Parker v. Stewart

Filing 18

OPINION and ORDER DENYING PETITIONER'S APPLICATIONS 1 & 3 Petition for Writ of Habeas Corpus, DENYING PETITIONER'S MOTIONS 4 FOR Stay of Proceedings AND 15 MOTION FOR Discovery, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY. Signed by District Judge Bernard A. Friedman. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AVANTIS PARKER,
Petitioner,
Civil Action No. 17-CV-11962
v.
HON. BERNARD A. FRIEDMAN
ANTHONY STEWART,
Respondent.
_____________________/

OPINION AND ORDER DENYING PETITIONER=S APPLICATIONS
FOR A WRIT OF HABEAS CORPUS, DENYING PETITIONER=S MOTIONS
FOR A STAY AND FOR DISCOVERY, AND DECLINING TO ISSUE
A CERTIFICATE OF APPEALABILITY

In 2013, petitioner pled guilty to interfering or tampering with a witness and
second-degree murder pursuant to a plea and sentencing agreement that called for a sentence of
twelve and one half to fifteen years in prison. The trial court sentenced petitioner to ten to
fifteen years in prison. The Michigan Court of Appeals reversed the trial court=s sentence and
remanded the case because the trial court did not inform the prosecution of its intended sentence
or give the prosecutor an opportunity to withdraw the plea agreement before imposing the
sentence. Now before the Court are petitioner=s applications for a writ of habeas corpus [docket
entries 1 and 3], his motions to stay the trial court=s anticipated proceeding on remand from the
Michigan Court of Appeals [docket entries 2 and 4], and his motion for discovery [docket entry
15]. Petitioner contends that the Court of Appeals= decision violates his double-jeopardy and
due process rights. For the reasons that follow, the petitions and motions are denied.

I. Background
Petitioner currently is incarcerated at the G. Robert Cotton Correctional Facility
in Jackson, Michigan. In 2013, he was charged in Washtenaw County, Michigan with (1) open
murder, (2) possession of a firearm by a felon, (3) possession of a firearm during the commission
of, or attempt to commit, a felony, (4) carrying a concealed weapon, (5) first-degree
(premeditated) murder, and (6) interfering or tampering with a witness. The charges arose from
the fatal shooting of Brandon Charles in Ypsilanti Township on January 29, 2013.

The

prosecution=s theory was that petitioner aided and abetted two co-defendants by driving them to
the location where Charles was shot and killed.
On September 16, 2013, petitioner pled guilty to count six (interfering or
tampering with a witness), Mich. Comp. Laws ' 750.122, and to an added count of
second-degree murder, Mich. Comp. Laws ' 750.317. He also pled guilty to being a fourth
habitual offender. In return for petitioner=s plea and promise to testify for the prosecution in
related matters, the prosecution agreed to dismiss the first five counts against petitioner.
Additionally, the parties agreed that the sentence would be two concurrent terms of twelve and
one half to fifteen years in prison.
Sentencing was deferred to enable petitioner to satisfy his obligation to testify for
the prosecution in other hearings and trials pertaining to Charles= murder. Petitioner proceeded
to assist prosecutors in ways not contemplated by the parties at the time of his guilty plea. He
was also inadvertently jailed for a brief time with one of the men who was involved in Charles=
murder.

Consequently, before petitioner=s sentencing in 2015, his attorneys prepared a

sentencing memorandum in which they explained the impact and extent of petitioner=s

