed a claim of
appeal in the Michigan Court of Appeals. His brief on appeal filed by
-3-

appellate counsel raised what now form Petitioner’s first and second
habeas claims. Petitioner also filed a supplemental pro se brief that raised
what now form his remaining claims.
The Michigan Court of Appeals affirmed Petitioner’s convictions in an
unpublished opinion. Id. Petitioner subsequently filed an application for
leave to appeal in the Michigan Supreme Court, raising the same five
claims he presented to the Michigan Court of Appeals. The Michigan
Supreme Court denied the application because it was “not persuaded that
the questions presented should be reviewed.” People v. White, 877 N.W.2d
887 (Mich. May 2, 2016) (Table).
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of
review for habeas cases:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
-4-

(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
A state court adjudication is “contrary to” Supreme Court precedent
under § 2254(d)(1) “if the state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases” or “if the state court
confronts a set of facts that are materially indistinguishable from a decision
[of the Supreme Court] and nevertheless arrives at a [different result].”
Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (internal quotation marks
omitted).
Under the “unreasonable application” clause of § 2254(d)(1),
even clear error will not suffice. Rather, as a condition for
obtaining habeas corpus from a federal court, a state prisoner
must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.
White v. Woodall, ___ U.S. ___, 134 S. Ct. 1697, 1702, 188 L. Ed. 2d 698
(2014) (citations, quotation marks, and alterations omitted).
“When reviewing state criminal convictions on collateral review,
federal judges are required to afford state courts due respect by
overturning their decisions only when there could be no reasonable dispute
-5-

that they were wrong.” Woods v. Donald, ___ U.S. ___, 135 S. Ct. 1372,
1376, 191 L. Ed. 2d 464 (2015). “Federal habeas review thus exists as ‘a
guard against extreme malfunctions in the state criminal justice systems,
not a substitute for ordinary error correction through appeal.’” Id. (quoting
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). “[W]hether the trial
judge was right or wrong is not the pertinent question under AEDPA.”
Renico v. Lett, 559 U.S. 766, 778 n.3 (2010). The question is whether the
state court’s application of federal law was “objectively unreasonable.”
White, 134 S. Ct. at 1702. In short, the standard for obtaining federal
habeas relief is “difficult to meet . . . because it was meant to be.” Burt v.
Titlow, ___ U.S. ___, 134 S. Ct. 10, 16, 187 L. Ed. 2d 348 (2013)(internal
quotation marks omitted).
III. Analysis
A. Double Jeopardy
Petitioner’s first claim asserts that his second trial was barred by the
Double Jeopardy Clause of the Fifth Amendment because the misconduct
of the prosecutor caused his first trial to end in a mistrial.
The Double Jeopardy Clause, which is “applicable to the States
through the Fourteenth Amendment,” Lockhart v. Nelson, 488 U.S. 33, 38
(1988), states that “[n]o person shall be . . . subject for the same offence to
-6-

be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. The
Amendment, however, does not preclude a court from “retrying a defendant
whose conviction is set aside because of an error in the proceedings
leading to conviction.” United States v. Tateo, 377 U.S. 463, 465 (1964).
An exception to the rule permitting a retrial applies where governmental
action is intended to provoke a mistrial request and thereby subject the
defendant to the burden imposed by multiple prosecutions. United States v.
Dinitz, 424 U.S. 600, 611 (1976). In other words, “the circumstances under
which . . . a defendant may invoke the bar of double jeopardy in a second
effort to try him are limited to those cases in which the conduct giving rise
to the successful motion for a mistrial was intended to provoke the
defendant into moving for a mistrial.” Oregon v. Kennedy, 456 U.S. 667,
679 (1982).
The Michigan Court of Appeals described the circumstances which
resulted in the mistrial as follows:
In September 2013, a joint trial before a single jury began. At
that time, defendant May was represented by attorney David
Cripps. During opening statement, the prosecutor recounted
how Bowler implicated both defendants in the shooting when he
spoke to the police two days after the crime and when he
testified at the preliminary examinations. The prosecutor then
added:

