Hale v. Haas
Filing
9
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying Certificate of Appealability, Denying Permission to Appeal IFP. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VITO MAXMILLION HALE,
Petitioner,
Case No. 2:16-cv-14257
Hon. Paul D. Borman
v.
RANDALL HAAS,
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 Vito Maxmillion Hale was convicted after he pled guilty in the St. Clair
Circuit Court to two counts of first-degree criminal sexual conduct, MICH. COMP.
LAWS § 750.520b, one count of torture, MICH. COMP. LAWS § 750.85, and two
counts of unlawful imprisonment. MICH. COMP. LAWS § 750.349b. The court
sentenced Petitioner to three concurrent terms of 18 years and 9 months to 30 years
for the torture and criminal sexual conduct convictions and two terms of 10 to 15
years for the unlawful imprisonment convictions.
The petition raises two claims: (1) Petitioner’s guilty plea was the product of
ineffective assistance of trial counsel, and (2) Petitioner’s sentencing guidelines
were incorrectly scored. The Court finds that Petitioner’s claims are without merit
and will therefore deny the petition. The Court will also deny Petitioner a
certificate of appealability and deny him permission to proceed on appeal in forma
pauperis.
I. Background
The charges against Petitioner arose from allegations that he held two
individuals hostage at his apartment where he beat, sexually abused, and
humiliated them.
On April 17, 2013, after a “lengthy discussion [between] all of the parties
involved,” Petitioner entered into a plea agreement. Dkt. 8-4, at 3. The prosecutor
placed the terms of the agreement on the record. Petitioner agreed to plead guilty to
the offenses indicated above and to be subject to lifetime electronic monitoring. Id.
at 4. In exchange, the prosecutor agreed to dismiss two additional counts of firstdegree criminal sexual conduct and an assault charge relating to an incident
occurring at the county jail between Petitioner and a deputy. Id. at 4-5. The parties
also agreed on the scoring of the sentencing guidelines. Id. at 4.
Both defense counsel and Petitioner indicated that the prosecutor accurately
stated the terms of the plea agreement. Id. at 5. Petitioner indicated that he had
sufficient time to discuss the matter with defense counsel, and he stated that he
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understood what was happening at the proceeding. Id. at 5.
The trial court indicated that it had previously received a letter from
Petitioner expressing dissatisfaction with his counsel, and that Petitioner wished to
be appointed a new attorney. Id. at 6-7. The trial court inquired whether Petitioner
wished to proceed with that request in light of the plea agreement, and Petitioner
indicated he was withdrawing his request for new counsel. Id. at 7.
Petitioner’s counsel stated that he had previously discussed with the
prosecutor the issue of Petitioner’s competency or whether a referral to the
Forensic Center was necessary for an evaluation, and the attorneys agreed that an
evaluation was not necessary. Id. at 7. The trial court accepted the parties’
representation as to Petitioner’s competence “at face value, and we will move on.”
Id. at 8.
Petitioner was then placed under oath. Id. at 8. Petitioner testified that he
was twenty-one years old, and he was a high school graduate. Id. at 9. The trial
court informed Petitioner of the charges against him. Id. at 9-13. Petitioner
indicated his understanding of the nature of the offenses, and he confirmed that his
attorney had explained the charges to him. Id. Petitioner was informed of the
maximum penalty for each offense, and he indicated his understanding. Id.
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Petitioner stated that he understood if his plea were accepted by the court
that he faced up to life-imprisonment or any term of years for the criminal sexual
conduct and torture offenses, and a term of up to fifteen years for the unlawful
imprisonment offenses. Id. Petitioner also indicated his understanding that he
would be subject to lifetime electronic monitoring. Id.
The Court informed Petitioner that he had a right to a trial, but that if his
guilty plea were accepted he would be giving up that right. Id. at 13. The trial court
then informed Petitioner of all the trial rights he would be waiving by entering a
guilty plea. Id. at 13-14. Petitioner indicated his understanding. Id. Petitioner was
also informed of the appellate rights he was waiving by entering his guilty plea,
and Petitioner again indicated his understanding. Id. at 14.
