Willis v. Horton

Filing 12

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus ; Denying Certificate of Appealability; and Denying Permission to Appeal in Forma Pauperis. Signed by District Judge Gershwin A. Drain. (TMcg)

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1768 Filed 11/16/20 Page 1 of 18

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KELVIN WILLIS,

Petitioner,

Case No. 2:20-cv-10176

v.

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

CONNIE HORTON,
Respondent.
___________________________/
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS; (2) DENYING CERTIFICATE OF APPEALABILITY;
AND (3) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
I.

INTRODUCTION

Kelvin Willis (“Petitioner”), filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner was convicted following a jury
trial in the Wayne Circuit Court of child sexually abusive activity, Mich. Comp.
Laws § 750.145c(2), possession of less than twenty-five grams of cocaine, Mich.
Comp. Laws § 333.7403(2)(a)(v), and disseminating sexually explicit material,
Mich. Comp. Laws § 722.675. He was sentenced to a controlling term of 15 to 40
years for the child sexually abusive activity conviction and lesser concurrent terms
for his other convictions.

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1769 Filed 11/16/20 Page 2 of 18

The present habeas petition raises four claims: (1) insufficient evidence was
presented at trial to sustain Petitioner’s child sexually abusive activity conviction;
(2) the trial court was biased against Petitioner; (3) the child sexually abusive activity
statute requires the prosecutor to prove that Petitioner intended to produce child
sexually abusive material; and (4) the trial court failed to instruct the jury on the
requirement that Petitioner acted with the purpose to produce child sexually abusive
material. For the reasons that follow, the petition for a writ of habeas corpus is
DENIED WITH PREJUDICE.
II.

BACKGROUND

The Court recites verbatim the relevant facts regarding Petitioner’s conviction
from the Michigan Court of Appeals’ opinion, which are presumed correct on habeas
review pursuant to 28 U.S.C. § 2254(e)(1), see e.g. Wagner v. Smith, 581 F.3d 410,
413 (6th Cir. 2009):
The 52-year-old defendant’s convictions arise from his interaction with
his neighbor, a 16-year-old male, in defendant’s Dearborn apartment
on August 12, 2015. The prosecution presented evidence that defendant
spoke to the victim outside, asked the victim his age, and then invited
the victim into his apartment. While inside defendant’s apartment, the
victim sat on the couch, defendant put his arm around the victim, and
defendant used his cell phone to show the victim a video of two men
engaging in sexual intercourse. Defendant offered the victim $25 if he
would allow defendant to insert his fingers in the victim’s anus and
masturbate on the victim, and defendant later offered the victim $100
to engage in sexual intercourse. The victim declined both offers, and
thereafter, when defendant briefly left the apartment, the victim fled
and reported the incident to a neighbor. The neighbor contacted police,
and officers arrested defendant. During an inventory search, officers
2 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1770 Filed 11/16/20 Page 3 of 18

found cocaine in the pocket of defendant’s pants. At trial, defendant
denied any wrongdoing and asserted that the testimony of the victim
and the police was inconsistent and not credible.
People v. Willis, 914 N.W.2d 384, 386–87 (Mich. Ct. App. 2018).
Following his conviction and sentence, Petitioner filed a claim of appeal in
the Michigan Court of Appeals. His appellate counsel filed a brief on appeal that
raised three claims:
I. Petitioner’s due process rights were violated when he was convicted
of child sexually abusive activity without sufficient evidence to prove
the offense beyond a reasonable doubt.
II. Petitioner was denied a fair trial by the court’s denigration of the
defense and defense counsel and showed a partiality towards the
prosecution.
III. Petitioner is entitled to resentencing because the minimum term was
an unreasonable and disproportionate upward departure from the
recommended guidelines range.
The Michigan Court of Appeals affirmed Petitioner’s conviction in a published
opinion. See id.
Petitioner then filed an application for leave to appeal in the Michigan
Supreme Court that raised two claims:
I. Petitioner’s due process rights were violated when he was convicted
of child sexually abusive activity without sufficient evidence to prove
the offense beyond a reasonable doubt when the court gave the jury a
non-standard instruction.
II. Petitioner was denied a fair trial by the court’s denigration of the
defense and defense counsel and showed a partiality towards the
prosecution.
3 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1771 Filed 11/16/20 Page 4 of 18

