Threat v. Harry

Filing 17

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus; Denying Motions to Strike Answer; Denying Certificate of Appealability; Denying Leave to Proceed IFP on Appeal. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT THREAT,
Petitioner,
CIVIL NO. 2:17-CV-12465
Paul D. Borman
United States District Judge

v.
SHIRLEE HARRY,

Respondent.
________________________________/
OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, (2) DENYING THE MOTIONS TO STRIKE THE
ANSWER, (3) DENYING A CERTIFICATE OF APPEALABILITY, AND (4)
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Robert Threat, (“Petitioner”), confined at the Brooks Correctional Facility in
Muskegon Heights, Michigan, filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his
conviction and sentence for second-degree criminal sexual conduct, Mich. Comp.
Laws § 750.520c(1)(a); and being a fourth felony habitual offender, Mich. Comp.
Laws § 769.12. For the reasons stated below, the petition for writ of habeas corpus
is DENIED WITH PREJUDICE.

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I. BACKGROUND
Petitioner was convicted following a bench trial in the Wayne County
Circuit Court.
LS was the victim. 1 LS was six years old at the time of the incident. LS
lived with her mother and petitioner in Detroit. (Tr. 3/22/12, pp. 19, 21, 26). LS
testified that petitioner “touched” her on three different days. LS indicated that
petitioner pulled her pants down and “rubbed his penis” on her “private” area. LS
saw petitioner’s penis, noting that it looked “[w]rinkled.” The assault ended when
LS’s mother entered the room. Petitioner ran to the bathroom and LS pulled up her
pants. (Id., pp. 20-26). LS admitted that her mother helped her remember what she
needed to testify to in court. LS indicated that her mother “told [her] to say that he
did it three times,” and that her mother instructed her to use the word “penis.” (Id.,
pp. 42-45).
A nurse who examined LS testified that the victim informed her that she
“was touched on [her] private parts with his wee-wee.” (Id., p. 95.) A video of a
forensic interview with LS was admitted into evidence. (Tr. 3/28/12, pp. 3, 5). The
prosecution also presented evidence that petitioner tried to discourage LS’s mother

1

Because the victim is a minor individual, the Court uses her initials only,
pursuant to Fed. R. Civ. P. 5.2(a)(3).
2