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cooperation with prosecutors and the threats that were directed at petitioner and his family. The
memorandum asked the trial court to consider sentencing petitioner to a more lenient sentence
than the one contemplated in the parties= plea and sentencing agreement. The defense attorneys
provided a copy of their sentencing memorandum to the prosecuting attorney, who edited the
memorandum but did not file a written response to it.
At petitioner=s sentencing on February 11, 2015, defense counsel summarized
petitioner=s cooperation with the prosecution during the period between petitioner=s plea hearing
and the sentencing date. Defense counsel then asked the trial court to sentence petitioner to less
than twelve and ond half to fifteen years in prison. The prosecutor did not object to the factual
basis for defense counsel=s request. In fact, she stated that she disagreed with little, if anything,
that defense counsel had said. However, she asked the trial court to sentence petitioner pursuant
to the plea and sentencing agreement. The trial court granted petitioner=s request and sentenced
petitioner to concurrent terms of ten to fifteen years. As promised, the prosecutor prepared an
order dismissing the first five counts against petitioner. The order was filed on February 12,
2015, and on February 20, 2015, the judgment of sentence was entered on the docket.
On February 26, 2015, a different prosecuting attorney filed a AMotion to Correct
an Invalid Sentence.@ The trial court held a hearing on the motion and subsequently denied it in
a written opinion. See People v. Parker, No. 13-157FC, Op. and Order of the Court Denying
Pl.=s Mot. to Correct Invalid Sentence (Washtenaw Cty. Cir. Ct. June 24, 2015) (unpublished).
The trial court noted that the prosecutor had not objected to the court=s reliance on an
unpublished decision to justify imposing a lower sentence and that the prosecutor also did not
ask to withdraw from the plea and sentencing agreement. The trial court concluded that its

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sentence was valid.
The prosecution appealed the trial court=s decision.

The Michigan Court of

Appeals reversed the sentence and remanded the case to the trial court. See People v. Parker,
No. 328323, 2016 WL 6905723 (Mich. Ct. App. Nov. 22, 2016) (unpublished). The Court of
Appeals determined that the trial court had erred by failing to alert the prosecution before
sentencing petitioner of the sentence that it intended to impose and by failing to give the
prosecution an opportunity to withdraw the plea agreement. The Court of Appeals based its
decision primarily on People v. Siebert, 450 Mich. 500; 537 N.W.2d 891 (1995), in which the
Michigan Supreme Court stated that
a prosecutor, like a defendant, is entitled to learn that the judge
does not intend to impose the agreed-upon sentence, to be advised
regarding what the sentence would be, and given an opportunity to
withdraw from the plea agreement . . . . In a case where the
prosecutor has lowered the charges against the defendant B
reducing either the number of counts charged or the level of those
charges B with the understanding of a certain minimum sentence,
the agreement is conditioned upon imposition of the specified
sentence. Were a court allowed to maintain its acceptance of the
plea over the prosecutor=s objection, it would effectively assume
the prosecutor=s constitutional authority to determine the charge or
charges a defendant will face.
Therefore, the trial court=s exclusive authority to impose
sentence does not allow it to enforce only parts of a bargain. A
court may not keep the prosecutor=s concession by accepting a
guilty plea to reduced charges, and yet impose a lower sentence
than the one for which the prosecutor and the defendant bargained.
Accepting a plea to a lesser charge over the prosecutor=s objection
impermissibly invades the constitutional authority of the
prosecutor. When a court receives information that in its
judgment dictates a lower sentence, it must alert the prosecutor of
the sentence it intends to impose and allow the prosecutor to
withdraw from the plea.
Id., 450 Mich. at 510-11; 537 N.W.2d at 895-96 (internal citations omitted).
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The Michigan Court of Appeals stated that in petitioner=s case Aa sentence in
defiance of a sentencing agreement is deemed invalid if the court does not follow the procedure
outlined in Siebert.@ Parker, 2016 WL 6905723, at *4. The Court of Appeals concluded that
plain error occurred at petitioner=s sentencing, that a remand was necessary, and that a Aremand
for sentencing in the face of an invalid sentence does not violate double jeopardy principles.@
Id. The Court of Appeals stated that, on remand, petitioner could
elect to Areaffirm@ his plea agreement, ask the trial court for
specific performance of the sentencing agreement, and accept a
sentence of 122 to 15 years. See People v. Killebrew, 416 Mich.
189, 209B210; 330 NW2d 834 (1982).
Alternatively, the
prosecution may accede to the sentence imposed, essentially
entering into a new sentencing agreement. Should the prosecutor
persist, defendant or the trial court may decline to abide by the
sentence agreement. The court must then allow the prosecution
an opportunity to withdraw the plea agreement. Id. at 510. If the
agreement is withdrawn, Athe case may proceed to trial on any
charges that had been brought or that could have been brought
against the defendant if the plea had not been entered.@ MCR
6.312.
Id. Petitioner appealed to the Michigan Supreme Court. On May 10, 2017, that court denied
leave to appeal because it was not persuaded to review the issues. See People v. Parker, 894
N.W.2d 546 (Mich. 2017).
On June 20, 2017, petitioner commenced the instant action by filing a habeas
corpus petition and a motion to stay the state trial court=s anticipated proceeding on remand. On
June 21, 2017, petitioner filed an amended petition and an amended motion for a stay of the state
court proceeding.
Respondent recently filed an answer to the habeas petition and the amended
motion for a stay. He contends that (1) the state appellate court=s finding that petitioner=s