The Michigan Supreme Court issued an order asking for supplemental
briefing pertinent to what now form Petitioner’s present first, third, and fourth
habeas claims in this Court:
The appellant shall file a supplemental brief within 42 days of the date
of this order addressing: (1) whether, to sustain a conviction under
MICH. COMP. LAWS § 750.145c(2), the prosecution must prove that the
defendant acted for the purpose of producing or making child sexually
abusive material; and (2) whether the evidence in this case was
sufficient to support the defendant’s conviction for child sexually
abusive activity, MICH. COMP. LAWS § 750.145c(2).
People v. Willis, 920 N.W.2d 566 (Mich. 2018) (mem.).
Following additional briefing, the Michigan Supreme Court denied the
application for leave to appeal in a 5-2 order. People v. Willis, 931 N.W.2d 1 (Mich.
2019). The court’s majority found that the plain language of the statute did not
require the prosecutor to prove that Petitioner engaged in child sexually abusive
activity with the purpose of producing child sexually abusive material. Id. at 1–3.
The court, however, flagged the case for Michigan’s Legislature, noting that statute
appeared discordant with the rest of Michigan’s criminal sexual conduct laws that
generally made sixteen years old the age of consent. Id. at 2.
III.

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:
4 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1772 Filed 11/16/20 Page 5 of 18

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).
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 411. “[A] state
court’s determination that a claim lacks merit precludes federal habeas relief so long
5 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1773 Filed 11/16/20 Page 6 of 18

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)). To obtain habeas relief in federal court, a state
prisoner is required to show that the state court’s rejection of his or her 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 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).
IV.

ANALYSIS

A. Mens Rea Requirement for Mich. Comp. Laws § 750.145c(2)
Petitioner’s first, third, and fourth habeas claims are closely related. In his
first claim, which he previously presented to the Michigan Court of Appeals, he
argues that insufficient evidence was presented at trial to sustain his conviction for
child sexually abusive activity.

Specifically, he argues that no evidence was

presented to prove that his conduct with the complainant was done for the purpose
of producing child sexually abusive material. The Michigan Court of Appeals
rejected the premise on which the claim was made. The court held that such a
purpose was not an element of the offense, so the prosecutor was not required to
produce evidence of that purpose. Petitioner’s third and fourth claims, which were
6 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1774 Filed 11/16/20 Page 7 of 18

also presented to the Michigan Supreme Court upon additional briefing, assert that
the statute should be interpreted as requiring that the child sexually abusive activity
be done for such a purpose, and that the trial court erred in omitting that element
from the jury instructions.
On direct appeal, the Michigan Court of Appeals undermined the premise of
Petitioner’s sufficiency of the evidence claim by finding that an intent to produce
child sexually abusive material was not an element of the offense of child sexually
abusive activity:
Initially, we reject defendant’s claim that MICH. COMP. LAWS §
750.145c is limited to criminalizing conduct involving the production
of child sexually abusive material. Whether conduct falls within the
scope of a criminal statute, in this case MICH. COMP. LAWS §
750.145c(2), is a question of statutory interpretation that we review de
novo. People v. Hill, 486 Mich. 658, 667-668 (2010). When construing
a statute, our primary goal is to ascertain and give effect to the intent of
the Legislature. People v. Perry, 317 Mich. App. 589, 604 (2016). To
that end, we begin by examining the plain language of the statute, and
“where that language is unambiguous, we presume that the Legislature
intended the meaning clearly expressed and enforce that statute as
written.” People v. Holder, 483 Mich. 168, 172 (2009). “[O]nly where
the statutory language is ambiguous may we look outside the statute to
ascertain legislative intent.” Id.
The statute proscribing child sexually abusive activity provides:
A person who persuades, induces, entices, coerces, causes,
or knowingly allows a child to engage in a child sexually
abusive activity for the purpose of producing any child
sexually abusive material, or a person who arranges for,
produces, makes, copies, reproduces, or finances, or a
person who attempts or prepares or conspires to arrange
for, produce, make, copy, reproduce, or finance any child
7 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1775 Filed 11/16/20 Page 8 of 18

