Davison v. Harry
Filing
17
OPINION and ORDER DENYING 1 Petition for Writ of Habeas Corpus; a Certificate of Appealability; and Leave to Appeal in forma pauperis. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
2:17-CV-12125-TGB
CLARENCE JAVON DAVISON,
Petitioner,
OPINION AND ORDER
DENYING (1) THE PETITION
FOR A WRIT OF HABEAS
CORPUS; (2) A CERTIFICATE
OF APPEALABILITY; AND (3)
LEAVE TO APPEAL IN
FORMA PAUPERIS
vs.
GREG SKIPPER,
Respondent.
Clarence Javon Davison, (“Petitioner”), confined at the Chippewa
Correctional Facility in Kincheloe, Michigan, seeks the issuance of a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application,
Petitioner challenges his conviction for assault with intent to murder,
Mich. Comp. Laws § 750.83; and assault by strangulation, Mich. Comp.
Laws § 750.84(1)(b). For the reasons that follow, the petition for writ of
habeas corpus will be DENIED.
I. Background
Petitioner was convicted by a jury in the Genesee County Circuit
Court. This Court recites verbatim the relevant facts regarding
Petitioner’s conviction from the Michigan Court of Appeals’ opinion
affirming his conviction, which are presumed correct on habeas review
1
pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F. 3d 410,
413 (6th Cir. 2009):
Defendant’s convictions arise from an October 15, 2013
assault of his former girlfriend. The victim had been involved
in a dating relationship with defendant on and off for several
years, but was actively trying to end the relationship in the
weeks leading up to the assault. The victim was driving home
from a store shortly before 1:30 AM on the date of the assault
when defendant called her mobile phone 8 times within a ten
minute span. She ignored the calls. The victim testified that,
when she pulled into the driveway of her home, defendant
approached her and held an item against her stomach while
repeatedly stating, “I’m sick of this.” The victim believed the
item to be a gun but could not describe the item as it was being
concealed in defendant’s coat pocket.
Defendant put his hand around the victim’s mouth and
dragged her to the far side of an abandoned house next to her
home. He threw the victim to the ground and choked her until
she lost consciousness. When the victim regained
consciousness, a shoestring was wrapped tightly around her
neck. The victim testified that defendant then grabbed her by
her ponytail and stated, “Well if I can’t have you, can’t nobody
have you.” The victim then felt something sharp go across her
neck and could hear blood gushing from the wound. At this
point, defendant fled. The victim remained on the ground for
several minutes before struggling to her home where her
roommates called 911. Responding officers and paramedics
testified that a shoelace was embedded in a wound around
victim’s neck cutting off her air supply. Though the victim lost
consciousness several times in the hours that followed,
emergency personnel testified that the victim positively
identified defendant as her assailant.
2
People v. Davison, No. 324479, 2016 WL 1276433, * 1 (Mich. Ct.
App. Mar. 31, 2016).
The Michigan Court of Appeals affirmed petitioner’s conviction, but
remanded the case to the Genesee County Circuit Court for the judge to
determine whether petitioner should be re-sentenced, in light of the
Michigan Supreme Court’s decision in People v. Lockridge, 498 Mich. 358;
870 N.W.2d 502 (Mich. 2015), which held that Michigan’s Sentencing
Guidelines scheme violates the Sixth Amendment right to a jury trial.
The Michigan Court of Appeals remanded the case back to the trial court
as per the procedure outlined in Lockridge for the judge to determine
whether she would have imposed the same sentence without the
sentencing guidelines. Id., lv. den. 500 Mich. 868, 885 N.W.2d 272 (2016).
The trial judge on remand denied petitioner’s request to be resentenced, concluding that she would have imposed the same sentence
even in the absence of the sentencing guidelines. People v. Davison, No.
13-034125-FC (Genesee Cty. Cir. Ct., Feb. 9, 2017) (ECF 1, Pg.ID 15).
Petitioner filed a petition for writ of habeas corpus, seeking habeas
relief on the four claims that he raised before the Michigan Court of
Appeals on his appeal of right. Petitioner also filed a motion to stay the
proceedings and hold the petition in abeyance pending his appeal from
the trial court’s denial of his request to be re-sentenced. The petition was
held in abeyance pending the exhaustion of Petitioner’s re-sentencing
3
appeal. Davison v. Harry, No. 2:17-CV-12125, 2017 WL 6539051 (E.D.