-7-

After he testifies at the preliminary exams, Eric
Bowler is abducted, taken off the streets, whatever,
at gunpoint by two men he does not know. Taken
down to the Defendant’s, Jonathan May’s attorney’s
office, Mr. Cripps, where he’s forced to give a
statement saying nothing happened basically or
changing his statement.
After he does that, he contacts Sergeant Ford, lets
Sergeant Ford know what’s going on, and that he
had been taken off the streets and forced to make a
different statement.
After all parties gave their opening statements, defendant White
moved for a mistrial on the ground that the prosecutor’s
comments about Bowler being kidnapped and taken to attorney
Cripps’s office placed Cripps in a position of having to respond
to those claims, but he could not appear as a witness at
defendant May’s trial. Defendant May joined in the mistrial
motion. The trial court ruled that defendant May’s ability to
receive a fair trial was jeopardized by the prosecutor’s opening
statement, which established a likelihood that it would be
necessary to call Cripps, his attorney, as a witness.
Accordingly, with the concurrence of both defendants, the court
granted the motion for a mistrial.
White, 2015 WL 6161448, *1.
After reciting the applicable constitutional standard, and correctly
noting that a retrial is barred by the Double Jeopardy Clause only upon
showing that the prosecutor deliberately induced the motion for a mistrial,
the Michigan Court of Appeals rejected the on the merits:
Both defendants expressly stated on the record that they
concurred in the request for a mistrial based on manifest
necessity. The record does not support their contention that the
-8-

prosecutor engaged in intentional conduct designed to goad
them into moving for a mistrial. The prosecutor opposed the
motion for a mistrial. Neither defendant challenged the
prosecutor’s entitlement to introduce evidence surrounding the
circumstances of Bowler’s statement to the defense
investigator. Indeed, that evidence was admitted at defendants’
second trial and neither defendant challenged its admissibility.
At most, it appears that the prosecutor was negligent for failing
to raise the issue before trial in order to resolve whether
attorney Cripps would need to be called as a witness to refute
the prosecution’s evidence, and whether that situation would
require that he be removed as defendant May’s counsel. The
fact that the prosecutor was not intending to goad defendants
into moving for a mistrial is supported not only by the
prosecutor’s opposition to the motion, but also by the fact that it
was the trial court, not the defense attorneys, who apparently
first indicated that there might be a problem with the proposed
testimony from Bowler if attorney Cripps continued to represent
defendant May. On this record, there is no basis for concluding
that defendants’ retrial was barred by double jeopardy.
Id., at *2-3.
This decision did not constitute an unreasonable application of the
clearly established Supreme Court standard. This is not a case where a
trial was going poorly for the prosecution so it sought to scuttle it through
deliberate misconduct resulting in a mistrial motion. Rather, the incident
occurred at the very start of the case during opening statements. When
Petitioner’s counsel moved for the mistrial, the prosecutor opposed the
motion and expressed a desire to proceed. Dkt. 9-11, at 22. There is simply
no basis in the record for concluding that the prosecutor engaged in
-9-

conduct intended to provoke Petitioner into moving for a mistrial. The
prosecutor stated in opening that it would attempt to rehabilitate Bowler’s
credibility with testimony that he was forced at gunpoint to recant his
statement to police that Petitioner was one of the shooters at codefendant’s attorney’s office. The fact the location of the statement put codefendant’s counsel in a precarious position arose from the circumstances
of the incident and was not a factor that fell within the prosecutor’s control.
Because the state court reasonably adjudicated this claim, Petitioner has
failed to demonstrate entitlement to relief.
B. Prosecutorial Misconduct
Petitioner claims that the prosecutor committed misconduct during
closing argument by asserting facts not in evidence. Petitioner’s related
claim that his trial counsel was ineffective for failing to object to the
comments will be discussed below with Petitioner’s other claims of
ineffective assistance of counsel.
The clearly established federal law relevant to the Court's review of a
prosecutorial misconduct claim is Darden v. Wainwright, 477 U.S. 168
(1986). Parker v. Matthews, 567 U.S. 37, 44 (2012). In Darden, the
Supreme Court held that a “prosecutor’s improper comments will be held to
violate the Constitution only if they so infected the trial with unfairness as to
-10-