sexually abusive activity or child sexually abusive material
for personal, distributional, or other purposes is guilty of a
felony, punishable by imprisonment for not more than 20
years, or a fine of not more than $100,000.00, or both, if
that person knows, has reason to know, or should
reasonably be expected to know that the child is a child or
that the child sexually abusive material includes a child or
that the depiction constituting the child sexually abusive
material appears to include a child, or that person has not
taken reasonable precautions to determine the age of the
child. [MICH. COMP. LAWS § 750.145c(2)] (emphasis
added).
Thus, among the types of conduct expressly proscribed by MICH. COMP.
LAWS § 750.145c(2) is “arrang[ing] for ... or ... attempt[ing] or
prepar[ing] or conspir[ing] to arrange for ... any child sexually abusive
activity or child sexually abusive material....” (Emphasis in Opinion.)
MICH. COMP. LAWS § 750.145c(1)(n) defines “child sexually abusive
activity” as “a child engaging in a listed sexual act.” “Child” means “a
person who is less than 18 years of age.” MICH. COMP. LAWS §
750.145c(1)(b) and MICH. COMP. LAWS § 750.145c(6). A listed sexual
act is defined to include “sexual intercourse, erotic fondling,
sadomasochistic abuse, masturbation, passive sexual involvement,
sexual excitement, or erotic nudity.” MICH. COMP. LAWS §
750.145c(1)(i). The statute provides a separate definition for “child
sexually abusive material.” See MICH. COMP. LAWS § 750.145c(1)(o).
This Court has recognized that MCL 750.145c(2) applies to three
distinct groups of persons. People v. Adkins, 272 Mich. App. 37, 40
(2006). The first category includes a person “who persuades, induces,
entices, coerces, causes, or knowingly allows a child to engage in a
child sexually abusive activity for the purpose of producing any child
sexually abusive material....” MICH. COMP. LAWS § 750.145c(2);
Adkins, 272 Mich. App. at 40. This category refers to those who are
engaged in the production of pornography. It is undisputed that
defendant does not fall within this group. The second category includes
a person who “arranges for, produces, makes, copies, reproduces, or
finances ... any child sexually abusive activity or child sexually abusive
material....” MICH. COMP. LAWS § 750.145c(2); Adkins, 272 Mich.
App. at 41. The last category is defined to include a person “who
attempts or prepares or conspires to arrange for, produce, make, copy,
8 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1776 Filed 11/16/20 Page 9 of 18

reproduce, or finance any child sexually abusive activity or child
sexually abusive material....” MICH. COMP. LAWS § 750.145c(2);
Adkins, 272 Mich. App. at 41. The use of the disjunctive “or” in the
second and third categories clearly and unambiguously indicates that
persons who arrange for or attempt or prepare to arrange for child
sexually abusive activity face criminal liability. See Adkins, 272 Mich.
App. at 41. “The Legislature thus omitted from the second and third
groups subject to criminal liability any requirement that the individuals
therein must have acted for the ultimate purpose of creating any child
sexually abusive material, a specific requirement applicable to the first
group of criminals.” Id. at 42. Accordingly, we reject defendant’s
argument that MICH. COMP. LAWS § 750.145c is limited to conduct
involving the production of sexually abusive material. The allegations
against defendant squarely place him within the group of persons on
whom MICH. COMP. LAWS § 750.145c(2) imposes criminal liability.
People v. Willis, 914 N.W.2d 384, 387–88 (Mich. Ct. App. 2018).
The court went on to find that sufficient evidence was presented to establish
beyond a reasonable doubt that Petitioner engaged in child sexually abusive activity
with the complainant:
Turning to the sufficiency of the evidence to support defendant’s
conviction, we conclude that, viewed in a light most favorable to the
prosecution, the evidence was factually sufficient to show that
defendant arranged for, or attempted to arrange or prepare for, child
sexually abusive activity with the 16-year-old victim. The evidence
showed that the 52-year-old defendant invited the 16-year-old victim
into his apartment, showed the victim a pornographic video of two men
engaging in sexual intercourse, offered the victim $25 to allow
defendant to insert his fingers into the victim’s anus while he
masturbated, and later offered the victim $100 to engage in sexual
intercourse. This was sufficient for a rational trier of fact to find that
the essential elements of child sexually abusive activity were proved
beyond a reasonable doubt. As discussed earlier, the prosecution was
not required to prove that defendant’s conduct involved the production
of child sexually abusive material.
9 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1777 Filed 11/16/20 Page 10 of 18

