Moore v. Horton
Filing
13
OPINION and ORDER Denying the Petition for a Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARWIN EUGENE MOORE, #534358,
Petitioner,
v.
CASE NO. 17-CV-14205
HONORABLE MARK A. GOLDSMITH
CONNIE HORTON,
Respondent.
___________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.
Introduction
This is a pro se habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner
Darwin Eugene Moore (APetitioner@) challenges his concurrent sentences of 47 to 85 years
imprisonment and 10 to 15 years imprisonment arising from his convictions on four counts of firstdegree criminal sexual assault (“CSC-1”), Mich. Comp. Laws § 750.520b, and one count of
second-degree criminal sexual conduct (“CSC-2”), Mich. Comp. Laws § 750.520c, which were
imposed following a jury trial and re-sentencing in the Wayne County Circuit Court. For the
reasons set forth, the Court concludes that Petitioner’s claims lack merit and the petition must be
denied. The Court also concludes that a certificate of appealability and leave to proceed in forma
pauperis on appeal must be denied.
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I.
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Facts and Procedural History
Petitioner=s convictions arise from his sexual assault of his daughter over a lengthy period
of time during her childhood. The Michigan Court of Appeals described the relevant facts, which
are presumed correct on habeas review, 28 U.S.C. ' 2254(e)(1); Wagner v. Smith, 581 F.3d 410,
413 (6th Cir. 2009), as follows:
Defendant began sexually assaulting the victim, his biological daughter, when she
was approximately two years old. She first remembered sexual contact when she
was bathing, and defendant inserted his fingers in her genital region. She also
recalled a time when she was younger than 13 years old when defendant took her
into a dark room and made her perform oral sex on him, which included forcing her
to bite his penis. She testified that this occurred several times before she was 13
years old. Defendant also engaged in other sexual contact, which included touching
her buttocks. All of this activity occurred in Wayne County.
The victim also testified that defendant would transport her to where he worked or
lived in order to perform oral sex on her and force her to perform oral sex on him.
The victim testified that defendant would rub his penis in her vaginal opening,
penetrating only through the lips. When asked where some of these events occurred,
the victim testified: ‘It was Taylor, Washtenaw County, Ypsilanti, Ann Arbor, all
around. Every year he would move. And he would take me to his home and he
would do these things in his home.’
The victim was later recalled to testify, clarifying the location of the sexual assaults.
She testified that when she was under the age of 13, she performed oral sex on
defendant, he performed oral sex on her, he inserted his fingers into her vagina, he
touched her anus and breast, and he rubbed his penis in her genital opening all in
the city of Inkster, Michigan. She further clarified that during the ages of 13, 14,
and 15, defendant would pick her up and move her to different cities, which
included Taylor, Michigan, and would perform oral sex on her, force her to perform
oral sex on him, insert his fingers into her vagina, place his penis in and around her
vagina, and touch her breast and anus.
The prosecution also presented a witness, defendant’s first cousin, who testified
that defendant began sexually assaulting her when she was approximately 12 years
old. This included performing oral sex on her, sodomizing her, and placing his penis
inside of her vagina. The witness stated that defendant raped her and she became
pregnant when she was 14 years old. A forensic scientist testified that defendant
was the father of the witness’s child.
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Defendant was convicted of six counts of first-degree criminal sexual conduct and
one count of second-degree criminal sexual conduct. Defendant was sentenced to
concurrent sentences of 47 years and 6 months to 85 years for each count.
People v. Moore, No. 309651, 2013 WL 2459867, *1 (Mich. Ct. App. June 6, 2013).
Following his convictions and sentencing, Petitioner filed an appeal of right with the
Michigan Court of Appeals raising claims concerning the bind over/charging information; the
prosecution’s recall of the victim, who had not been sequestered; an amendment to the information;
the conduct of the prosecutor; the effectiveness of trial counsel; and the validity of his sentence.
The court affirmed his convictions but remanded for resentencing. Id. at 2-8. Petitioner filed an
application for leave to appeal with the Michigan Supreme Court, which vacated one of Petitioner=s
CSC-1 convictions but denied leave to appeal in all other respects. People v. Moore, 839 N.W.2d
475 (Mich. 2013).
On remand, the trial court resentenced Petitioner to concurrent terms of 47 to 85 years
imprisonment on the remaining four CSC-1 convictions and 10 to 15 years imprisonment on the
CSC-2 conviction. Petitioner then filed another appeal of right with the Michigan Court of
Appeals, challenging his sentence. The court denied relief and affirmed Petitioner’s sentences.
People v. Moore, No. 326663, 2016 WL 4268245, at *1-2 (Mich. Ct. App. Aug. 11, 2016).