from coming to court during a jailhouse phone conversation. (Tr. 3/22/12, pp. 7175).
Petitioner was found guilty of one count of second-degree criminal sexual
conduct and not guilty of two additional counts. In finding petitioner guilty, the
judge indicated that he found the victim to be credible. (Tr. 3/28/12, pp. 29-32).
Petitioner’s conviction was affirmed on appeal, although the case was
remanded to the trial court for correction of the pre-sentence report. People v.
Threat, No. 310331, 2013 WL 3853209 (Mich. Ct. App. July 25, 2013); lv. den.
495 Mich. 915, 840 N.W. 2d 355 (2013); reconsideration den. 495 Mich. 997, 845
N.W. 2d 97 (2014).
Petitioner filed a post-conviction motion for relief from judgment pursuant
to Mich.Ct.R. 6.500 et seq., which was denied. People v. Threat, No. 11-012857FH (Wayne Cty.Cir.Ct., Oct. 10, 2014). The Michigan Court of Appeals held
petitioner’s post-conviction appeal in abeyance with respect to his court costs
claim and denied relief with respect to his remaining claims. People v. Threat, No.
325069 (Mich.Ct.App. Feb. 25, 2015). The Michigan Court of Appeals ultimately
denied petitioner relief on his remaining claim, after the Michigan Court of
Appeals in another case concluded that courts have the authority to impose court
costs on defendants in criminal cases. People v. Threat, No. 325069 (Mich.Ct.App.
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May 21, 2015). The Michigan Supreme Court denied petitioner leave to appeal.
People v. Threat, 500 Mich. 945, 890 N.W.2d 665 (2017), reconsideration den.,
500 Mich.1004, 895 N.W.2d 172 (2017).
Petitioner filed a petition for writ of habeas corpus, raising the following
claims:
I. Did the trial court abuse its discretion in denying defendant’s motion
for a new trial?
II. Should the presentence report be corrected and the corrected report
sent to the Department of Corrections?
III. Will enforcement of the trial court order to pay court-appointed
attorney fees cause manifest hardship to defendant and his family?
IV. Ground four. (Claims raised by petitioner in his post-conviction
6.500 motion):
I. The assessment of court costs as part of [petitioner’s] sentence should
be vacated, as those costs are not authorized to be imposed in this case
by a specific legislative act.
II. Defendant must be resentenced where prior record variable[s] 1, 2,
and 5 were scored erroneously, as incorrect scoring violates defendant’s
due process rights at sentencing under the state and federal constitution,
US CONST, AMS V, VI, XIV; CONST 1963, ART 1, §§ 17, 20.
III. Appellate counsel failed to conduct an independent investigation or
effectively communicate with [petitioner]; subsequently had no idea of
issue [petitioner] wished raised or raise the challenge to the inaccurate
PRV scoring, when he challenged other inaccuracies within the PSIR in
[petitioner’s] appeal of right, or challenging the effective assistance of
counsel on his only appeal of right. US CONST, AM VI, CONST 1963,
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AM VI, CONST 1963 ART 1, § 17.
IV. Trial counsel was constitutionally ineffective for failing to challenge
inaccurate scoring of prior record variables, violating [petitioner’s] due
process rights under US CONST, AMS VI, XIV, CONST 1963, AM VI,
CONST 1963 ART 1,§§ 17, 20.
Petitioner subsequently filed additional pleadings. The Court construed this
as a motion to amend the petition for writ of habeas corpus and granted the motion.
In his amended petition, petitioner raises the following claims which this Court
renumbers for purposes of judicial clarity to be consistent with the enumeration of
the original claims:
V. Following a bench trial by a verdict of guilty on one count out of
three count(s) of criminal sexual conduct second degree, where
defendant was denied due process of law and the equal protection of the
laws as guaranteed by the Fourteenth Amendment of the United States
Constitution when the trial court infringed upon his due process
protections as guaranteed under both state and federal constitutions [U.S.
Const, Ams V, VI and XIV; Const 1963, Art. 1 §§ 17, 20] where a
reasonable jury could find that the City of Detroit Police Department
violated Mr. Threat’s constitutional right to be free from arrest without
probable cause.
VI. Defendant was denied due process of law and equal protection of the
laws as guaranteed by the Fourteenth Amendment of the United States
Constitution when the trial denied resentencing for CSC2 without
enhancement for fourth offender habitual status because the record failed
to establish conclusively that the written notice of intent to enhance was
provided within twenty-one days of arraignment as required by MCL §
769.13 violated the rule announced in People v Fountain, 407 Mich 96;
282 NW2d 168 (1979).