Willis, 914 N.W.2d at 388.
The legal premise on which Petitioner’s first, third, and fourth claims is based
rests on an interpretation of a state statute that the crime of child sexually abusive
activity requires proof of a purpose to produce child sexually abusive material. That
construction of the statute was rejected by the state court purely as a matter of state
law. The court’s rejection of that premise is binding on this court and is also
dispositive of Petitioner’s claims; what is essential to establish an element of a crime
is a question of state law for which federal habeas review is not available. See
Sanford v. Yukins, 288 F.3d 855, 862 (6th Cir. 2002); Jenkins v. Dailey, 348 F.
App’x. 114, 119 (6th Cir. 2009). Rather, a federal habeas court must defer to the
Michigan Court of Appeals’ construction of the elements of state crimes. See Coe
v. Bell, 161 F.3d 320, 347 (6th Cir. 1998). “[A] state court’s interpretation of state
law, including one announced on direct appeal of the challenged conviction, binds a
federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005)
(citation omitted). State courts are the “ultimate expositors of state law.” Mullaney
v. Wilbur, 421 U.S. 684, 691 (1975) (citation omitted).
Accordingly, the prosecutor was required to prove—and the trial court was
required to instruct the jury—only on the elements of the offense as defined by the
Michigan Court of Appeals. These elements include that the defendant arranged for,
or attempted to arrange or prepare for, child sexually abusive activity. Michigan
10 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1778 Filed 11/16/20 Page 11 of 18

state law defines child sexually abusive activity as “a child engaging in a listed
sexual act.” Mich. Comp. Laws § 750.145c(1)(n). “Child” means “a person who is
less than 18 years of age.” Mich. Comp. Laws § 750.145c(1)(b). A listed sexual act
is defined to include “sexual intercourse, erotic fondling, sadomasochistic abuse,
masturbation, passive sexual involvement, sexual excitement, or erotic nudity.”
Mich. Comp. Laws § 750.145c(1)(i).
Here, as reasonably found by the Michigan Court of Appeals, and viewing the
evidence most favorably to the prosecution, constitutionally sufficient evidence was
presented at trial to show that Petitioner attempted to arrange or prepare for child
sexually abusive activity as defined by state law. Jackson v. Virginia, 443 U.S. 307,
319 (1979). The complainant testified that he told Petitioner that he was sixteen
years old, that Petitioner lured him into his apartment, and that Petitioner offered to
pay him to engage in sexual acts. This testimony, if accepted by the jury beyond a
reasonable doubt, satisfied the elements of child sexually abusive activity as defined
by state law.
In his fourth habeas claim, Petitioner argues that the trial court failed to
instruct the jury on the requirement that Petitioner acted with the purpose to produce
child sexually abusive material. ECF No. 10-15, PageID.1120–21. A habeas
petitioner must show not only that a challenged jury instruction was erroneous, but
also that it so infected the entire trial that the resulting conviction violates due
11 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1779 Filed 11/16/20 Page 12 of 18

process. Estelle v. McGuire, 502 U.S. 62, 75 (1991). Here, the Michigan Court of
Appeals found that the purpose of producing child sexually abusive material was not
a required element of the crime. As the jury instructions correctly omitted the
disputed element, this fourth claim is therefore also without merit.
Accordingly, the Court concludes that Petitioner’s first, second, and fourth
habeas claims are without merit.
B. Judicial Bias
Petitioner’s third habeas claim asserts that the trial court was biased against
him. He primarily relies on an exchange occurring during the testimony of a police
witness for this claim, but he also asserts that the court’s rulings on various
objections throughout trial indicated that it was partial to the prosecutor. With
respect to the primary assertion, on cross-examination of the police witness, defense
counsel challenged the officer’s assumption that Petitioner was not permitted to be
near schools under the sex offender registration act.1 The complained-of exchange
ran as follows:
[Defense Counsel]: And one of the things you were concerned about is
if he could be alone with a minor, correct?