The trial court informed Petitioner that it understood there was an agreement
on the scoring of the sentencing guidelines between the parties, but the court stated
that it was not bound by that agreement and would consider the scoring of the
guidelines offered by the probation department as well. Id. at 14-15. Petitioner
indicated his understanding. Id.
Petitioner was then asked how he wished to plead with respect to each of the
five offenses, and after each count was read Petitioner indicated he wished to plead
guilty. Id. at 15-16. Petitioner then affirmed that he was pleading guilty by his own
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choice. Id. at 17. Petitioner denied that anyone had threatened him in order to get
him to plead guilty. Id. Petitioner also denied that anyone had promised him
anything other than what was placed on the record. Id.
Petitioner then gave a factual basis for his plea. Petitioner testified that in
January of 2013, Cody Burtch and Melissa Hunt resided with him at his apartment
in Port Huron. Id. at 17-18. Petitioner admitted that he beat Burtch and caused
severe bruising. Id. at 18. Petitioner admitted that he urinated on the two victims
while he forced them to clean his bathroom. Id. at 18-19. Petitioner testified that he
forced his penis inside Burtch’s mouth while he had Hunt hold Burtch down on the
floor. Id. at 20. Petitioner also forced the victims to have sex with each other. Id. at
20.
Petitioner admitted that he forced Burtch to go outside while naked to the
point that his feet became bloody from the cold. Id. at 21-22. Petitioner admitted
that he tied Burtch up and forced a sex toy into his rectum against his will. Id. at
22-25. Petitioner testified that he directed Hunt to perform oral sex on Burtch
against her will, and Burtch was forced to perform oral sex on Hunt against his
will. Id. at 22-23, 26. During these episodes other people took part in the abuse and
photographed the victims. Id. at 24-25. Neither victim was free to leave
Petitioner’s apartment during this time-frame, and they were required to do what
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Petitioner directed them to do. Id. at 25.
Petitioner indicated to the court that his testimony was truthful. Id. at 26.
Petitioner denied that he was having any difficulty hearing or understanding what
was happening in court. Id. at 26. Both attorneys denied knowing of any threats or
promises made to induce the plea other than the promises that were placed on the
record. Id. at 27.
The court found that Petitioner’s guilty plea was accurate and voluntary. Id.
at 27.
Petitioner was subsequently sentenced as indicated above to terms that fell
within the agreed-upon sentencing guidelines score. Dkt. 8-5.
Following sentencing, Petitioner was appointed appellate counsel who filed
an application for leave to appeal in the Michigan Court of Appeals. The
application raised the same two claims Petitioner presents in this action:
I Mr. Hale has a right to withdraw his guilty pleas because his guilty
pleas were the product of ineffective assistance of trial counsel on two
grounds:
A. Trial counsel failed to pursue evaluations for
competency to stand trial and for criminal responsibility
while having knowledge that Mr. Hale suffered with
several mental/emotional disorders and deficiencies; and
B. As part of the plea agreement, trial counsel stipulated to
incorrectly scored sentencing guidelines.
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II. Mr. Hale is entitled to a re-sentencing based upon incorrectly scored
sentencing guidelines.
The Michigan Court of Appeals denied Petitioner’s application for leave to
appeal “for lack of merit in the grounds presented.” People v. Hale, No. 324623
(Mich. Ct. App. Dec. 29, 2014). Petitioner subsequently filed an application for
leave to appeal in the Michigan Supreme Court that raised the same claims, but his
appeal was denied by standard order. People v. Hale, 869 N.W.2d 569 (Mich.
2015) (Table).
II. Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of constitutional
claims raised by a state prisoner in a habeas action if the claims were adjudicated
on the merits by the state courts. Relief is barred under this section unless the state
court adjudication was “contrary to” or resulted in an “unreasonable application
of” clearly established Supreme Court law.
“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court
cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different from
[this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam),
quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
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“[T]he ‘unreasonable application’ prong of the statute 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.
“A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011), quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). “Section 2254(d) reflects the
view that habeas corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through
appeal. . . . 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.” Richter, 562 U.S. at 103 (internal quotation omitted).