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VII. Pursuant to Michigan Rules of Evidence Rule 611(A) Mr. Threat
was denied due process of the law and equal protection of the laws as
guaranteed by the Fourteenth Amendment to the United States
Constitution, where the trial court erroneously erred when exercising
control over the mode and order of interrogating “excited utterance”
when the Fifth Amendment prohibits the government from treating a
Defendant’s exercise of his right to remain silent at trial as substantive
evidence of guilt. U.S.C.A. Const. Amend. 5.
VIII. Defendant denied due process of law and equal protection of the
laws as guaranteed by the Fourteenth Amendment of the United States
Constitution where that the prosecutor’s closing statements served to
improperly bolster/vouch for the credibility of both Ms. Smith and Ms.
Brooks which represented special knowledge of the prosecution
regarding MCL § 750.520H, whether Mr. Threat was ever given his
Miranda rights and, that there would be monetary benefit if there was
not a follow through on the prosecution—any of the evidence that was
allowed in that there was a protective services investigation as a result
of the hospital visit constitutes a wrongful incarceration.
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
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(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
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly.” Id. at 410-11. “[A] state court’s determination that a claim lacks
merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’
on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Therefore, 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. A habeas
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petitioner should be denied relief as long as it is within the “realm of possibility”
that fairminded jurists could find the state court decision to be reasonable. See
Woods v. Etherton, 136 S. Ct. 1149, 1152 (2016).
III. DISCUSSION
A. Claims # 1 and # 7. The excited utterance claims.
Petitioner first argues in his first and seventh claims that the trial judge
should have granted him a new trial because he improperly admitted under the
excited utterance exception to the hearsay rule the victim’s out-of-court statement
to her mother that petitioner touched her private parts with his penis.
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). A federal court is limited in federal habeas review to deciding whether a
state court conviction violates the Constitution, laws, or treaties of the United
States. Id. Thus, errors in the application of state law, especially rulings regarding
the admissibility of evidence, are usually not questioned by a federal habeas court.
Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000). What is or is not hearsay
evidence in a state court trial is governed by state law. See Johnson v. Renico, 314
F. Supp. 2d 700, 705 (E.D. Mich. 2004)(internal citations omitted). Petitioner’s
claim that the trial court improperly admitted the victim’s statement to her mother
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under the excited utterance exception to the hearsay rule presents a state
evidentiary law issue that is not cognizable on federal habeas review. See e.g.
Smith v. Jones, 326 F. App’x. 324, 330 (6th Cir. 2009); Williams v. White, 183 F.
Supp. 2d 969, 975-77 (E.D. Mich. 2002).
Petitioner does not allege a violation of his Sixth Amendment right to
confrontation nor can he because the victim testified at trial and was subjected to
cross-examination. See People v. Threat, 2013 WL 3853209, p. 1. An inquiry into
the reliability of a hearsay statement is not required for Confrontation Clause
purposes when the hearsay declarant is present at trial and subject to unrestricted
cross-examination. See United States v. Owens, 484 U.S. 554, 560 (1988). In this
situation, “the traditional protections of the oath, cross-examination, and
opportunity for the jury to observe the witness’ demeanor satisfy the constitutional
requirements.” Id. (internal citations omitted). As the victim testified at
petitioner’s trial and was subject to cross-examination, the admission of the
victim’s hearsay statement as an excited utterance did not violate petitioner’s
Sixth Amendment right to confrontation. See Shannon v. Berghuis, 617 F. Supp.
2d 596, 604 (W.D. Mich. 2008). Petitioner is not entitled to relief on these claims.