1

At the time of the instant offense, Petitioner had just completed his parole term
from his 2002 conviction for two counts of first-degree criminal sexual conduct
related to his conduct with a person under thirteen years of age. ECF No. 10-17,
PageID.1174–75.
12 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1780 Filed 11/16/20 Page 13 of 18

[Sergeant Kapanowski]: I believe it was a CSC under thirteen year old,
so, yes, I was concerned whether or not he could have children in the
residence as well as be close to schools and difference stipulations.
[Defense Counsel]: In the video you didn’t say anything about being
close to schools, correct, that we heard?
[Sergeant Kapanowski]: No, but that’s part of the sexual offender
registry. That’s what I was assuming, too. I was thinking, I should say.
[Defense Counsel]: Thank you. And when you made that assumption
were you saying…
The Court: What assumption?
[Defense Counsel]: What he just said, the assumption about him not
being able to be near minors or be around schools.
[Defense Counsel]: Whatever assumptions you made, okay, did you
later come to find out after you arrested Mr. Willis that you were
wrong?
The Court: That’s beyond that, Miss Diallo.
[Defense counsel]: Okay.
The Court: Hold on, one second. Okay. I just want to say that Michigan
Rule Evidence 6.11 says that the Court shall exercise reasonable control
over the mode and order of interrogating witnesses and presenting
evidence. So as to, one, make the interrogation and presentation
effective for the ascertainment of the truth; two, avoid needless
consumption of time as applies here. So that was the reason for my
limiting this to what was on the video and that’s my reason for stopping
that last question.
ECF No.10-15, PageID.1025–27.
Petitioner asserts that by cutting-off a legitimate area of questioning, the court
belittled defense counsel and denigrated the defense. The Michigan Court of
13 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1781 Filed 11/16/20 Page 14 of 18

Appeals reviewed and rejected this claim on the merits, and it determined that
Petitioner was not denied his right a fair trial before an impartial judge:
The trial court’s remarks were not of such a nature as to unduly
influence the jury. The record shows that the trial court appropriately
exercised its discretion to control the trial to prevent improper
questioning of the sergeant and avoid wasting time. Before the sergeant
took the stand, the parameters of his testimony were discussed. On the
basis of the parties’ agreement, the trial court allowed a portion of a
video recording from the sergeant’s squad car that depicted a
conversation between the sergeant and the victim. The sergeant’s
testimony was limited to what transpired on the recording. Defense
counsel, however, sought to ask the sergeant whether his assumption
that defendant could not be around schools was incorrect. Similar
testimony was previously placed before the jury at trial when a
detective testified that it was not correct that defendant could not be
around schools. Thus, the trial court evidently prevented further
exploration on this matter because it was outside the scope of the trial
court’s ruling regarding the sergeant’s testimony, irrelevant to the
proceedings inasmuch as defendant was not charged with violating
SORA, and repetitive. Defendant has provided no explanation,
argument, or authority indicating how the evidentiary objection was
improper and not in accordance with MRE 611(a). Instead, defendant
focuses on the trial court “reading from a court rule” and the “tone and
demeanor” in which the trial court recited the court rule, but defendant
fails to also observe that defense counsel’s behavior of ignoring the
court’s ruling very likely necessitated the court’s reference to MRE
611.
Before defense counsel’s question that prompted the trial judge’s
reference to MRE 611, the trial court had interrupted defense counsel,
noting that her questions about the sergeant’s training were “beyond the
redirect.” In an apparent effort to continue, defense counsel stated,
“Well, no, Judge, I understand that, but they never produced this
witness.” The trial court explained that defendant may call the sergeant
as a defense witness but that her question was “beyond what we’ve
gone into and what I said you should do or could cover on re-cross.”
Thus, the trial court’s specific mention of MRE 611 occurred after the
trial court had already cautioned defendant about the limitations on
14 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1782 Filed 11/16/20 Page 15 of 18