Mich. Dec. 21, 2017).
The Michigan appellate courts denied Petitioner’s appeal from the
denial of his request for re-sentencing. People v. Davison, No. 339586
(Mich.Ct.App. Jan. 25, 2018); lv. den. 502 Mich. 904, 913 N.W.2d 325
(2018).
This Court subsequently permitted petitioner to reopen the
proceedings and file an amended petition that was almost identical to the
original petition. Petitioner seeks habeas relief on the following grounds:
I. (Ground three in amended petition.) Was petitioner denied
his due process protection to a fair trial, as guaranteed under
both state and federal constitution, when the trial court
arraigned petitioner without first having acquired subjectmatter jurisdiction over petitioner, creating a jurisdictional
defect, that voids petitioner’s conviction?
II. (Ground two in amended petition.) Petitioner’s right to due
process and a jury trial under the federal and state
constitution were violated by judicial fact finding which
increased the floor of his permissible sentence under Alleyne
v. United States. Further, trial counsel rendered ineffective
assistance in failing to object to the erroneous scoring.
III. (Ground one in amended petition.) Petitioner’s conviction
should be vacated because the prosecution failed to present
evidence sufficient to sustain the convictions.
IV. Petitioner was denied his fundamental and constitutional
right to a fair trial as guaranteed under both state and federal
constitutions, when the trial court, the prosecution and
4
defense counsel allowed the jury to decide petitioner’s fate by
and through a defective verdict form that did not allow the
jury the opportunity to return a not guilty verdict on the lesser
included offenses, resulting in structural error.
ECF No. 1, PageID.2; see also ECF No. 11, PageID.58-61.
II. LEGAL STANDARD
28 U.S.C. § 2254(d) provides that:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim–
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court 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
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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.
The Supreme Court explained that “a federal court’s collateral
review of a state-court decision must be consistent with the respect due
state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322,
340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for
evaluating state-court rulings,’ and ‘demands that state-court decisions
be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)
(quoting Lindh v. Murphy, 521 U.S. 320, 333, n.7 (1997)); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
“[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)). In order to obtain
habeas relief in federal court, a state prisoner is required to show that
the state court’s rejection of his claim “was so lacking in justification that
there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at 103.
III. DISCUSSION
A. Claim # 1. The jurisdictional claim.
Petitioner first claims that the Genesee County Circuit Court never
acquired jurisdiction over his criminal case either because of defects in
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the arrest warrant or criminal complaint and/or because of a lack of
evidence at the preliminary examination to support a bindover to the
circuit court and/or because the information following the bindover was
somehow defective.
The determination of whether a state court is vested with
jurisdiction under state law over a criminal case is a function of the state
courts, not the federal courts. Wills v. Egeler, 532 F.2d 1058, 1059 (6th
Cir. 1976); see also Daniel v. McQuiggin, 678 F.Supp.2d 547, 553 (E.D.
Mich. 2009).
The Sixth Circuit has noted that “[a] state court's
interpretation of state jurisdictional issues conclusively establishes
jurisdiction for purposes of federal habeas review.” Strunk v. Martin, 27
F. App’x. 473, 475 (6th Cir. 2001). Petitioner’s claim that the trial court
lacked jurisdiction to try his case raises an issue of state law, because it
questions the interpretation of Michigan law, and is therefore not
cognizable in federal habeas review. See United States ex. rel. Holliday v.
Sheriff of Du Page County, Ill., 152 F.Supp.2d 1004, 1013 (N.D. Ill. 2001);
Cf. Toler v. McGinnis, 23 F. App’x. 259, 266 (6th Cir. 2001) (district court
lacked authority on habeas review to review petitioner’s claim that the
state court erred in refusing to instruct jury on the requirements for
extraterritorial jurisdiction, because the claim was contingent upon an
interpretation of an alleged violation of state law).