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sentence was invalid does not present a cognizable claim on federal habeas review; (2) the state
appellate court reasonably rejected petitioner=s double jeopardy claim; and (3) the State=s appeal
was not vindictive, such that it deprived petitioner of due process. Respondent urges the court
to deny petitioner=s habeas petition and his motion for a stay.
On August 2, 2017, petitioner filed a motion for discovery and a reply to
respondent=s answers to his petition and motion for a stay.

He contends that respondent

misapprehends his claims, argues inapplicable law, and misstates the record.
II. Preliminary Issues
Two initial issues must be addressed: the doctrine of ripeness and the standard
of review.
A. Ripeness
[T]he concept of ripeness is intended Ato prevent the courts . . .
from entangling themselves in abstract disagreements.@ Abbott
Laboratories v. Garnder, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515,
18 L.Ed.2d 681 (1967). Ripeness, which focuses on Aavoidance
of premature adjudication,@ id., requires consideration of two
factors. First, the Court must address the Afitness of the issues for
judicial decision.@ See id. at 149, 87 S.Ct. at 1515. Second, the
Court must evaluate Athe hardship to the parties of withholding
court consideration.@ Id.
United States v. Sparks, 687 F. Supp. 1145, 1148 (E.D. Mich. 1988).
Petitioner=s double jeopardy and due process claims raise federal constitutional
issues which are fit for judicial decision, and it appears inevitable that petitioner will be
re-sentenced or tried in the near future. The parties require a decision on the constitutional
issues in order to make intelligent and informed choices on remand in the state trial court.
Therefore, withholding a decision would cause a hardship. The case is ripe for review.

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B. Standard of Review
Petitioner filed his amended petition under 28 U.S.C. ' 2241, which states in
relevant part that A[t]he writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in
custody in violation of the Constitution or laws or treaties of the United States.@ 28 U.S.C. '
2241(c)(3). This is a Ageneral grant of habeas authority to the federal courts.@ Phillips v. Court
of Common Pleas, Hamilton Cty, Ohio, 668 F.3d 804, 809 (6th Cir. 2012). The more specific
habeas statute, 28 U.S.C. ' 2254, applies Ato a subset of prisoners: those >in custody pursuant to
the judgment of a State court.=@ Id. (quoting 28 U.S.C. ' 2254(a)) (emphasis omitted). The
standards that apply to ' 2241 petitions are significantly less demanding than the standard which
applies to ' 2254 petitions. Id. at 810. Under ' 2254(d),
[a]n application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim -(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
Petitioner currently is in custody pursuant to the judgment of a state court.
Although the Michigan Court of Appeals determined that the trial court did not use the proper
procedure when

sentencing petitioner to a lower sentence than the parties initially

contemplated, the Court of Appeals did not vacate petitioner=s convictions. Therefore, it is at
least arguable that ' 2254, with its deferential standard, applies to this case. Nevertheless, the

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Court finds it unnecessary to decide whether de novo review under ' 2241 or the deferential
review under ' 2254 applies, because petitioner=s claims fail under either standard.
III. Analysis
A. Double Jeopardy
Petitioner claims that the state appellate court=s decision reversing the trial court
and remanding his case for further proceedings violates his right to be free from double jeopardy.
1. Waiver Versus Forfeiture
As a preliminary matter, petitioner claims that the prosecution waived its
opposition to the trial court=s sentence by not objecting to his request for a more lenient sentence.
The trial court implicitly agreed with petitioner, but the Michigan Court of Appeals concluded
that the prosecutor did not waive her right to withdraw the plea agreement.