cross-examination. Yet defense counsel chose to question the sergeant
on a matter that was outside the trial court’s ruling. Considering the
totality of the circumstances, the trial court’s reading of MRE 611 was
not calculated to cause the jury to believe that the court had any opinion
regarding the case and was not likely to unduly influence the jury to
defendant’s detriment. Rather, it appears that the trial court was merely
explaining its interruptions and was not intending to belittle defense
counsel. Moreover, the trial court instructed the jury that the case must
be decided only on the evidence, that its comments and rulings were
not evidence, that it was not trying to influence the vote or express a
personal opinion about the case when it made a comment or a ruling,
and that if the jury believed that the court had an opinion, that opinion
must be disregarded. Accordingly, to the extent that the trial court’s
conduct could be deemed improper, its instructions were sufficient to
cure any error. Stevens, 498 Mich. at 190.
People v. Willis, 914 N.W.2d 384, 389–92 (Mich. Ct. App. 2018).
“[T]he Due Process Clause clearly requires a fair trial in a fair tribunal before
a judge with no actual bias against the defendant or interest in the outcome of his
particular case.” Bracy v. Gramley, 520 U.S. 899, 904–05 (1997) (internal quotation
marks and citation omitted). Indeed, an impartial judge is a necessary component of
a fair trial. In re Murchison, 349 U.S. 133, 136 (1955). The Supreme Court
established the standard for assessing claims of judicial bias in Liteky v. United
States, 510 U.S. 540 (1994). A judge’s remarks that are “critical or disapproving of,
or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias
or partiality challenge.” Liteky, 510 U.S. at 555.
Here, the Michigan Court of Appeals did not unreasonably apply this clearlyestablished standard. As noted by the state court, the trial judge’s interruption was
15 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1783 Filed 11/16/20 Page 16 of 18

based on its earlier ruling that limited cross-examination to matters covered by the
court’s earlier ruling. Whether that prior ruling was correct or not, the trial court’s
comments did not evidence bias or partiality–it was rather a statement in keeping
with its prior order. Petitioner points to nothing other than rulings like this one to
support this claim. Importantly, however, “judicial rulings alone almost never
constitute a valid basis” for a claim bias or partiality. Id.
Moreover, to the extent the rulings suggested that the trial court had an opinion
regarding the merits of the prosecution, this Court takes notice that the state court
instructed the jury to disregard them and to not allow any comments or rulings
influence deliberations. ECF No. 10-15, PageID.1114. A jury is presumed to follow
such instructions. Richardson v. Marsh, 481 U.S. 200, 211 (1987). This Court finds
that Petitioner has offered no reason to believe that this presumption should not
apply here, or that it was objectively unreasonable for the Michigan Court of Appeals
to rely on it. Accordingly, Petitioner’s third habeas claim is without merit.
In sum, because Petitioner has not demonstrated entitlement to habeas relief
with respect to any of his four claims, this Court will deny his petition.
C. Certificate of Appealability
In order to appeal the Court’s decision, Petitioner must obtain a certificate of
appealability. 28 U.S.C. § 2253(c)(2).

In order to obtain a certificate of

appealability, an applicant must make a substantial showing of the denial of a
16 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1784 Filed 11/16/20 Page 17 of 18

constitutional right. Id. 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.
For the reasons stated in this Opinion, the Court will deny 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). Moreover, the Court will also deny
petitioner leave to appeal in forma pauperis because the appeal would be frivolous.
28 U.S.C. § 1915(a)(3); Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
V.

CONCLUSION

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.
17 

Case 2:20-cv-10176-GAD-EAS ECF No. 12, PageID.1785 Filed 11/16/20 Page 18 of 18

IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED.
SO ORDERED.
Dated: November 16, 2020
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
A Copy of this Order was served on Kelvin Willis, No. 423665, Chippewa
Correctional Facility, 4269 W. M-80, Kincheloe, Michigan 49784 on
November 16, 2020, by electronic and/or ordinary mail.
/s/ Teresa McGovern
Deputy Clerk

18