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III. Analysis
A. Ineffective Assistance of Counsel
Petitioner first challenges the effectiveness of his trial counsel. He primarily
asserts that his counsel performed deficiently by failing to move to have Petitioner
evaluated for competency to stand trial and to determine whether he had a viable
insanity defense.1 The Michigan Court of Appeals summarily denied this claim
“for lack of merit.” The AEDPA deferential standard of review applies to the state
adjudication of Petitioner’s claims because the Michigan Court of Appeals’ order
constitutes a decision on the merits. See Werth v. Bell, 692 F. 3d 486, 492-94 (6th
Cir. 2012).
The Sixth Amendment guarantees a criminal defendant the right to the
effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668 (1984),
the Supreme Court set forth a two-prong test for determining whether a habeas
petitioner has received ineffective assistance of counsel. First, a petitioner must
prove that counsel’s performance was deficient. This requires a showing that
counsel made errors so serious that he was not functioning as counsel as
guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the
1
Petitioner also claims that his counsel was ineffective for failing to challenge the
scoring of the sentencing guidelines. That allegation will be discussed below with
Petitioner’s second claim.
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petitioner must establish that counsel’s deficient performance prejudiced the
defense. Counsel’s errors must have been so serious that they deprived the
petitioner of a fair trial or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts that were
“outside the wide range of professionally competent assistance.” Id. at 690. A
reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at
689. There is a strong presumption that trial counsel rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment. Id.
In the guilty plea context, prejudice is established if there is a reasonable
probability that, but for counsel’s errors, the petitioner would not have pled guilty
and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59
(1985). “On balance, the benchmark for judging any claim of ineffectiveness must
be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on as having produced a
just result.” Strickland, 466 U.S. at 686.
The Michigan Court of Appeals’ summary decision on the merits did not
contravene the clearly established Supreme Court standard. Petitioner supports his
claim with his own representations that were included in the Pre-Sentence
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Investigation Report (“PSI”), and representations made in his counsel’s sentencing
memorandum. See Dkt. 8-6, Application for Leave to Appeal, at 11-12. In the PSI,
Petitioner claimed he had been diagnosed with “ADD, bipolar disorder, clinical
depression, and schizophrenia in the past.” Id. at 11. Despite these conditions,
neither Petitioner nor the probation officer who prepared the PSI suggested that
Petitioner did not understand the wrongfulness of his conduct or that he could not
control his actions at the time of the offenses. Meanwhile, defense counsel’s
sentencing memorandum sought to use Petitioner’s troubled past and history of
mental illness as mitigating circumstances justifying a more lenient sentence. But
defense counsel stopped short of claiming that Petitioner had a viable insanity
defense despite his statement that “Defendant appears to have a troubling inability
to understand the difference between right and wrong.” Id. at 12.
Defense counsel must conduct a reasonable investigation into the facts of a
defendant’s case, or make a reasonable determination that such investigation is
unnecessary. Strickland, 466 U.S. at 691; Stewart v Wolfenbarger, 468 F.3d 338,
356 (6th Cir. 2007); Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). The failure
to present evidence constitutes ineffective assistance of counsel only when it
deprives a defendant of a substantial defense. Chegwidden v. Kapture, 92 F. App’x
309, 311 (6th Cir. 2004); Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002).
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Here, Petitioner fails to show that trial counsel performed deficiently by
failing to investigate and present an insanity defense rather than advise Petitioner
to accept the plea bargain. This is not a case where defense counsel was unaware of
a potential issue. The matter was discussed at the plea hearing where defense
counsel indicated his belief that a referral to the Forensic Center was unnecessary.
Counsel’s statements in his sentencing memorandum likewise indicate his
familiarity with Petitioner’s history of mental illness and evidences a strategic
decision to use it as a mitigating factor at sentencing rather than a trial defense.
Furthermore, nothing in the record supports Petitioner’s contention that he
was insane at the time of the offenses. Under Michigan law, a criminal defendant
has the burden of proving the affirmative defense of insanity by a preponderance of
the evidence. See MICH. COMP. LAWS § 768.21a. To establish such a defense, the
defendant must show that, at the time of the offense, he had a mental illness or an
intellectual disability and that, as a result, he lacked the substantial capacity either
to appreciate the nature and quality or the wrongfulness of his conduct or conform
his conduct to the requirements of the law. Id.; People v. Carpenter, 464 Mich.