In any event, Petitioner’s jurisdictional claim is meritless. “An
illegal arrest, without more, has never been viewed as a bar to
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subsequent prosecution, nor as a defense to a valid conviction.” United
States v. Crews, 445 U.S. 463, 474 (1980) (citing Gerstein v. Pugh, 420
U.S. 103, 119 (1975)); see also Frisbie v. Collins, 342 U.S. 519 (1952); Ker
v. Illinois, 119 U.S. 436 (1886). The Supreme Court has held that “the
‘body’ or identity of a defendant or respondent in a criminal or civil
proceeding is never itself suppressible as a fruit of an unlawful arrest,
even if it is conceded that an unlawful arrest, search, or interrogation
occurred.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). Although
the exclusionary rule prohibits the introduction at trial of evidence that
was seized in violation of the Constitution, a criminal defendant “is not
himself a suppressible ‘fruit,’ and the illegality of his detention cannot
deprive the Government of the opportunity to prove his guilt through the
introduction of evidence wholly untainted by the police misconduct.”
United States v. Crews, 445 U.S. at 474. Petitioner does not identify any
evidence other than his own body that was seized during this allegedly
unlawful arrest. Thus, the mere fact that Petitioner may have been
arrested without probable cause or on an invalid warrant would not
prevent him from being prosecuted and convicted of this offense.
To the extent that Petitioner’s claim that the felony complaint was
jurisdictionally defective is based on state law, it is not cognizable in
federal habeas corpus review. See Hogan v. Ward, 998 F. Supp. 290, 295
(W.D.N.Y. 1998); see also Lane v. Booker, No. 2006 WL 288071, *1 (E.D.
Mich. Feb. 6, 2006). In any event, a criminal court in Michigan does not
8
lose jurisdiction over a criminal case merely because the criminal
complaint was somehow defective. See People v. Payne, No. 2000 WL
33400212, at *3 (Mich.Ct.App. Nov. 28, 2000); People v. Mayberry, 52
Mich. App. 450, 451; 217 N.W.2d 420 (1974) (both citing People v. Burrill,
391 Mich. 124, 133; 214 N.W. 2d 823 (1974)).
Petitioner’s claim that there was insufficient evidence presented at
the preliminary examination to bind him over for trial is non-cognizable.
A prior judicial hearing is not a prerequisite to prosecution by
information. Gerstein v. Pugh, 420 U.S. 103, 119 (1975). There is no
federal constitutional right to a preliminary examination. United States
v. Mulligan, 520 F. 2d 1327, 1329 (6th Cir. 1975); Dillard v. Bomar, 342
F. 2d 789, 790 (6th Cir. 1965).
Petitioner’s claim that there was
insufficient evidence presented at his preliminary examination to bind
him over for trial thus raises only a matter of state law and procedure
that cannot form a basis for federal habeas relief. See Tegeler v. Renico,
253 F. App’x. 521, 525-26 (6th Cir. 2007). In addition, a guilty verdict
renders harmless any error in the charging decision. See United States v.
Mechanik, 475 U.S. 66, 73 (1986).
Any insufficiency of evidence at
Petitioner’s preliminary examination would be harmless error in light of
Petitioner’s subsequent conviction. See Redmond v. Worthinton, 878
F.Supp.2d 822, 844 (E.D. Mich. 2012).
Petitioner’s related claim that the information was defective is
likewise not a jurisdictional defect. Once jurisdiction vests in the circuit
9
court, it “is not lost even when a void or improper information is filed.”
People v. Goecke, 457 Mich. 442, 458–59, 579 N.W.2d 868, 876 (1998).
Petitioner is not entitled to relief on his first claim.
B. Claim # 2. The sentencing claim.
Petitioner in his second claim argues that the trial court judge
violated his Sixth Amendment right to a trial by jury by using factors
that had not been submitted to a jury and proven beyond a reasonable
doubt or admitted to by petitioner when scoring various guidelines
variables under the Michigan Sentencing Guidelines.
Petitioner’s second claim is moot because the Michigan Court of
Appeals agreed that the trial judge’s scoring of several of the offense
variables violated the Michigan Supreme Court’s holding in People v.
Lockridge, supra, where the Michigan Supreme Court held that the
Michigan Sentencing Guidelines mandatory scheme violated the Sixth
Amendment right to a jury trial.
The Michigan Court of Appeals
remanded the case back to the trial court as per the procedure outlined
in Lockridge for the judge to determine whether she would have imposed
the same sentence without the sentencing guidelines. People v. Davison,
2016 WL 1276433, at * 2-4.
Article III, § 2 of the United States Constitution requires the existence
of a case or controversy through all stages of federal judicial proceedings.