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B. Claim # 1. The great weight of the evidence.
Petitioner also appears to argue in his first claim that a new trial should
have been granted because the verdict went against the great weight of the
evidence.
A federal habeas court cannot grant habeas relief because a state conviction
is against the great weight of the evidence. Cukaj v. Warren, 305 F. Supp. 2d 789,
796 (E.D. Mich. 2004); Dell v. Straub, 194 F. Supp. 2d 629, 648 (E.D. Mich.
2002). See also Nash v. Eberlin, 258 F. App’x. 761, 764, n.4 (6th Cir. 2007)(“[A]
manifest-weight-of-the-evidence argument is a state-law argument . . . .”); Artis v.
Collins, 14 F. App’x. 387 (6th Cir. 2001)(declining to grant certificate of
appealability to habeas petitioner on claim that jury’s verdict was against the
manifest weight of the evidence). The test for habeas relief is not whether the
verdict was against the great weight of the evidence, but whether there was any
evidence to support it. Dell, 194 F. Supp. 2d at 648. As long as there is sufficient
evidence to convict the petitioner, the fact that the verdict went against the great
weight of the evidence does not entitle him to habeas relief. Id. Petitioner does
not contend that the evidence, if believed, was sufficient to convict, only that the
verdict went against the great weight of the evidence. Petitioner is not entitled to
relief on this claim.
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C. Claim # 2. The Pre-Sentence Investigation Report claim.
Petitioner in his second claim alleges inaccuracies in his pre-sentence
investigation report.
There is no federal constitutional right to a pre-sentence investigation and
report. See Bridinger v. Berghuis, 429 F. Supp. 2d 903, 909 (E.D. Mich. 2006);
Allen v. Stovall, 156 F. Supp. 2d 791, 797 (E.D. Mich. 2001). Therefore, the mere
presence of hearsay or inaccurate information in a pre-sentence report does not
constitute a denial of due process so as to entitle a petitioner to habeas relief.
Allen, 156 F. Supp. 2d at 797. To the extent that petitioner claims that the trial
court failed to correct the inaccuracies in his pre-sentence report, in violation of
Mich.Ct.R. 6.429, this would be non-cognizable in federal habeas review, because
it involves an issue of state law. See e.g. Koras v. Robinson, 257 F. Supp. 2d 941,
955 (E.D. Mich. 2003); aff’d in part and rev’d in part on other grds, 123 F.
App’x. 207 (6th Cir. 2005). Petitioner is not entitled to relief on this claim.
D. Claims # 3 and # 4 (I). The attorney fee/court cost claims.
The Court considers petitioner’s third claim and the first part of his fourth
claim together because they are interrelated. In his third claim, petitioner alleges
that the judge erred in ordering petitioner to reimburse the court for the cost of his
court-appointed attorney. In the first part of his fourth claim, petitioner alleges
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that the judge erred in imposing court costs upon him at sentencing.
Petitioner is unable to challenge the imposition of fines and costs by the
sentencing court in a petition for writ of habeas corpus. Where a habeas petitioner
is not claiming the right to be released but is challenging the imposition of a fine
or other costs, he or she may not bring a petition for writ of habeas corpus. See
United States v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995). See also U.S. v. Mays,
67 F. App’x. 868, 869 (6th Cir. 2003)(district court lacked subject matter
jurisdiction over defendant’s § 2255 post-judgment motion to reduce or rescind
fine levied in criminal judgment; defendant was not in custody, as required in a
motion to vacate sentence or a petition for a writ of habeas corpus). This Court
lacks subject matter over petitioner’s claim that the state court unconstitutionally
required him to pay court-appointed counsel’s fees, because petitioner’s claim
does not challenge his confinement. See Washington v. McQuiggin, 529 F. App’x.
766, 772–73 (6th Cir. 2013). Petitioner also cannot challenge the imposition of
court costs in his petition. Accordingly, petitioner is not entitled to habeas relief
on his third claim and the first part of his fourth claim.
E. Claim # 4(II). The sentencing guidelines claim.
In the second part of his fourth claim, petitioner alleges that the judge
incorrectly calculated his sentencing guidelines.
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Petitioner’s claim that the state trial court incorrectly scored his sentencing
guidelines range under the Michigan Sentencing Guidelines is non-cognizable on
habeas review, because it is basically a state law claim. See Tironi v. Birkett, 252
F. App’x. 724, 725 (6th Cir. 2007); Howard v. White, 76 F. App’x. 52, 53 (6th
Cir. 2003); Robinson v. Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich. 2001).
Errors in the application of state sentencing guidelines cannot independently
support habeas relief. See Kissner v. Palmer, 826 F.3d 898, 904 (6th Cir. 2016).
Petitioner’s claim that the state trial court improperly departed above the correct
sentencing guidelines range would thus not entitle him to habeas relief, because
such a departure does not violate any of the petitioner’s federal due process rights.
Austin v. Jackson, 213 F.3d 298, 301 (6th Cir. 2000).
F. Claims # 4(III) and (IV). The ineffective assistance of counsel
claims.
In the final two parts of his fourth claim, petitioner argues that trial counsel
was ineffective for failing to object to the scoring of the sentencing guidelines and
that appellate counsel was ineffective for failing to raise on petitioner’s appeal of
right the issue of the guidelines scoring or trial counsel’s ineffectiveness in failing
to challenge the guidelines. Petitioner raised his ineffective assistance of trial and
appellate counsel claims and his related sentencing guidelines claim in his post-

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conviction motion for relief from judgment, which was denied by the trial and
appellate courts.
To show that he or she was denied the effective assistance of counsel under
federal constitutional standards, a defendant must satisfy a two prong test. First,
the defendant must demonstrate that, considering all of the circumstances,
counsel’s performance was so deficient that the attorney was not functioning as
the “counsel” guaranteed by the Sixth Amendment. Strickland v. Washington, 466
U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong
presumption that counsel’s behavior lies within the wide range of reasonable
professional assistance. Id. In other words, petitioner must overcome the
presumption that, under the circumstances, the challenged action might be sound
trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that
such performance prejudiced his defense. Id. To demonstrate prejudice, the
defendant must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The Strickland standard applies as well to claims of
ineffective assistance of appellate counsel. See Whiting v. Burt, 395 F.3d 602, 617
(6th Cir. 2005).

