Walker v. Perry
Filing
14
OPINION and ORDER Denying the petition for Writ of Habeas Corpus and Declining to Issue A Certificate of Appealibility or Leave to Appeal In Forma Pauperis re 1 Petition for Writ of Habeas Corpus. Signed by District Judge Gershwin A. Drain. (Bankston, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY WALKER,
Petitioner,
Civil Action 4:12-cv-12731
HONORABLE GERSHWIN A. DRAIN
UNITED STATES DISTRICT COURT
v.
MITCH PERRY,
Respondent,
_______________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
OR LEAVE TO APPEAL IN FORMA PAUPERIS
I. INTRODUCTION
Gregory Walker, (“Petitioner”), confined at the Newberry Correctional Facility
in Newberry, Michigan, has filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his pro se application, Mr. Walker challenges his conviction for
three counts of third-degree criminal sexual conduct, M.C.L.A. 750.520d(1)(a), and
being a second felony habitual offender, M.C.L.A. 769.10. For the reasons stated
below, the petition for writ of habeas corpus is DENIED.
II. BACKGROUND
Mr. Walker was convicted of the above charges following a jury trial in the
Wayne County Circuit Court. This Court recites verbatim the relevant facts relied
upon by the Michigan Court of Appeals, which are presumed correct on habeas
1
review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413
(6th Cir. 2009):
This case arose while the thirteen-year-old victim was babysitting at the
house of a family friend named Mona while Mona went shopping.
Mona had two adult guests staying at the house, defendant and a man
named Mike. The record reflects that after Mona’s children went to
bed, the victim went down to the basement to watch the men play
cards. While in the basement, she drank two alcoholic coolers. After
the game, Mike suggested that the victim sleep in his basement
bedroom while he slept on a couch in another area of the basement,
but defendant insisted that the victim sleep upstairs. The victim
testified that she went upstairs and lay down on the couch to watch
television. Defendant followed her upstairs, sat on the floor, and
watched with her. After about thirty minutes, defendant moved to the
couch and removed the victim’s pants. He first penetrated her vagina
with his penis, but eventually stopped to prevent ejaculation. He then
performed cunnilingus on her and digitally penetrated her vagina. The
victim did not initially tell Mona about the incident, but the next day
defendant made a vulgar statement to Mona about sexually penetrating
the victim. Mona told him that he had better not be serious, and
defendant did not say anything more. A few months later, the victim
took a trip up north with Mona and some of her friends. One of them
asked the victim whether she had ever had sex, and the victim said that
she had never had consensual sex. Crying, she then asked Mona
whether someone could get pregnant from an individual who had
undergone a vasectomy. When one of the women asked the victim if
defendant, who openly discussed his vasectomy, was the individual
who had sex with her, she confided in Mona that defendant had
touched her inappropriately. When they returned from the trip, Mona
took the victim to report the matter to police.
People v. Walker, No. 275656, * 1 (Mich.Ct.App. March 25, 2008).
Mr. Walker’s conviction was affirmed on appeal. Id., lv. den. 482 Mich. 897,
753 N.W.2d 147 (2008).
Mr. Walker then filed a post-conviction motion for relief from judgment with the
2
trial court pursuant to M.C.R. 6.500, et. seq., which was denied. People v. Walker,
No. 06-010957-01 (Wayne County Circuit Court, March 31, 2010). The Michigan
appellate courts denied Mr. Walker leave to appeal. People v. Walker, No. 302208
(Mich.Ct.App. August 30, 2011); lv. den. 491 Mich. 886, 809 N.W.2d 587 (2012).
Mr. Walker seeks a writ of habeas corpus on the following grounds:
I. Ineffective counsel by failing to challenge and excuse jurors whom
were potentially prejudicial to the defendant—Appellate counsel fail to
address trial counsel ineffectiveness by omitting significant and obvious
issues on direct appeal.
II. Trial court abuse of discretion by not allowing his witnesses to testify
in his behalf and allowing hearsay for what the plaintiff told someone
else.
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:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1)
resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if the
3
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.