Petitioner also filed an application for leave to appeal with the Michigan Supreme Court, which
was denied in a standard order. People v. Moore, 892 N.W.2d 359 (Mich. 2017).
Petitioner thereafter filed his federal habeas petition raising the following claim:
The trial court’s sentences B which were departures from the judicial guidelines’
ranges for the CSC-1 counts B were disproportionate and an abuse of discretion and
were based upon inaccurate information and mistakes of fact and law in violation
of his federal and state due process rights. Further, trial counsel rendered
ineffective assistance in failing to object to the incorrect scoring.
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Respondent has filed an answer to the habeas petition contending that it should be denied for lack
of merit.
III.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28
U.S.C. ' 2241 et seq., sets forth the standard of review that federal courts must use when
considering habeas petitions brought by prisoners challenging their state court convictions. The
AEDPA provides in relevant part:
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.
28 U.S.C. ' 2254(d) (1996).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule
that contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of
facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16
(2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)); see also Bell v.
Cone, 535 U.S. 685, 694 (2002). “[T]he ‘unreasonable application’ prong of § 2254(d)(1)
permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing
legal principle from [the Supreme] Court but unreasonably applies that principle to the facts of
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petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at
413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court find a state court’s
application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision must have
been more than incorrect or erroneous. The state court’s application must have been ‘objectively
unreasonable.’” Wiggins, 539 U.S. at 520-521 (citations omitted); see also Williams, 529 U.S.
at 409. 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, 521 U.S. at 333, n. 7); 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)). The Supreme Court has emphasized “that even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must determine what
arguments or theories supported or . . . could have supported, the state court’s decision; and then
it must ask whether it is possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision” of the Supreme Court. Id. Thus, in order
to obtain habeas relief in federal court, a state prisoner must 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;
see also White v. Woodall, 572 U.S. 415, 419-420 (2014). Federal judges “are required to afford
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state courts due respect by overturning their decisions only when there could be no reasonable
dispute that they were wrong.” Woods v. Donald, 575 U.S. 312, 316 (2015).
A habeas
petitioner cannot prevail as long as it is within the “realm of possibility” that fairminded jurists
could find the state court decision to be reasonable. Woods v. Etherton, -- U.S. --, 136 S. Ct.
1149, 1152 (2016).
Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether
the state court’s decision comports with clearly established federal law as determined by the
Supreme Court at the time the state court renders its decision. Williams, 529 U.S. at 412; see
also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the Supreme Court “has held
on numerous occasions that it is not ‘an unreasonable application of clearly established Federal
law’ for a state court to decline to apply a specific legal rule that has not been squarely established
by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 123 (2008) (per curiam)); Lockyer,
538 U.S. at 71-72. Section 2254(d) “does not require a state court to give reasons before its
decision can be deemed to have been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100.
Furthermore, it “does not require citation of [Supreme Court] cases—indeed, it does not even
require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the
state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also Mitchell,
540 U.S. at 16. The requirements of clearly established law are to be determined solely by
Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly established
Federal law as determined by the Supreme Court’” and it cannot provide the basis for federal
habeas relief. Parker v. Matthews, 567 U.S. 37, 48-49 (2012) (per curiam); see also Lopez v.
Smith, 574 U.S. 1, 2 (2014) (per curiam). The decisions of lower federal courts, however, may
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be useful in assessing the reasonableness of the state court’s resolution of an issue. Stewart v.
Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th
Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002).
A state court’s factual determinations are presumed correct on federal habeas review.
See 28 U.S.C. ' 2254(e)(1). A habeas petitioner may rebut this presumption only with clear and
convincing evidence. Warren v. Smith, 161 F.3d 358, 360-361 (6th Cir. 1998). Moreover,
habeas review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011).
IV.
Discussion
A.
Sentencing Claims
Petitioner first asserts that he is entitled to habeas relief because his CSC-1 sentences are
disproportionate and based upon inaccurate information in violation of his due process rights
under the federal and state constitutions.
Respondent contends that these claims are not
cognizable upon habeas review and that they lack merit.
A sentence imposed within the statutory limits is generally not subject to federal habeas
review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797
(E.D. Mich. 1999). Claims that arise out of a state trial court’s sentencing decision are not
normally cognizable upon habeas review unless the petitioner can show that the sentence imposed
exceeds the statutory limits or is wholly unauthorized by law. Lucey v. Lavigne, 185 F. Supp.
2d 741, 745 (E.D. Mich. 2001). Petitioner’s sentences of 47 to 85 years imprisonment are within
the statutory maximum sentences of life imprisonment for CSC-1 and are authorized by state law.