make the resulting conviction a denial of due process.” 477 U.S. at 181
(internal quotation marks omitted). The Court must ask whether the
Michigan Court of Appeal’s decision denying petitioner’s 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, 132 S. Ct. at 2155 (quoting
Harrington, 562 U.S. at 103).
Petitioner complains that the prosecutor improperly told the jury
during summation that Petitioner and his accomplices “came to that
location, they came to the location with guns, they came to the location with
guns that were loaded. They surrounded the vehicle. And without much
discussion, they shot into the van. So they had to have planned this before
they got there. This was not something that was done on the spur of the
moment. They were lying in wait.” Dkt. 9-21, at 96. He also complains
about the prosecutor’s comment that Cooper “. . . testifies that she didn’t
want anything to do with the case because they wanted to take care of it on
the streets.” Id., at 153. Petitioner argues that neither of these statements
were supported by the evidence presented at trial.
Prosecutors must refrain from interjecting their personal beliefs into
the presentation of their cases. United States v. Young, 470 U.S. 1, 8-9
-11-

(1985). “Misrepresenting facts in evidence can amount to substantial error,”
Washington v. Hofbauer, 228 F.3d 689, 700 (6th Cir. 2000). Prosecutors
may, however, argue all reasonable inferences from the evidence
presented at trial. Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000).
Petitioner’s claim is without merit, because contrary to his assertion,
the complained-of statements by the prosecutor were supported by
reasonable inferences based on the evidence presented at trial. The
evidence at trial indicated that when Parham returned home and exited his
vehicle, the defendants got out of a van and immediately started shooting
in tandem. A reasonable inference can be made based on this evidence
that the assailants had planned in advance to wait for Parham to arrive at
his home so they could murder him. The argument was supported by the
evidence of the circumstances of the shooting, and the rejection of the
claim by the Michigan Court of Appeals was reasonable.
With respect to the prosecutor’s comment on rebuttal, it is true that
Cooper never made a statement that the defendants committed the crimes
in retaliation for Parham shooting at her vehicle, or that they were going to
handle the matter “on the streets” instead of relying on the police.
Nevertheless, Cooper did admit during her testimony that she was reluctant
to cooperate with the authorities in both prosecutions. Furthermore, the
-12-

circumstances of the shooting suggest that this was a case of “street
justice” in that it occurred a few days after Parham had plead guilty but
before his sentencing hearing. One fair reading of the complained-of
passage is that the prosecutor was first referring to Cooper’s testimony that
she did not want to be involved in the cases, and second, that though
Cooper did not say so directly, the circumstances of the case suggested
that the motive for the shooting was retaliation for the prior incident. Even if
the inference was a bit of a stretch, it was not so flagrant or prejudicial so
as to render Petitioner’s entire trial fundamentally unfair. It was not
unreasonable for the Michigan Court of Appeals to reject this claim on the
merits.
C. Ineffective Assistance of Counsel
Petitioner raises four claims of ineffective assistance of counsel.
Petitioner first asserts that defense counsel was ineffective for impeaching
Bowler’s testimony with the tape recorded statement he gave at codefendant May’s attorney’s office. Next, Petitioner complains that his trial
counsel failed to cross examine Cooper regarding the fact that she had not
discussed Parham’s sentence with him or his co-defendant. Petitioner also
asserts that his counsel was ineffective for failing to object to the alleged
misconduct of the prosecutor discussed above. Finally, Petitioner asserts
-13-