223, 230-31 (2001). While Petitioner’s own representations to the probation officer
preparing the PSI indicate that Petitioner may suffer from one or more mental
illnesses, the record does not indicate that he experienced mental illness symptoms
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at the time of the offense which prevented him from understanding the nature or
wrongfulness of his conduct or prevented him from conforming his conduct to the
law. Contrary to defense counsel’s hyperbolic statement in the sentencing
memorandum, Petitioner failed to proffer the state courts with any evidence
tending to indicate that he had a viable insanity defense.2 Conclusory allegations
without evidentiary support do not provide a basis for habeas. See Cross v. Stovall,
238 F. App’x 32, 39-40 (6th Cir. 2007); Prince v. Straub, 78 F. App’x 440, 442
(6th Cir. 2003); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). Petitioner
fails to establish that counsel performed deficiently by failing to pursue an insanity
defense.
As to the issue of competency, federal constitutional law establishes that a
criminal defendant may not be tried unless he is competent. Indiana v. Edwards,
554 U.S. 164, 169-70 (2008); Godinez v. Moran, 509 U.S. 389, 396 (1993). The
standard for competence to stand trial is whether the defendant has (1) sufficient
present ability to consult with a lawyer and (2) a rational and factual understanding
2
The only record attached to Petitioner’s Application for Leave to Appeal filed in
the Michigan Court of Appeals is a March 29, 2011, psychiatric evaluation
performed by a private provider. Contrary to Petitioner’s representations to the
author of the PSI, the report indicates a diagnosis of “Oppositional defiant
disorder, Mood disorder, and Attention-deficit/hyperactivity disorder.”
Defendant’s Application for Leave to Appeal, Exhibit D, at 4-5. The report
contains no information tending to support a claim of legal insanity or of
incompetence to plead guilty.
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of the proceedings against him. Id. at 396-98. Due process is violated by a trial
court’s failure to hold a competency hearing where there is substantial evidence of
a defendant’s incompetency. Pate v. Robinson, 383 U.S. 375, 385-86 (1966). The
question for a reviewing court in such a case is whether a reasonable judge,
situated as was the trial court judge, should have experienced a “bona fide doubt”
about the defendant’s competency. Warren v. Lewis, 365 F.3d 529, 533 (6th Cir.
2004) (citing Drope v. Missouri, 420 U.S. 162, 173 (1975)). Silence by a defendant
and defense counsel on the issue of competency at the time of trial is significant
evidence that there is no bona fide doubt about the defendant’s competency. United
States v. Gignac, 301 F. App’x 471, 475 (6th Cir. 2008).
Having reviewed the state court record, the Court concludes that trial
counsel did not err in failing to challenge Petitioner’s competency to be tried or to
plead guilty. A reasonable defense attorney (or reasonable judge sitting as the trial
judge) would not have experienced a bona fide doubt as to Petitioner’s competency
at the time he entered his plea. While Petitioner may suffer from mental illnesses,
the record is devoid of evidence that he was incompetent at the time of the plea and
was unable to consult with defense counsel or understand his criminal proceedings.
To the contrary, the record indicates that Petitioner consulted with counsel at
length prior to his plea. Moreover, Petitioner’s statements and testimony at the plea
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hearing were appropriate, responsive, and coherent.
Petitioner simply proffered no evidence to the state courts, and he proffers
no evidence here, to create a real and substantial doubt as to his competency or
sanity so as to warrant any relief from this Court. See Thirkield v. Pitcher, 199 F.
Supp. 2d 637, 653 (E.D. Mich. 2002) (citing cases). Petitioner therefore fails to
show that defense counsel’s performance was deficient or that he was prejudiced
by his counsel’s conduct. Petitioner’s first claim was reasonably rejected by the
Michigan Court of Appeals.
B. Sentencing Guidelines
Petitioner’s second claim concerns the scoring of the sentencing guidelines.
Specifically, Petitioner takes issue with the scoring of the offense variable
concerning whether the victims were placed in danger of physical injury or death,
contending that no points were warranted for that variable. Petitioner also argues
that he was scored excessive points for the offense variable concerning the number
of sexual penetrations that occurred beyond the charged offenses. Petitioner asserts
that no points were warranted for that variable.