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See Mich. Comp. Laws §§ 750.520b; 769.10. Consequently, his sentences are insulated from
habeas review absent a federal constitutional violation.
Petitioner asserts that his CSC-1 sentences are disproportionate. The Michigan Court of
Appeals denied Petitioner relief on this claim, ruling that his sentences are not disproportionate
and that the trial court did not abuse its discretion at resentencing. The court reasoned that
Petitioner “sexually abused his biological daughter for many years and exploited his family
relationship with his daughter and other victims for sexual purposes.” Moore, 2016 WL 4268245
at *2.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application of federal law or the facts. To warrant federal habeas relief, a petitioner
must show that he or she is “in custody in violation of the Constitution or laws or treaties of the
United States.”
28 U.S.C. ' 2254(a).
Petitioner’s claim that his CSC-1 sentences are
disproportionate is not cognizable on federal habeas review, because it is a state law claim. See
Harmelin v. Michigan, 501 U.S. 957, 965 (1991) (ruling that the Eighth Amendment does not
require strict proportionality and that Michigan prisoner’s claim that his sentence was
disproportionate was not cognizable on habeas review). There is no federal constitutional right
to individualized sentencing. United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995). State
courts are the final arbiters of state law and the federal courts will not intervene in such matters.
Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987);
see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“a state court’s interpretation of state law,
including one announced on direct appeal of the challenged conviction, binds a federal court
sitting on habeas review@); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Habeas relief
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does not lie for perceived errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Petitioner thus fails to state a claim upon which federal habeas relief may be granted as to this
issue.
Petitioner also cannot establish that his sentences constitute cruel and unusual punishment
under the Eighth Amendment of the United States Constitution. The Eighth Amendment does
not require strict proportionality between a crime and its punishment. Harmelin, 501 U.S. at 965.
A sentence that falls within the maximum penalty authorized by statute “generally does not
constitute ‘cruel and unusual punishment.’” Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000)
(internal citation omitted). As discussed, Petitioner=s concurrent sentences of 47 to 85 years
imprisonment on his CSC-1 convictions are within the statutory maximum of life imprisonment
for those offenses. The state trial court thus acted within its discretion in imposing Petitioner’s
sentences, and there is no extreme disparity between his crimes and sentences so as to offend the
Eighth Amendment. Habeas relief is not warranted on this claim.
Petitioner also asserts that he is entitled to habeas relief because the trial court relied upon
inaccurate information in resentencing him. He challenges his placement on the D level of the
guidelines and his habitual offender status. The Michigan Court of Appeals denied relief on this
claim, finding that under the state judicial guidelines in effect at the time of his offenses,
Petitioner’s prior record variable was scored at fifty points, such that he was properly sentenced
at the D level of those guidelines and that he was properly sentenced as a second habitual offender
as reflected in the applicable judgment of sentence. Moore, 2016 WL 4268245 at *1.
The state court’s decision is neither contrary to Supreme Court precedent nor an
unreasonable application thereof. To the extent that Petitioner challenges the scoring of the state
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sentencing guidelines, such a claim is not cognizable on federal habeas review because it is a state
law claim. See Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003) (“A state court’s alleged
misinterpretation of state sentencing guidelines and crediting statutes is a matter of state concern
only.”); Austin, 213 F.3d at 301-302 (state court did not abuse its discretion nor violate federal
due process by imposing a sentence above the state sentencing guidelines); Cheatham v. Hosey,
12 F.3d 211, 1993 WL 478854, *2 (6th Cir. Nov. 19, 1993) (holding that a departure from state
sentencing guidelines is a state law issue not cognizable on federal habeas review). Any alleged
error in scoring the sentencing guidelines and/or departing from the recommended minimum
guideline range does not merit habeas relief. As discussed above, the state courts are the final
arbiters of state law, and the federal courts will not intervene in such matters. Petitioner fails to
state a claim upon which federal habeas relief may be granted as to this issue.
A sentence may violate federal due process, however, if it is carelessly or deliberately
pronounced on an extensive and materially false foundation, which the defendant had no
opportunity to correct. Townsend, 334 U.S. at 741; see also United States v. Tucker, 404 U.S.
443, 447 (1972) (citing Townsend); United States v. Sammons, 918 F.2d 592, 603 (6th Cir. 1990)
(defendant must have a meaningful opportunity to rebut contested sentencing information). To
prevail on such a claim, a petitioner must show that the court relied upon the allegedly false
information. United States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); Draughn v Jabe, 803
F. Supp. 70, 80 (E.D. Mich. 1992).
Petitioner makes no such showing in this case. He fails to identify any specific facts to
establish a materially false foundation for his sentence. So habeas relief is not warranted on this
claim.