This means that, throughout the litigation, the petitioner “must have
suffered, or be threatened with, an actual injury traceable to the
10
defendant and likely to be redressed by a favorable judicial decision.”
Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). When the
issuance of a writ of habeas corpus would have no effect on a petitioner’s
term of custody, and would impose no collateral legal consequences, the
habeas petitioner fails to present a justiciable case or controversy within
the meaning of Article III of the Federal Constitution. See Ayers v. Doth,
58 F. Supp. 2d 1028, 1034 (D. Minn. 1999). “[M]ootness results when
events occur during the pendency of a litigation which render the court
unable to grant the requested relief.” Carras v. Williams, 807 F. 2d 1286,
1289 (6th Cir. 1986).
The Michigan Court of Appeals’ decision to vacate Petitioner’s
sentence and remand the matter to the trial judge for a determination of
whether or not she would impose petitioner’s same sentence in the
absence of the mandatory sentencing guidelines moots Petitioner’s Sixth
Amendment sentencing claim. See Hill v. Sheets, 409 F. App’x. 821, 82425 (6th Cir. 2010).
Petitioner in the alternative argues that trial counsel was
ineffective for failing to object to the scoring of these guidelines variables.
In light of the Michigan Court of Appeals’ determination that the
sentencing guidelines had been improperly scored and remanding to the
trial court for the judge to determine whether she would have imposed
the same sentence without these guidelines variables, Petitioner’s
ineffective assistance of counsel claim that was predicated on his
11
sentencing guidelines claim is now moot. See e.g. U.S. v. Jones, 489 F. 3d
243, 255 (6th Cir. 2007). Petitioner is not entitled to relief on his second
claim.
C. Claim # 3. The sufficiency of evidence claim.
Petitioner argues that the prosecution presented insufficient
evidence to establish his identity as the perpetrator.
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 crucial question 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). A court need not “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 31819 (internal citation and footnote omitted) (emphasis in original).
A federal habeas court cannot 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
12
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, 566
U.S. 650, 656 (2012). A state court’s determination that the evidence
does not fall below that threshold is entitled to “considerable deference
under [the] AEDPA.” Id.
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, “[T]he identity of a defendant as the
perpetrator of the crimes charged is an element of the offense and must
be proved beyond a reasonable doubt.” Byrd v. Tessmer, 82 F. App’x. 147,
150 (6th Cir. 2003) (citing People v. Turrell, 25 Mich. App. 646, 181
13
N.W.2d 655, 656 (1970)). Here, the Michigan Court of Appeals rejected
Petitioner’s claim:
In the instant case, the victim positively identified defendant
as her assailant. Defendant attacks this identification,
claiming that, because the attack occurred in a dark area, the
victim lost consciousness during and immediately after the
attack, and a toxicology screen returned evidence that the
victim had consumed illegal drugs, a rational jury could not
find that defendant’s identity as the assailant was proven
beyond a reasonable doubt. We disagree.
The victim testified that, although the attack occurred at
about 1:30 AM, the street lights were working and she
recognized defendant by both his appearance and voice.
Though she lost consciousness during and after the event, the
victim informed responding emergency personnel that
defendant was her assailant. Furthermore, the victim
testified that she had been trying to break off her dating
relationship with defendant and that her assailant stated,
“Well if I can’t have you, can’t nobody have you.” That the
victim may have been under the influence of illegal drugs at
the time of the assault may affect her credibility. However,
any credibility questions were for the jury to resolve, and this
Court will not resolve them anew. “It is the jury’s task to
weigh the evidence and decide which testimony to believe.”
That the jury believed the victim’s testimony over defendant’s
contentions is within their province. Viewed in a light most
favorable to the prosecution, the evidence was sufficient to
establish defendant’s identity as the assailant beyond a
reasonable doubt.
People v. Davison, 2016 WL 1276433, at * 2 (internal citations omitted).
In the present case, the victim positively identified petitioner at
trial as her assailant. The Court notes that “the testimony of a single,
14
uncorroborated prosecuting witness or other eyewitness is generally
sufficient to support a conviction.” Brown v. Davis, 752 F. 2d 1142, 1144
(6th Cir. 1985) (internal citations omitted). The victim unequivocally
identified Petitioner at trial as being the person who assaulted and
strangled her.
This evidence was sufficient to support Petitioner’s
convictions. See Brown v. Burt, 65 F. App’x. 939, 944 (6th Cir. 2003).