that his counsel failed to adequate prepare for the retrial in a number of
ways.
To establish ineffective assistance of counsel, a defendant must
show both that: (1) counsel’s performance was deficient, i.e., “that
counsel’s representation fell below an objective standard of
reasonableness”; and (2) the deficient performance resulted in prejudice to
the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). “[A]
court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances,
the challenged action ‘might be considered sound trial strategy.’” Id. at 689
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The test for
prejudice is whether “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
With respect to the first claim, the problem for Petitioner is that it is
reasonably debatable whether playing the actual recording of Bowler’s
statement at May’s attorney’s office for the jury would have been beneficial
or harmful to the defense. Defense counsel, in fact, presented evidence
that the recanting statement was made, and he elicited testimony from
-14-

May’s attorney that he did not think the statement seemed coerced. Playing
the tape itself, however, carried with it the risk of having the jury make a
determination that Bowler sounded as if he were being forced into making
the statement. The decision not to take that risk is exactly the type of
tactical decision that may not be second-guessed on habeas review. As the
Supreme Court explained, there are “‘countless ways to provide effective
assistance in any given case. Even the best criminal defense attorneys
would not defend a particular client in the same way.’” Rare are the
situations in which the ‘wide latitude counsel must have in making tactical
decisions’ will be limited to any one technique or approach.” Richter, 562
U.S. at 106 (quoting Strickland, 466 U.S. at 689). The claim was
reasonably rejected by the state court.
Petitioner next claims that his counsel should have elicited testimony
from Cooper that she did not discuss Parham’s sentence with Petitioner or
May. Petitioner asserts that such testimony would have undermined the
prosecutor’s theory of motive as to why Petitioner shoot Parham. As the
Michigan Court of Appeals reasonably found, this argument is based both
on an oversimplification of the prosecutor’s theory of the case and it also
ignores the fact that Cooper testified on direct examination that she had not
talked with Petitioner at all about Parham’s case:
-15-

Defendant White’s argument is based on the erroneous
premise that his knowledge about the sentence that Parham
received in Cooper’s assault case was the sole motivation for
the shooting. But the prosecution’s cross-examination of
Cooper established that there were problems between
defendant White and victim Parham that preceded Cooper’s
assault. Furthermore, Cooper had already testified on direct
examination that she did not speak with defendant White in
2012, had never told him about the proceedings involving
Parham, and had not talked to him about that case. That
testimony, if believed, would have allowed the jury to find that
defendant White had not been informed about Parham’s plea
and sentence in the assault case. Therefore, defense counsel’s
failure to further pursue that subject matter on
cross-examination was neither objectively unreasonable nor
prejudicial.
White, 2015 WL 6161448, at *6.
Cooper testified on direct examination that Parham shot her van in
2011, and that she dated Petitioner from 2010. Dkt. 9-17, at 97-98. She
was still dating Petitioner at the time Parham shot her van, but Petitioner
was not in the vehicle at the time. Id., at 99. Cooper testified that though
she reported the shooting to police, she did not want anything to do with
the case afterwards, and she had to be arrested to come to court to testify.
Id., at 99-102. She flatly denied that she told Petitioner about what
happened with the case against Parham. Id., at 102-03. Indeed, she denied
that she spoke with Parham at all and was not longer his girlfriend at the
time. Id., at 103–09. She admitted only speaking with Petitioner again after
-16-

his arrest while he was in jail. Id. In light of Cooper’s vehement denial of
informing Petitioner about Parham’s prosecution and sentence on direct
examination, it was not deficient performance for Petitioner’s counsel not to
revisit this portion of her testimony that had already been favorable to her
client. The rejection of this claim by the Michigan Court of Appeals was not
unreasonable.
Petitioner next asserts that his counsel was ineffective for failing to
object to the alleged misconduct of the prosecutor discussed above. To
show prejudice under Strickland for failing to object to prosecutorial
misconduct, a habeas petitioner must show that but for the alleged error of
his trial counsel in failing to object to the prosecutor’s improper questions
and arguments, there is a reasonable probability that the proceeding would
have been different. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001).
Because the Court has already determined that the prosecutor's comments
did not deprive petitioner of a fundamentally fair trial, petitioner is unable to
establish that he was prejudiced by counsel's failure to object to these
remarks. Slagle v. Bagley, 457 F.3d 501, 528 (6th Cir. 2006).
Finally, Petitioner asserts that his counsel was ineffective in a number
of ways in his preparation for the second trial. The Michigan Court of
Appeals rejected the claim on merit as follows:
-17-