The Court of

Appeals, reviewed the prosecutor=s challenge to the trial court=s decision for Aplain error@
because the prosecutor did not specifically request to withdraw the plea agreement at petitioner=s
sentencing.
In United States v. Olano, 507 U.S. 725 (1993), the Supreme Court explained that
A[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the >intentional relinquishment or abandonment of a known right.=@
Id. at 733 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
It is true that the prosecutor did not seek to withdraw the plea and sentencing
agreement when defense counsel asked the trial court for a more lenient sentence than the
sentence negotiated by the parties. She also Adisagree[d] with very little, if anything@ that
defense counsel said to the trial court at petitioner=s sentencing. (2/11/15 Sentencing Hr=g at

8

18.) And, after petitioner=s sentencing, she submitted an order that dismissed the first five
counts against petitioner. See People v. Parker, No. 13-157 FC, Order Dismissing Count I, I,
III, IV, and V (Washtenaw Cty. Cir. Ct. Feb. 12, 2015).
However, at petitioner=s sentencing, the prosecutor asked the trial court Ato follow
the recommendation of probation, which [was] consistent with the sentencing agreement that
was reached between the parties.@ (2/11/15 Sentencing Hr=g at 16.) She also argued most of
the items defense counsel was asking the trial court to consider when sentencing petitioner were
things that she took into consideration when the parties negotiated a plea and sentencing
agreement. (Id. at 16, 18.) Further, she maintained that, although certain things were not taken
into consideration when the parties made their agreement, Aeveryone involved in [the] case was
very aware of the level of danger that [the] co-defendants brought to [the] situation[].@ (Id. at
17.)

The prosecutor then recommended and asked the trial court to follow the sentencing

agreement of twelve and one half to fifteen years.

(Id. at 18.)

She distinguished the

unpublished case on which petitioner relied B People v. Brontkowski, No. 313002 (Mich. Ct.
App. Mar. 25, 2014) B from petitioner=s case on the basis that, in Brontkowski, the prosecutor
had agreed to a more lenient sentence. (Id. at 19.) The prosecutor then repeated her request
that the trial court sentence petitioner pursuant to the parties= agreement. (Id.)
Petitioner asserts that, during pre-sentencing discussions between the prosecutor
and defense counsel, the prosecutor agreed that defense counsel could seek a sentence below the
negotiated sentence and that the trial court had authority to impose such a sentence. Thus, he
contends that the prosecutor acquiesced in his request for a more lenient sentence. But telling
defense counsel that the prosecution had no objection to defense counsel making the argument is

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different from consenting to the relief he sought.
The Court concludes that the prosecutor did not waive her right to contest the trial
court=s sentence. She may have forfeited her right to object to petitioner=s sentence by not
asking to withdraw the plea agreement when petitioner suggested a more lenient sentence, but
she did not waive her right to object to the sentence.
2. Multiple Punishments for the Same Offense
Petitioner next argues that the state appellate court=s decision subjects him to
double jeopardy because he had an expectation of finality in the sentence which the trial court
imposed. He points out that he was a cooperating witness and that the trial court determined in
its post-judgment opinion and order that the sentence was valid. Petitioner contends that, on
remand, he is at risk of (1) having the prosecution compel him to accept a harsher sentence, (2)
being forced to withdraw from the plea and sentencing agreement and proceed to trial, and (3)
being subjected to a mandatory life sentence without the possibility of parole if he is convicted
of first-degree murder, as initially charged, following a trial. The Michigan Court of Appeals
succinctly concluded on review of petitioner=s claim that Aremand for resentencing in the face of
an invalid sentence does not violate double jeopardy principles.@ Parker, 2016 WL 6905723, at
*4.
a. Legal Framework
The Double Jeopardy Clause of the Fifth Amendment provides that A[n]o person
shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .@ U.S.
CONST., amend V.