Although Petitioner attacks the quality of the eyewitness
identification, he is basically asking this Court to re-weigh the testimony
and credibility of the evidence, which this Court cannot do. See United
States v. Campbell, 18 F. App’x. 355, 358 (6th Cir. 2001) (quoting United
States v. Tipton, 11 F.3d 602, 609 (6th Cir. 1993)).
This portion of
petitioner’s insufficiency of evidence claim rests on an allegation of the
victim’s credibility, which is the province of the jury.
See Tyler v.
Mitchell, 416 F. 3d 500, 505 (6th Cir. 2005).
Petitioner argues that there was insufficient evidence to convict
him because the police did not recover DNA evidence, fingerprints, or
other forensic evidence to convict. The Sixth Circuit notes that the “lack
of physical evidence does not render the evidence presented insufficient;
instead it goes to weight of the evidence, not its sufficiency.” Gipson v.
Sheldon, 659 F. App’x. 871, 882 (6th Cir. 2016). Petitioner is not entitled
to relief on his third claim.
15
D. Claim # 4. The verdict form claim.
Petitioner claims that the verdict form was flawed because it did
not provide an option of not guilty on the lesser included offense of assault
with intent to do great bodily harm less than murder.
The jury verdict form gave the jurors the following options with
respect to the charge of assault with intent to commit murder:
____ Not Guilty
or
____ Guilty of Assault with Intent to Murder
or
____ Guilty of the less serious offense of Assault with Intent to do Great
Bodily Harm less than Murder.
(ECF No. 14-14, PageID.980).
The jury form indicated that the jurors could find Petitioner not
guilty, guilty of assault with intent to commit murder, or guilty of the
lesser included offense of assault with intent to do great bodily harm less
than murder.
The judge instructed the jurors that they could find
petitioner guilty of the original assault with intent to commit murder
charge, guilty of the lesser included charge of assault with intent to do
great bodily harm less than murder, or “not guilty of anything.” (Tr.
9/18/14, p. 175) (ECF No. 14-12, PageID.795).
The jury was instructed that they had the option of finding
Petitioner not guilty of both of the charged offense of assault with intent
16
to commit murder and of the lesser included offense of assault with intent
to do great bodily harm less than murder. The assault with intent to do
great bodily harm charge was a lesser included offense of assault with
intent to commit murder. The jury verdict form contained a not guilty
box.
The jury was provided with a “not guilty” verdict form and
Petitioner was charged with two related offenses; there was no due
process violation based on the submission of a single “not guilty” verdict
box to the jury. See e.g. Odum v. Boone, 62 F.3d 327, 332 (10th Cir. 1995)
(“Because the jury was provided with a ‘not guilty’ verdict form, and
[petitioner] was charged with two related offenses, we find no due process
violation based on the submission of a single ‘not guilty’ verdict form to
the jury.”); see also Sain v. Burt, No. 16-2576, 2017 WL 1381275, at * 1
(6th Cir. Apr. 17, 2017). And given that the jury found Petitioner guilty
of the principle charge, the jury would not have, nor could it have, also
found Petitioner not guilty of the lesser included offense. Petitioner is not
entitled to relief on his fourth claim.
IV. CONCLUSION
The Court will deny the petition for writ of habeas corpus. The
Court will also deny a certificate of appealability to Petitioner. In order
to obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). To demonstrate this denial, the applicant is required to show
17
that reasonable jurists could debate whether, or 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.
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court
rejects a habeas petitioner’s constitutional claims on the merits, the
petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims to be debatable
or wrong. Id. at 484. “The district court must issue or deny a certificate
of appealability when it enters a final order adverse to the applicant.”
Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; See also
Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
For the reasons stated in this opinion, the Court will deny
Petitioner a certificate of appealability because he has failed to make a
substantial showing of the denial of a federal constitutional right. See
Dell v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2002). The Court
will also deny Petitioner leave to appeal in forma pauperis, because the
appeal would be frivolous. Id.
V. ORDER
Based upon the foregoing, IT IS ORDERED that the Petition for a
Writ of Habeas Corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a Certificate of Appealability is
DENIED.
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IT IS FURTHER ORDERED that Petitioner will be DENIED
leave to appeal in forma pauperis.
DATED: February 18, 2020.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge
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