The Supreme Court has explained that “[a] federal court’s collateral review
of a state-court decision must be consistent with the respect due state courts in our
federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus
imposes a ‘highly deferential standard for evaluating state-court rulings,’and
‘demands that state-court decisions be given the benefit of the doubt.’” Renico v.
Lett, 130 S. Ct. 1855, 1862 (2010)(quoting Lindh v. Murphy, 521 U.S. 320, 333, n.
7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[A] state
court’s determination that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (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
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was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Furthermore, 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.
“[I]f this standard is difficult to meet, that is because it was meant to be.”
Harrington, 131 S. Ct. at 786. Although 28 U.S.C. § 2254(d), as amended by the
AEDPA, does not completely bar federal courts from relitigating claims that have
previously been rejected in the state courts, it preserves the authority for a federal
court to grant habeas relief only “in cases where there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts with” the Supreme
Court’s precedents. Id. Indeed, “Section 2254(d) reflects the view that habeas
corpus is a ‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Id. (citing
Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in
judgment)). Thus, a “readiness to attribute error [to a state court] is inconsistent
with the presumption that state courts know and follow the law.” Woodford, 537 U.S.
at 24. 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
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law beyond any possibility for fairminded disagreement.” Harrington, 131 S. Ct. at
786-87.
IV. ANALYSIS
A. The procedurally defaulted claims.
Respondent first argues that Mr. Walker’s first claim alleging the ineffective
assistance of trial counsel and a portion of his second claim, which involves an
allegation that the trial court violated Mr. Walker’s right to a fair trial by refusing to
permit him to call character witnesses, are procedurally defaulted because
petitioner raised these claims for the first time in his post-conviction motion, and
failed to show cause and prejudice for failing to raise these claims in his appeal of
right, as required by M.C.R. 6.508(D)(3).
When the state courts clearly and expressly rely on a valid state procedural
bar, federal habeas review is also barred unless petitioner can demonstrate “cause”
for the default and actual prejudice as a result of the alleged constitutional violation,
or can demonstrate that failure to consider the claim will result in a “fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). If
petitioner fails to show cause for his procedural default, it is unnecessary for the
court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986).
However, in an extraordinary case, where a constitutional error has probably
resulted in the conviction of one who is actually innocent, a federal court may
consider the constitutional claims presented even in the absence of a showing of
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cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986).
However, to be credible, such a claim of innocence requires a petitioner to support
the allegations of constitutional error with new reliable evidence that was not
presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995).
Michigan Court Rule 6.508(D)(3) provides that a court may not grant relief to
a defendant if the motion for relief from judgment alleges grounds for relief which
could have been raised on direct appeal, absent a showing of good cause for the
failure to raise such grounds previously and actual prejudice resulting therefrom.
For purposes of a conviction following a trial, “actual prejudice” means that “but for
the alleged error, the defendant would have had a reasonably likely chance of
acquittal.” M.C.R. 6.508(D)(3)(b)(i).
The Supreme Court has noted that “a procedural default does not bar
consideration of a federal claim on either direct or habeas review unless the last
state court rendering a judgment in the case ‘clearly and expressly’ states that its
judgment rests on the procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989).
If the last state court judgment contains no reasoning, but simply affirms the
conviction in a standard order, the federal habeas court must look to the last
reasoned state court judgment rejecting the federal claim and apply a presumption
that later unexplained orders upholding the judgment or rejecting the same claim
rested upon the same ground. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
The Michigan Court of Appeals and the Michigan Supreme Court rejected Mr.
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Walker’s post-conviction appeal on the ground that “the defendant has failed to
meet the burden of establishing entitlement to relief under MCR 6.508(D).” These
orders, however, did not refer to subsection (D)(3) nor did they mention Mr.
Walker’s failure to raise these claims on his direct appeal as their rationale for
rejecting his post-conviction claims. Because the form orders in this case citing
Rule 6.508(D) are ambiguous as to whether they refer to procedural default or a
denial of post-conviction relief on the merits, the orders are unexplained. See
Guilmette v. Howes, 624 F. 3d 286, 291 (6th Cir. 2010). This Court must “therefore
look to the last reasoned state court opinion to determine the basis for the state
court’s rejection” of Mr. Walker’s claims. Id.