The Clause Ais applicable to the states through the Fourteenth

Amendment.@ Benton v. Maryland, 395 U.S. 784, 787 (1969). It Aprotects against a second

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prosecution for the same offense after acquittal. It [also] protects against a second prosecution
for the same offense after conviction. And it protects against multiple punishments for the same
offense.@ Brown v. Ohio, 432 U.S. 161, 165 (1977) (quoting North Carolina v. Pearce, 395
U.S. 711, 717 (1969)).
Petitioner argues that a remand from the Michigan Court of Appeals to the trial
for a resentencing hearing violates the third protection. A[I]n the multiple punishments context,
[Double Jeopardy Clause protection] is >limited to ensuring that the total punishment d[oes] not
exceed that authorized by the legislature.=@ Jones v. Thomas, 491 U.S. 376, 381 (1989) (quoting
United States v. Halper, 490 U.S. 435, 450 (1989)); see also United States v. DiFrancesco, 449
U.S. 117, 139 (1980) (stating that Aa defendant may not receive a greater sentence than the
legislature has authorized@). AThe key to the double jeopardy question where an increased
sentence is imposed following a successful appeal of either a conviction or a sentence is the
defendant=s legitimate expectation of finality in the first sentence.@ Gauntlett v. Kelley, 849 F.2d
213, 218 (6th Cir. 1988). But the defendant has no Aright to know at any specific moment in
time what the exact limit of his punishment will turn out to be,@ DiFrancesco, 449 U.S. at 137,
and he generally Ahas no expectation of finality in his sentence until the appeal is concluded or
the time to appeal has expired.@ Id. at 136.
b. Application
Michigan Court Rule 6.429(A) authorizes the prosecution in a criminal case to
move to correct an invalid sentence, and Mich. Comp. Laws ' 770.12(2)(e) permits the
prosecution to apply for leave to appeal a defendant=s sentence following a guilty plea, provided
that double jeopardy principles would not bar further proceedings against the defendant. A[T]he

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Double Jeopardy Clause does not require that a sentence be given a degree of finality that
prevents its later increase.@ DiFrancesco, 449 U.S. at 137. Therefore, in the present case the
prosecution was entitled to appeal the trial court=s sentencing decision, and the question is
whether petitioner nevertheless had a legitimate expectation of finality in his sentence of ten to
fifteen years. The Court believes he did not.
Petitioner=s cooperation with the prosecution went beyond what was initially
expected of him. But he had already negotiated and agreed to a minimum sentence of twelve
and one half years with knowledge that he would have to testify in multiple proceedings and that
he would face some risks. Furthermore, under the Michigan Supreme Court=s 1995 holding in
Siebert, a defendant is petitioner=s position knew or should have known that the trial judge=s
sentencing procedure in his case could be considered improper and that an appeal could lead to a
more severe sentence.
The timing and extent of the prosecutor=s objections to petitioner=s proposal to
reduce his sentence also weigh against a finding that petitioner had a legitimate expectation of
finality in the sentence imposed, as the prosecutor asked the trial court at sentencing to uphold
the parties= plea and sentencing agreement.
These factors militate against a finding that petitioner had a legitimate expectation
of finality in his sentence of ten to fifteen years.

The Court therefore finds no merit in

petitioner=s double jeopardy claim. To the extent that ' 2254(d) applies, the state appellate
court=s decision was not contrary to, or an unreasonable application of, Supreme Court
precedent.
B. Due Process

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In his second and final claim, petitioner argues that the decision of the Michigan
Court of Appeals violates his right to due process because the prosecution=s decision to appeal
the trial court=s sentence was a vindictive response to his exercise of the right to a fair sentencing
hearing. None of the state courts addressed this claim.
A[D]ue Process prohibits an individual from being punished for exercising a
protected statutory or constitutional right.@ United States v. Poole, 407 F.3d 767, 774 (6th Cir.
2005) (citing United States v. Goodwin, 457 U.S. 368, 372 (1982)). The Due Process Clause,
however, Ais not offended by all possibilities of increased punishment . . . after appeal, but only
by those that pose a realistic likelihood of >vindictiveness.=@ Blackledge v. Perry, 417 U.S. 21,
27 (1974).
A defendant may establish prosecutorial vindictiveness through
one of two approaches. First, a defendant may demonstrate
Aactual vindictiveness,@ i.e., he may establish through objective
evidence that a prosecutor acted in order to punish the defendant
for standing on his legal rights. This showing, however, is
Aexceedingly difficult to make.@
Second, a defendant may establish that, in the particular factual
situation presented, there existed a A >realistic likelihood of
vindictiveness= @ for the prosecutor=s action. A court may only
presume an improper vindictive motive when a reasonable
likelihood of vindictiveness exists. The petitioner must establish
that (1) the prosecutor has Asome >stake= @ in deterring the
petitioner=s exercise of his rights and (2) the prosecutor=s conduct
was somehow Aunreasonable.@
Bragan v. Poindexter, 249 F.3d 476, 481B82 (6th Cir. 2001) (citations omitted).
In the present case, there is no objective evidence that the prosecutor acted in bad
faith or maliciously by contesting the trial court=s sentence. There also is no evidence that he
sought to punish petitioner for exercising his right to seek a lower sentence. Petitioner has