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In this case, the state trial and appellate courts, in rejecting petitioner’s postconviction motion for relief from judgment, appeared to conclude that there was a
factual basis for the scoring of petitioner’s sentencing guidelines.
As the Eleventh Circuit noted, when the alleged attorney error involves the
failure to object to a violation of state law that does not involve the enforcement
of federal constitutional rights or interests, there is no Supreme Court case which
prevents a federal court sitting in habeas review of a state court conviction from
looking “to whether there is a reasonable probability that the do-over proceeding
state law provides would reach a different result.” See Hammond v. Hall, 586 F.3d
1289, 1340 (11th Cir. 2009).
The trial judge and the Michigan appellate courts rejected petitioner’s
sentencing guidelines claim on post-conviction review, as well as his related
ineffective assistance of counsel claims. Petitioner is therefore unable to show
that he was prejudiced by his trial or appellate counsel’s purported ineffectiveness
in failing to challenge the scoring of his sentencing guidelines at sentencing or on
direct appeal. See e.g. Coleman v. Curtin, 425 F. App’x. 483, 485 (6th Cir. 2011).
If “one is left with pure speculation on whether the outcome of ... the penalty
phase could have been any different,” there has been an insufficient showing of
prejudice. Baze v. Parker, 371 F.3d 310, 322 (6th Cir. 2004). Because petitioner
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has offered no evidence to show that the state trial court judge would have been
inclined to impose a lesser sentence or that the Michigan appellate courts were
inclined to reverse his sentence, petitioner is unable to show that he was
prejudiced by his trial or appellate counsel’s purported ineffectiveness in failing to
challenge the scoring of his sentencing guidelines. See Spencer v. Booker, 254 F.
App’x. 520, 525-26 (6th Cir. 2007). Petitioner is not entitled to relief on his
ineffective assistance of counsel claims.
G. Claim # 5. The deficient arrest warrant/complaint claim.
Petitioner in his fifth claim argues that the arrest warrant and complaint
were deficient because they were not supported by probable cause.
“An illegal arrest, without more, has never been viewed as a bar to
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 “[t]he ‘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
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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.” 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 would not prevent him from being
prosecuted and convicted of this offense. Petitioner is not entitled to relief on his
fifth claim.
H. Claim # 6. The habitual offender claim.
Petitioner asks this Court to vacate his habitual offender conviction because
the habitual offender notice was untimely filed.
Petitioner’s claim involving the application of Michigan’s habitual offender
laws is non-cognizable on habeas review, because it involves an application of
state law. See Rodriguez v. Jones, 625 F. Supp. 2d 552, 569 (E.D. Mich. 2009);
Grays v. Lafler, 618 F. Supp. 2d 736, 751 (W.D. Mich. 2008). Petitioner’s claim
that he received inadequate notice of the habitual offender charge under Michigan
law thus does not state a claim that is cognizable in federal habeas review. See
Tolbert v. LeCureaux, 811 F. Supp. 1237, 1240-41 (E.D. Mich. 1993). Due
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process does not require advance notice that a trial on a substantive criminal
charge will be followed by an habitual offender charge. Due process only requires
that a defendant be given a reasonable notice and opportunity to be heard relative
to the habitual offender charge. Oyler v. Boles, 368 U.S. 448, 452 (1962).
Petitioner did not dispute, either at his sentencing, or more importantly, in
his habeas petition, that he had prior convictions that would make him eligible to
be sentenced as an habitual offender, nor did he object or seek a continuance
based on the absence of advance notice of the sentence enhancement. Therefore,
petitioner cannot complain that he was denied due process. Oyler, 368 U.S. at
453-54. Petitioner is not entitled to habeas relief on his sixth claim.
I. Claim # 8. The prosecutorial misconduct claim.
Petitioner next claims that the prosecutor committed misconduct when she
vouched for the credibility of the witnesses in her closing argument.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004). A prosecutor’s
improper comments will be held to violate a criminal defendant’s constitutional
rights only if they “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181
(1986)(internal quotation marks omitted)(quoting Donnelly v. DeChristoforo, 416
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U.S. 637, 643 (1974)). Prosecutorial misconduct will thus form the basis for
habeas relief only if the conduct was so egregious as to render the entire trial
fundamentally unfair based on the totality of the circumstances. Id. at 643-45. To
obtain habeas relief on a prosecutorial misconduct claim, a petitioner must show
that the state court’s rejection of the prosecutorial misconduct claim “was so
lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.” Parker v.
Matthews, 567 U.S. 37, 48 (2012).
Petitioner was convicted at a bench trial. Federal courts presume that a
judge, as the trier of fact, “can readily identify credible evidence, give proper
weight to the evidence, and understand what law is relevant to his or her
deliberations.” Hill v. Anderson, 881 F.3d 483, 510 (6th Cir. 2018)(internal
citations omitted). Petitioner is not entitled to relief on his prosecutorial
misconduct claim because he presented no evidence that the judge who tried his
case “was incapable of discerning what constitutes admissible evidence and
parsing such evidence out from any inflammatory or irrelevant comments by the
prosecutor.” Id. (footnotes omitted).