In the present case, the Wayne County Circuit Court judge, in rejecting Mr.
Walker’s motion for relief from judgment concluded that:
Defendant has failed to make meritorious arguments which establish
errors in the proceedings or that, but for any alleged errors, he would
have had a reasonably likely chance of acquittal, or that his sentence
is invalid. Therefore, defendant has failed to establish any actual
prejudice which requires reversal of his convictions and sentences.
MCR 6.508(D)(3)(b).
People v. Walker, No. 06-010957-01, Slip. Op. at * 6.
In this case, the trial judge clearly invoked M.C.R. 6.508(D)(3)(b) in denying
Mr. Walker’s post-conviction claims. Because the trial court judge denied Mr.
Walker post-conviction relief based on the procedural grounds stated in M.C.R.
6.508(D)(3), Mr. Walker’s post-conviction claims are clearly procedurally defaulted
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pursuant to M.C.R. 6.508(D)(3). See Ivory v. Jackson, 509 F. 3d 284, 292-93 (6th
Cir. 2007); see also Howard v. Bouchard, 405 F. 3d 459, 477 (6th Cir. 2005). The
fact that the trial judge may have also discussed the merits of Mr. Walker’s claims
in addition to invoking the provisions of M.C.R. 6.508(D)(3) to reject petitioner’s
claims does not alter this analysis. See Alvarez v. Straub, 64 F. Supp. 2d 686, 695
(E.D. Mich. 1999). A federal court need not reach the merits of a habeas petition
where the last state court opinion clearly and expressly rested upon procedural
default as an alternative ground, even though it also expressed views on the merits.
McBee v. Abramajtys, 929 F. 2d 264, 267 (6th Cir. 1991). Mr. Walker’s first claim
and the portion of his second claim that he raised for the first time on postconviction review are therefore procedurally defaulted. 1
Mr. Walker contends that his appellate counsel was ineffective for failing to
raise his post-conviction claims on his appeal of right.
It is well-established that a criminal defendant does not have a constitutional
right to have appellate counsel raise every non-frivolous issue on appeal. See
Jones v. Barnes, 463 U.S. 745, 751 (1983). The United States Supreme Court has
explained:
“For judges to second-guess reasonable professional judgments and
impose on appointed counsel a duty to raise every ‘colorable’ claim
suggested by a client would disserve the ... goal of vigorous and
1
Mr. Walker could not have procedurally defaulted his ineffective assistance of appellate counsel
claim, because state post-conviction review was the first opportunity that he had to raise this claim. See
Guilmette, 624 F. 3d at 291; Hicks v. Straub, 377 F. 3d 538, 558, n. 17 (6th Cir. 2004). However, for the
reasons stated below, Mr. Walker is not entitled to habeas relief on this claim.
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effective advocacy.... Nothing in the Constitution or our interpretation
of that document requires such a standard.”
Id. at 754.
Moreover, “[a] brief that raises every colorable issue runs the risk of burying
good arguments-those that, in the words of the great advocate John W. Davis, ‘go
for the jugular,’-in a verbal mound made up of strong and weak contentions.” Id. at
753 (citations omitted).
The Supreme Court has subsequently noted that:
Notwithstanding Barnes, it is still possible to bring a Strickland [v.
Washington, 466 U.S. 668 (1984)] claim based on [appellate]
counsel’s failure to raise a particular claim[on appeal], but it is difficult
to demonstrate that counsel was incompetent.”
Smith v. Robbins, 528 U.S. 259, 288 (2000).
Strategic and tactical choices regarding which issues to pursue on appeal are
“properly left to the sound professional judgment of counsel.” United States v. Perry,
908 F.2d 56, 59 (6th Cir. 1990). In fact, “the hallmark of effective appellate
advocacy” is the “process of ‘winnowing out weaker arguments on appeal and
focusing on’ those more likely to prevail.” Smith v. Murray, 477 U.S. at 536 (quoting
Barnes, 463 U.S. at 751-52). “Generally, only when ignored issues are clearly
stronger than those presented will the presumption of effective assistance of
appellate counsel be overcome.” Monzo v. Edwards, 281 F. 3d 568, 579 (6th Cir.
