Williams v. Trierweiler
Filing
24
OPINION AND ORDER DENYING 22 MOTION for Certificate of Appealabilty and to Appoint Counsel and DENYING AS MOOT 21 Application to Proceed Without Prepaying Fees or Costs filed by Dashean Keith Williams. Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
____________________________________________________________________
DASHEAN KEITH WILLIAMS,
Petitioner,
v.
Case No. 17-13995
CATHERINE BAUMAN,
Respondent.
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OPINION AND ORDER DENYING PETITIONER’S MOTION FOR A CERTIFICATE
OF APPEALABILITY AND FOR APPOINTMENT OF COUNSEL AND DENYING
AS MOOT PETITIONER’S MOTION TO PROCEED IN FORMA PAUPERIS
AND FOR WAIVER OF ALL FEES AND COSTS
Petitioner Dashean Keith Williams, acting pro se, has appealed the court’s denial
of his amended habeas corpus petition, which challenged his murder and felony-firearm
convictions. (See ECF Nos. 18, 20.) Petitioner’s first habeas claim alleged that the trial
court violated his right to due process by threatening a prosecution witness with perjury
when the witness denied seeing Petitioner shoot the victim. Petitioner argued in the
alternative that trial counsel was ineffective for failing to object to the trial court’s
statements to the witness.
Petitioner’s second habeas claim alleged that the prosecutor erred by introducing
three witnesses’ prior inconsistent statements that incriminated Petitioner. Petitioner
argued in the alternative that trial counsel was ineffective for failing to object to the
evidence or for failing to either request a jury instruction on the limited use of prior
inconsistent statements or object to the absence of such an instruction. (ECF No. 17,
PageID.1302-1303.)
On January 11, 2021, the court denied the amended habeas corpus petition,
declined to issue a certificate of appealability, and granted Petitioner leave to appeal in
forma pauperis. (ECF No. 18.) Petitioner appealed the court’s judgment on February 4,
2021. (ECF No. 20.) Now before the court are Petitioner’s motion to proceed in forma
pauperis and for waiver of fees and costs, (ECF No. 21), and Petitioner’s motion for a
certificate of appealability and appointment of counsel. (ECF No. 22.) For the reasons
provided below, the court will deny both motions.
I. DISCUSSION
A. Motion to Proceed In Forma Pauperis and for Waiver of Fees and Costs
In his first motion, Petitioner asks the court to waive all fees and costs in this
case. (ECF No. 21, PageID.1475-1476.) However, Petitioner paid the filing fee for his
district court case, (see January 8, 2018 Docket Entry), and the court has already
granted Petitioner permission to proceed in forma pauperis on appeal. (ECF No.,
PageID.1442, 1470.) Accordingly, the court denies as moot Petitioner’s motion to
proceed in forma pauperis and for waiver of fees and costs.
B. Motion for a Certificate of Appealability and for Appointment of Counsel
In his second motion, Petitioner seeks a certificate of appealability and
appointment of counsel. He contends that he raised substantial issues in his habeas
brief and that he should be permitted to have the Sixth Circuit Court of Appeals review
his claims. (ECF No. 22, PageID.1479.)
Petitioner points to language in the court’s January 11 opinion where the court
stated that his claims were not entirely frivolous and that an appeal could be taken in
good faith. The court used that language, however, when determining whether
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Petitioner could appeal the court’s judgment in forma pauperis. (ECF No. 18,
PageID.1470.)
“The standard for issuing a certificate of appealability has a higher threshold than
the standard for granting in forma pauperis status, which requires showing that the
appeal is not frivolous.” Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)
(Rosen, J.) (citing United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir.1997)). A
certificate of appealability, on the other hand, 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). “A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
When a district court rejects a 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 debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). In contrast, “[w]hen the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying constitutional claim, a
[certificate of appealability] should issue when the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id.
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1. The Trial Court’s Alleged Threat
The court determined in its January 11 dispositive opinion that Petitioner’s claim
about the trial judge’s statements to a witness about perjury was procedurally defaulted.
The reasons for that conclusion were that Petitioner did not make a contemporaneous
objection to the trial court’s statements to the witness, the Michigan Court of Appeals
reviewed Petitioner’s claim for “plain error,” and the contemporaneous-objection rule
was an adequate and independent state ground for denying review of a federal
constitutional claim. (ECF No. 18, PageID.1451-1453.) The court determined that
Petitioner had failed to show cause for his procedural default and that a miscarriage of
justice would not result from the court’s failure to address the merits of his claim. (Id. at
PageID.1453-1458.) The court found no merit in Petitioner’s claim about trial counsel’s
failure to object to the trial judge’s comments to the witness, because the comments
were proper, and an objection would have lacked merit. (Id. at PageID.1458-1459.)
Reasonable jurists would not find the court’s procedural ruling debatable. Slack,
529 U.S. at 484. Reasonable jurists also would not find it debatable whether Petitioner
stated a valid claim of the denial of a constitutional right. Id. Additionally, reasonable
jurists would not find the court’s assessment of Petitioner’s constitutional claim about
trial counsel debatable or wrong. Id. The court, therefore, declines to issue a certificate
of appealability on Petitioner’s claims about the trial judge’s remarks to a witness and
trial counsel’s failure to object to the remarks.
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2. The Evidentiary Claim and Trial Counsel’s Alleged Errors
Petitioner’s second habeas claim alleged that the prosecutor erred by introducing
three witnesses’ prior inconsistent statements. The court determined that this claim was
procedurally defaulted and that it lacked merit. (ECF No. 18, PageID.1459-1468.) For
all the reasons given in the court’s January 11 opinion, reasonable jurists could not
disagree with the Court’s resolution of Petitioner’s claim, nor conclude that the issue
deserves encouragement to proceed further. Slack, 529 U.S. at 484.
Petitioner’s related claim was that his trial attorney was ineffective for failing to
either request a jury instruction on the proper use of prior inconsistent statements or
object to the lack of an instruction on prior inconsistent statements. The court rejected
this claim because trial counsel’s omissions did not prejudice Petitioner. (ECF No. 18,
PageID.1468-69.) Reasonable jurists would agree. Slack, 529 U.S. at 484. The court,
therefore, declines to grant a certificate of appealability on Petitioner’s related claim
about trial counsel.
Finally, although Petitioner seeks appointment of counsel on appeal, that request
should be directed to the Court of Appeals, where Petitioner’s case presently under
review. (See ECF No. 20.) Accordingly, the court declines to appoint counsel to assist
Petitioner with his appeal.
II. CONCLUSION
IT IS ORDERED that Petitioner’s Motion for a Certificate of Appealability and for
Appointment of Counsel (ECF No. 22) is DENIED.
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IT IS FURTHER ORDERED that Petitioner’s Motion to Proceed In Forma
Pauperis and for Waiver of Fees and Costs (ECF No. 21) is DENIED as moot.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: April 23, 2021
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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, April 23, 2021, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
(810) 292-6522
S:\Cleland\Cleland\JUDGE'S DESK\C2 ORDERS\1713995.WILLIAMS.MotionforCertificateofAppealabilityandAppointmentofCounselandMotiontoProceedIFP.BH.RMK.docx
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