Defendant White also argues that defense counsel was
ineffective for not investigating or calling an expert witness to
testify regarding problems with the reliability of eyewitness
testimony. Again, defendant White has not
submitted an affidavit or other offer of proof from a proposed
expert witness to demonstrate how such testimony could have
been helpful or made a difference in the case. Moreover, the
witnesses in this case were already familiar with defendant
White. Significantly, Bowler testified that he knew both
defendants because they grew up in the same neighborhood;
thus, there is no reasonable probability that the testimony of an
expert could have affected the outcome.
Defendant White also asserts that trial counsel (1) failed to
consult with him about an alibi defense, (2) failed to provide him
with discovery, (3) failed to meet with him after the first trial
ended in a mistrial in time to prepare for the second trial, and
(4) failed to return numerous telephone calls from him and his
family members to discuss trial strategy. Again, the extent of
counsel’s pretrial preparations and contacts are not a matter of
record, defendant White has not supported his claims with any
affidavits or other offers of proof, and he does not explain how
these alleged deficiencies affected the outcome of trial.
Accordingly, these claims fail.
White, 2015 WL 6161448, at *6.
This summary denial of Petitioner’s remaining conclusory allegations
of ineffective assistance of counsel was not unreasonable. “It should go
without saying that the absence of evidence cannot overcome the ‘strong
presumption that counsel’s conduct [fell] within the wide range of
reasonable professional assistance.’” Burt v. Titlow, 134 S. Ct. 10, 17
(2013)(quoting Strickland, 466 U.S. at 689). At root, these remaining
-18-

allegations of ineffective assistance of counsel claim are based on mere
speculation that further investigation and preparation for the retrial would
have been beneficial. Hodge v. Haeberlin, 579 F.3d 627, 650 (6th Cir.
2009). It was reasonable for the state appellate court to reject these claims.
As none of Petitioner’s claims merit relief, the petition will be denied.
IV. Certificate of Appealability
Federal Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability is issued under 28 U.S.C. §
2253. Rule 11 of the Rules Governing Section 2254 Proceedings, which
was amended as of December 1, 2009, requires that a district court must
“issue or deny a certificate of appealability when it enters a final order
adverse to the applicant. . . . If the court issues a certificate, the court must
state the specific issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2).” Rule 11, Rules Governing Section 2254 Proceedings.
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). Courts must either issue a certificate of appealability indicating
which issues satisfy the required showing or provide reasons why such a
certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b);
In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
-19-

To receive a certificate of appealability, “a petitioner must show that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotes and
citations omitted). Here, jurists of reason would not debate the Court’s
conclusion that Petitioner has not met the standard for a certificate of
appealability because his claims are completely devoid of merit. Therefore,
the Court denies a certificate of appealability.
The Court will also deny permission to appeal in forma pauperis
because any appeal of this decision could not be taken in good faith. 28
U.S.C. § 1915(a)(3).
V. Conclusion
Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for
a writ of habeas corpus, 2) DENIES a certificate of appealability, and 3)
DENIES permission to appeal in forma pauperis.
SO ORDERED.
Dated: May 2, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
-20-

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 2, 2017, by electronic and/or ordinary mail and also on
Brian White #450311, Chippewa Correctional Facility,
4269 W. M-80, Kincheloe, MI 49784.
s/Barbara Radke
Deputy Clerk

-21-