2002). Appellate counsel may deliver deficient performance and prejudice a
defendant by omitting a “dead-bang winner,” which is defined as an issue which
10
was obvious from the trial record and would have resulted in a reversal on appeal.
See Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).
Mr. Walker has failed to show that appellate counsel’s performance fell
outside the wide range of professionally competent assistance by omitting the
claims that he raised for the first time in his post-conviction motion for relief from
judgment. Appellate counsel filed a thirty eight page appellate brief which raised
three claims, including the claim involving the admission of the victim’s out-of-court
statements that Mr. Walker raises in his second claim. 2 Mr. Walker has not shown
that appellate counsel’s strategy in presenting these three claims and not raising
other claims was deficient or unreasonable. Moreover, for the reasons stated by
the Wayne County Circuit Court in rejecting Mr. Walker’s post-conviction claims and
by the Assistant Michigan Attorney General in her answer to the petition for writ of
habeas corpus, none of the claims raised by Mr. Walker in his post-conviction
motion were “dead bang winners.” Because the defaulted claims are not “dead
bang winners,” Mr. Walker has failed to establish cause for his procedural default
of failing to raise these claims on direct review. See McMeans v. Brigano, 228 F.
3d 674, 682-83 (6th Cir. 2000).
Moreover, because these post-conviction claims lack merit, this Court must
reject any independent ineffective assistance of appellate counsel claim raised by
Mr. Walker. “[A]ppellate counsel cannot be found to be ineffective for ‘failure to
2
See Appellant’s Brief on Appeal [A portion of this Court’s Dkt. # 13-16].
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raise an issue that lacks merit.’” Shaneberger v. Jones, 615 F. 3d 448, 452 (6th Cir.
2010)(quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)).
Mr. Walker has failed to show cause to excuse his default of the claims that
he raised for the first time on state post-conviction review. Because petitioner has
not demonstrated any cause for his procedural default, it is unnecessary for the
court to reach the prejudice issue. Smith v. Murray, 477 U.S. at 533.
Additionally, Mr. Walker has not presented any new reliable evidence to
support any assertion of innocence which would allow this Court to consider the
claims that he raised for the first time in his post-conviction motion for relief from
judgment as a ground for a writ of habeas corpus in spite of the procedural default.
Because Mr. Walker has not presented any new reliable evidence that he is
innocent of these crimes, a miscarriage of justice will not occur if the Court declined
to review petitioner’s procedurally defaulted claims on the merits. See Johnson v.
Smith, 219 F. Supp. 2d 871, 882 (E.D. Mich. 2002).
Finally, assuming that Mr. Walker had established cause for the default of his
claims, he would be unable to satisfy the prejudice prong of the exception to the
procedural default rule, because his claims would not entitle him to relief. The
cause and prejudice exception is conjunctive, requiring proof of both cause and
prejudice. See Matthews v. Ishee, 486 F. 3d 883, 891 (6th Cir. 2007). For the
reasons stated by the Wayne County Circuit Court judge in rejecting Mr. Walker’s
first claim and the procedurally defaulted portion of his second claim when she
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denied petitioner’s post-conviction motion and by the Assistant Michigan Attorney
General in her answer to the petition for writ of habeas corpus, Mr. Walker has
failed to show that his procedurally defaulted claims have any merit. In particular,
the reasons justifying the denial of Mr. Walker’s procedurally defaulted claims were
“ably articulated by the” Wayne County Circuit Court judge in rejecting Mr. Walker’s
motion for relief from judgment, therefore, “the issuance of a full written opinion” by
this Court regarding these claims “would be duplicative and serve no useful,
jurisprudential purpose.” See e.g. Bason v. Yukins, 328 Fed. Appx. 323, 324 (6th
Cir. 2009). Mr. Walker is not entitled to habeas relief on his procedurally defaulted
claims.
B. Claim # 2. The claim involving the admission of the victim’s out-of
court statements.
Mr. Walker next contends that the trial court erred in permitting the
introduction of out-of-court statements made by the victim to her friend on the
ground that such statements were inadmissible hearsay.