Petitioner’s sentencing claims are without merit. Ordinarily, a sentence
falling within statutory limits is not subject to federal habeas review. Townsend v.
Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D.
15
Mich. 1999). Here, Petitioner’s sentences fell within the statutory maximums. See
MICH. COMP. LAWS § 750.520b (setting life or any term of years as maximum
penalty for first-degree criminal sexual conduct); MICH. COMP. LAWS § 750.85
(setting life or any term of years as maximum penalty for torture); MICH. COMP.
LAWS § 750.349b (setting fifteen-year maximum penalty for unlawful
imprisonment).
Moreover, Petitioner’s claim that the trial court misapplied Michigan law in
the scoring of the sentencing guidelines amounts to a non-cognizable assertion that
the state court misapplied its own laws. See Howard v. White, 76 F. App’x 52, 53
(6th Cir. 2003) (“A state court’s alleged misinterpretation of state sentencing
guidelines . . . is a matter of state concern only.”) (citations omitted); Austin v.
Jackson, 213 F.3d 298, 300-01 (6th Cir. 2000) (holding state court did not abuse its
discretion nor violate federal due process by imposing a sentence above the state
sentencing guidelines).
The parties agreed to the scoring of the sentencing guidelines. As it turns
out, this agreement worked to Petitioner’s benefit. The trial court indicated at the
sentencing hearing that, “I might have come up with something different. And
there were certain variables that I felt could apply and maybe should have applied
that would have put [Petitioner] into a higher grid with a higher low end and a
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higher high end on the sentencing guideline range.” Dkt. 8-5, at 16.
In any event, and contrary to Petitioner’s assertions, the record established at
the preliminary examination supported a finding that Petitioner sexually penetrated
Burtch many more times than the two charged instances. See Dkt. 8-2, at 47, 51,
and 54 (describing various objects Petitioner used to sexually penetrate Burtch).
Furthermore, the record supports the scoring of points for the victim being placed
in danger of death or serious injury. Aside from being placed naked outside in
freezing temperatures until his feet were bleeding, Burtch’s testimony at the
preliminary examination described multiple beatings and threats of death. Id., at
32-33, 41. Any alleged errors in the scoring of the offense variables of the
Michigan Sentencing Guidelines do not justify federal habeas relief.
Petitioner also asserts that his sentences violate federal due process because
the guidelines were scored based on material misinformation. A sentence might
violate federal due process if it is carelessly or deliberately pronounced on an
extensive and materially false foundation which the defendant had no chance to
rectify. Townsend, 334 U.S. at 741; see also United States v. Tucker, 404 U.S. 443,
447 (1972). To prevail on this claim, a petitioner must show that a court relied
upon false information. Draughn v. Jabe, 803 F. Supp. 70, 80 (E.D. Mich. 1992).
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Petitioner fails to show that the sentencing court relied upon false
information. The record reveals that Petitioner had an opportunity to challenge the
guidelines scoring at the sentencing hearing. Petitioner also presented his
sentencing issues to the state appellate courts and did not obtain relief. And as
indicated above, the scoring of the guidelines was supported by the evidence
presented at the preliminary examination and Petitioner’s own testimony at the
guilty plea hearing. Accordingly, the Court finds that no due process violation
occurred.
Finally, Petitioner asserts that his counsel was ineffective for failing to
object to the scoring of the sentencing guidelines. The record indicates, however,
that had counsel not agreed to the scoring of the guidelines, the trial court would
have scored them more harshly against Petitioner. Dkt. 8-5, at 16. Petitioner has
therefore failed to show that he was prejudiced by his counsel’s purported
ineffectiveness. See Spencer v. Booker, 254 F. App’x 520, 525-26 (6th Cir. 2007).
As both of Petitioner’s claims are without merit, the petition for a writ of
habeas corpus 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 issues. A certificate of appealability
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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).
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 devoid of merit. Therefore,
the Court denies a certificate of appealability.
The Court will also deny permission to appeal in forma pauperis because an
appeal of this decision could not be taken in good faith. 28 U.S.C. § 1915(a)(3).
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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.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: May 31, 2018
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on May
31, 2018.
s/Deborah Tofil
Case Manager
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