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Ineffective Assistance of Counsel Claim
Petitioner relatedly asserts that trial counsel was ineffective for failing to object to the
allegedly improper scoring and the imposition of his CSC-1 sentences at resentencing.
Respondent contends that this claim lacks merit.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant
the right to the effective assistance of counsel. In Strickland v. Washington, 466 U.S. 668, 687
(1984), the United States Supreme Court set forth a two-prong test for determining whether a
habeas petitioner has received ineffective assistance of counsel. First, a petitioner must prove
that counsel’s performance was deficient. This requires a showing that counsel made errors so
serious that he or she was not functioning as counsel as guaranteed by the Sixth Amendment.
Id. Second, the petitioner must establish that counsel’s deficient performance prejudiced the
defense. Counsel’s errors must have been so serious that they deprived the petitioner of a fair
trial or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts that were “outside the
wide range of professionally competent assistance.” Id. at 690. The reviewing court’s scrutiny
of counsel=s performance is highly deferential. Id. at 689. There is a strong presumption that
trial counsel rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. Id. at 690. The petitioner bears the burden of overcoming
the presumption that the challenged actions were sound trial strategy.
As to the prejudice prong, a petitioner must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. A reasonable probability is one that is sufficient to undermine confidence
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in the outcome of the proceeding. Id. On balance, “[t]he benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on as having produced a just result.”
Id. at 686.
The Supreme Court has confirmed that a federal court’s consideration of ineffective
assistance of counsel claims arising from state criminal proceedings is quite limited on habeas
review due to the deference accorded trial attorneys and state appellate courts reviewing their
performance. “The standards created by Strickland and ' 2254(d) are both ‘highly deferential,’
and when the two apply in tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at 105 (internal
and end citations omitted). “When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id.
Petitioner did not raise the effectiveness of counsel=s conduct at resentencing on appeal
before the Michigan Court of Appeals; rather, he first raised the issue before the Michigan
Supreme Court. Consequently, the claim has not been properly exhausted in the state courts.
See O=Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (a state prisoner must give the state courts
one full fair opportunity to resolve any constitutional issues by invoking one complete round of
the State’s established appellate review process); 28 U.S.C. § 2254(b), (c); Wagner v. Smith, 581
F.3d 410, 414 (6th Cir. 2009) (citing Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990), and
ruling that a Michigan prisoner must raise each claim before the Michigan Court of Appeals and
the Michigan Supreme Court to satisfy the exhaustion requirement).
The exhaustion
requirement, however, is not jurisdictional. To be sure, federal courts on habeas review, “are not
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required to address a procedural-default issue before deciding against the petitioner on the
merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520
U.S. 518, 525 (1997)); 28 U.S.C. ' 2254(e)(1). Consequently, the Court shall consider this issue
under a de novo standard of review.
Given the Michigan Court of Appeals’ decision, as well as this Court’s decision, that
Petitioner’s sentencing claims lack merit, Petitioner cannot establish that counsel erred at
resentencing and/or that he was prejudiced by counsel’s conduct. Counsel cannot be deemed
ineffective for failing to make a futile or meritless objection. See Coley v. Bagley, 706 F.3d
741, 752 (6th Cir. 2014) (“Omitting meritless arguments is neither professionally unreasonable
nor prejudicial.”); United States v. Steverson, 230 F.3d 221, 225 (6th Cir. 2000).
Habeas relief
is not warranted on this claim.
V.
Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas
relief on his claims. Accordingly, the Court denies and dismisses with prejudice the petition for
a writ of habeas corpus.
Before Petitioner may appeal, a certificate of appealability (ACOA@) must issue. See 28
U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A COA may issue only if a petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. ' 2253(c)(2). When a
federal district court denies relief on the merits, the substantial showing threshold is met if the
petitioner demonstrates that reasonable jurists would find the court’s assessment of the claims
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). “A petitioner satisfies this
standard by demonstrating that . . . jurists could conclude the issues presented are adequate to
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deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
When a court denies relief on procedural grounds, a COA should issue if it is shown that jurists
of reason would find it debatable whether the petitioner 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. Slack, 528 U.S. at 484-485.
Having considered the matter, the Court concludes that Petitioner fails to make a
substantial showing of the denial of a constitutional right as to his habeas claims. Accordingly,
the Court denies a COA. The Court also denies Petitioner leave to proceed in forma pauperis on
appeal as an appeal cannot be taken in good faith. See Fed. R. App. P. 24(a).
SO ORDERED
Dated: August 6, 2020
Detroit, Michigan
s/Mark A. Goldsmith
MARK A. GOLDSMITH
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 6, 2020.
s/Karri Sandusky
Case Manager
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