Mr. Walker further
contends that such statements did not qualify as prior consistent statements that
would have been admissible pursuant to M.R.E. 801(d)(1)(B).
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
13
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).
The admissibility of evidence under Michigan’s hearsay rules is not
cognizable in a habeas corpus proceeding. See Byrd v. Tessmer, 82 Fed.App’x.
147, 150 (6th Cir. 2003); see also Rhea v. Jones, 622 F. Supp. 2d 562, 589 (W.D.
Mich. 2008); Cathron v. Jones, 190 F. Supp. 2d 990, 996 (E.D. Mich.
2002)(petitioner’s claim that state court erred in admitting hearsay testimony under
state evidentiary rule governing declarations against penal interest not cognizable
in federal habeas review, where the claim alleged a violation of state law, not a
violation of federal constitutional rights). The admission of this evidence in violation
of Michigan’s rules of evidence would not entitle Mr. Walker to habeas relief.
The admission of a prior consistent statement when the declarant is available
for cross-examination at trial, as was the case here, is not a question that rises to
the level of a constitutional violation for purposes of habeas corpus relief. See
United States ex. rel. Gonzalez v. DeTella, 918 F. Supp. 1214, 1222 (N.D. Ill.
1996)(internal citations omitted).
Indeed, there is no violation of the Sixth
Amendment’s Confrontation Clause when the witness testifies at trial and is subject
to unrestricted cross-examination. See United States v. Owens, 484 U.S. 554, 560
(1988); see also Crawford v. Washington, 541 U.S. 36, 59, n. 9 (2004); U.S. v.
Mayberry, 540 F. 3d 506, 516 (6th Cir. 2008).
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As the Supreme Court has
explained, “where the declarant is not absent, but is present to testify and to submit
to cross examination, our cases, if anything, support the conclusion that the
admission of his out of court statements does not create a confrontation clause
problem.” California v. Green, 390 U.S. 149, 162 (1970). 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.” Owens,
484 U.S. at 560 (internal citations omitted). When a declarant's out-of-court
statement is admitted at a criminal defendant’s trial, “the question is whether
defendant has the opportunity to cross-examine the declarant at trial.” Strayhorn v.
Booker, 718 F. Supp. 2d 846, 867 (E.D. Mich. 2010)(emphasis original). Because
the victim testified at Mr. Walker’s trial and was subject to cross-examination, the
admission of her out-of-court statements to her friend did not violate Mr. Walker’s
Sixth Amendment right to confrontation. See Shannon v. Berghuis, 617 F. Supp. 2d
596, 604 (W.D. Mich. 2008).
Mr. Walker’s claim about the admission of prior consistent statements that the
victim made to her friend involves at best an error of state law that is not cognizable
in federal habeas review. See Regan v. Hoffner, 209 F. Supp. 2d 703, 715 (E.D.
Mich. 2002). Because the victim was subject to cross-examination at Mr. Walker’s
trial, the admission of her extrajudicial statements presented no Confrontation
Clause problems. Id. Because the admission of the victim’s prior consistent
statements did not deprive Mr. Walker of a fundamentally fair trial, petitioner is not
15
entitled to habeas relief on this portion of his second claim. See Benton v. Booker,
403 Fed.App’x. 984, 986 (6th Cir. 2010).
V. CONCLUSION
The Court will deny the petition for writ of habeas corpus. The Court will also
deny 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. Likewise, when a district court denies a habeas
petition on procedural grounds without reaching the prisoner’s underlying
constitutional claims, a certificate of appealability should issue, and an appeal of the
district court’s order may be taken, if the petitioner shows 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. Id. at 484. “The district court must
issue or deny a certificate of appealability when it enters a final order adverse to the
16
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 Mr. Walker 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 at 885. The Court will also deny Mr. Walker leave to appeal in forma
pauperis, because the appeal would be frivolous. Allen v. Stovall, 156 F. Supp. 2d
791, 798 (E.D. Mich. 2001).
VI. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of
habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that leave to appeal in forma pauperis is
DENIED.
Dated: March 21, 2013
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
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