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J. Petitioner’s remaining claims are conclusory.
Petitioner’s remaining allegations that he raises in his amended petition are
somewhat difficult to understand. Petitioner alleges a violation of Miranda v.
Arizona, 384 U.S. 436 (1966), a violation of his right to remain silent, and errors
involving a protective services investigation.
Conclusory allegations by a habeas petitioner, without any evidentiary
support, do not provide a basis for habeas relief. See, e.g., Washington v. Renico,
455 F.3d 722, 733 (6th Cir. 2006)(bald assertions and conclusory allegations do
not provide sufficient ground to warrant requiring an evidentiary hearing in a
habeas proceeding); Workman v. Bell, 160 F.3d 276, 287 (6th Cir.
1998)(conclusory allegations of ineffective assistance of appellate counsel do not
warrant habeas relief). Petitioner is not entitled to relief on his remaining claims
because they are conclusory or unsupported.
K. The motions to strike the answer are DENIED.
Petitioner filed two motions to strike the answer on the ground that it was
not timely filed.
On September 12, 2017, this Court granted petitioner’s motion to amend the
petition and ordered that the original and amended petitions be served on
respondent. Respondent was ordered to file an answer and the Rule 5 materials
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within one hundred and eighty days of the order. (See Dkt. # 7, Pg ID 71-72). The
answer and the Rule 5 materials were filed on March 1, 2018, which was within
one hundred and eighty days of the Court’s September 12, 2017 order. (See Dkts.
# 10, 11). The motions to strike are accordingly denied.
The Court denies the petition for writ of habeas corpus. The Court also
denies a certificate of appealability. 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 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.

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For the reasons stated in this opinion, the Court denies petitioner a
certificate of appealability because reasonable jurists would not find this Court’s
assessment of petitioner’s claims to be debatable or wrong. Johnson v. Smith, 219
F. Supp. 2d 871, 885 (E.D. Mich. 2002). The Court also denies petitioner leave to
appeal in forma pauperis, because the appeal would be frivolous. Allen v. Stovall,
156 F. Supp. 2d at 798.
IV. CONCLUSION
Accordingly, the Court DENIES WITH PREJUDICE the petition for a
writ of habeas corpus. The Court DENIES the motions to strike the answer.
[Dkts. ## 13, 15). The Court further DENIES a certificate of appealability and
leave to appeal in forma pauperis.
SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: May 30, 2018

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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 30, 2018.

s/Deborah Tofil
Case Manager

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