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failed to demonstrate Aactual vindictiveness.@
Petitioner also has failed to show a realistic likelihood of vindictiveness. The
successor prosecutor had no stake in deterring petitioner=s exercise of his rights, and his conduct
was not unreasonable. At the hearing on his motion to correct petitioner=s sentence, he argued
that the Michigan Supreme Court=s decision in Siebert controlled and that the cases on which
petitioner relied were distinguishable. He also made it clear that the prosecution simply wanted
the trial court to enforce the parties= plea and sentencing agreement. On appeal, the successor
prosecutor argued that the sentence was invalid under Siebert. He argued in favor of the sentence
that petitioner initially negotiated and approved.

The fact that the prosecutor prevailed on

appeal is an indication that there was merit in his argument and that he was not being vindictive
or unreasonable in appealing the sentence. Petitioner=s due process clause lacks merit.
C. Petitioner=s Motions for a Stay
In his motions for a stay, petitioner asks the Court to stay the state court=s pretrial
or sentencing proceeding until this Court has had an opportunity to resolve the underlying
matter. Petitioner contends that the state appellate court=s ruling is contrary to clearly establish
constitutional law and that he is in jeopardy of being punished twice for the same offense, having
his original sentence increased, and being subjected to a trial on charges that were dismissed
pursuant to a plea and sentence agreement after he provided extensive cooperation.
Having resolved the double jeopardy and due process issues that petitioner raised
in his habeas petitions, the Court finds it unnecessary to consider granting a stay. Accordingly,
these motions are denied.
D. Petitioner=s Motion for Discovery

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In his motion for discovery, petitioner indicates he anticipates obtaining
documents and deposing the trial prosecutor to verify discussions that took place before and after
petitioner=s sentencing. Petitioner seeks evidence to show that the prosecutor agreed with his
request to seek a sentence below the sentence agreement.
Habeas petitioners are not entitled to discovery as a matter of course. See Bracy
v. Gramley, 520 U.S. 899, 904 (1997). And while A[a] judge may, for good cause, authorize a
party to conduct discovery under the Federal Rules of Civil Procedure, . . . the scope and extent
of such discovery is a matter confided to the discretion of the District Court.@ Id. at 909.
The relevant facts in this case are sufficiently set forth in the record currently
before the Court. Therefore, petitioner=s motion for discovery is denied.
IV. Conclusion and Order
Petitioner has not shown that he is in custody in violation of the Constitution.
Furthermore, to the extent that 28 U.S.C. ' 2254(d) applies here and that the Michigan Court of
Appeals adjudicated at least one of petitioner=s claims on the merits, its decision was not
contrary to clearly established federal law, an unreasonable application of federal law, or an
unreasonable determination of the facts. Accordingly,

IT IS ORDERED that the petition [docket entry 1] and the amended petition
[docket entry 3] for a writ of habeas corpus are denied.

IT IS FURTHER ORDERED that petitioner=s motion for a stay [docket entry 2]
and amended motion for a stay [docket entry 4] are denied.

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IT IS FURTHER ORDERED that petitioner=s motion for discovery [docket entry
15] is denied.

IT IS FURTHER ORDERED that no certificate of appealability shall issue,
because reasonable jurists could not debate whether the issues should have been resolved
differently and whether the issues deserve encouragement to proceed further.

Dated: August 17, 2017
Detroit, Michigan

s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court’s ECF System to their respective email or First Class
U. S. Mail Addresses disclosed on the Notice of Electronic Filing on August 17, 2017.
s/Teresa McGovern
Case Manager Generalist

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