Gray v. Rapelje
Filing
12
OPINION and ORDER Denying the 1 Petition for Writ of Habeas Corpus, and Declining to Issue a Certificate of Appealability and Leave to Appeal In Forma Pauperis. Signed by District Judge Linda V. Parker. (Loury, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GLEN GRAY II,
Petitioner,
Civil Case No. 4:13-cv-14730
Honorable Linda V. Parker
v.
LLOYD RAPELJE,
Respondent.
________________________________/
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
On November 15, 2013, Michigan prisoner Glen Gray II (“Petitioner”) filed
a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his
application, Petitioner challenges his convictions in 2011 following a bench trial in
the Circuit Court for Genesee County, Michigan, for felonious assault in violation
of Michigan Compiled Laws § 750.82, felon in possession of a firearm in violation
of Michigan Compiled Laws § 750.224f, and possession of a firearm during the
commission of a felony, second offense, in violation of Michigan Compiled Laws
§ 750.227b. For the reasons stated below, the Court denies Petitioner habeas relief
and declines to issue a certificate of appealability and leave to proceed in forma
pauperis on appeal.
I. Background
This Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals, which are presumed correct on habeas review pursuant to 28
U.S.C. § 2254(e)(1). As summarized by the state court:
Just after midnight on August 23, 2009, Cornisha Doss drove to
the home of defendant’s friend and picked him up. Doss and
defendant had met approximately a month before and had dated, but
apparently had since ended their relationship. The pair headed to a
restaurant. Doss claimed that defendant asked her for a ride.
Defendant asserted that Doss contacted him. Both agreed that Doss
expected defendant to purchase her a meal and asked defendant to
give her money for gas. Doss drove to a Sunoco gas station on
Corunna Road in Flint and pulled up to a pump. The pair argued
about Doss’s request for gas money. Defendant threw money at Doss
but then picked it up, refusing to pay for her gas. Doss claimed that
defendant threw a significant amount of money at her and she tried to
take $20 for her purchase. Defendant testified that he had only a few
singles in his possession.
When defendant refused to pay for her gas, Doss pulled away
from the pump and parked near the gas station convenience store.
Doss ordered defendant to exit her car. Defendant had been talking to
a friend on his cell phone during this encounter and asked the friend to
pick him up. Defendant told Doss that he would not leave her vehicle
until his friend arrived. The pair continued arguing and defendant told
his friend that he needed to end their telephone call because “I'm
about to beat this bitch’s ass.” Defendant then attempted to take
Doss’s keys from the ignition. Doss struck defendant to prevent him
from taking her keys. In response, defendant grabbed Doss by the
hair on the back of her head and punched her several times in the face.
A small pistol was then produced. Defendant asserted that Doss took
the pistol from her purse and shot twice at him. Defendant claimed
that he tried to wrest the gun away from Doss and she shot him in the
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hand in the process. Doss testified, however, that defendant removed
the pistol from his waistband and struck her several times on the head
and face with it. Doss alleged that she struggled with defendant for the
gun and it went off twice.
After the shots were fired, Doss jumped from her car and ran
into the gas station. She asked the attendant to call 911 and told him
that she had shot defendant. Doss hid in the restroom and personally
called 911 as well. Defendant followed Doss into the gas station and
also told the attendant that Doss had shot him. The witnesses testified
that defendant’s hands were not visible on the gas station’s
surveillance footage, but the attendant asserted that defendant was
carrying a pistol, pointing down, in his left hand.
Defendant walked away from the scene and headed toward a
nearby hospital. He was stopped along the way. Officers tracked him
by following a trail of blood. They found his cell phone thrown
behind a privacy fence next to the gas station. The pistol was never
recovered.
People v. Gray, No. 307763, 2013 WL 1149815, *1-2 (Mich. Ct. App. Feb. 14,
2013).
Petitioner filed a direct appeal in which he raised the following claims:
I.
Defendant was denied a fair trial by testimony from the
complaining witness that defendant sells drugs at night to “little
dudes” on his block; trial counsel was ineffective for failing to
object. US Const Am VI; XIV.
II.
Defendant was denied a fair trial because of the failure by the
police and prosecutor to adequately investigate this case,
preventing defendant from presenting res gestae witnesses and
forensic evidence to prove his innocence. US Const Am XIV.
III.
The trial court erred in its findings of fact by failing to consider
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the defense of justification/self-defense to the charges of felony
firearm and felonious assault, and the verdict is against the
great weight of the evidence.
(See ECF No.10-29 at Pg ID 849.) The Michigan Court of Appeals rejected
Petitioner’s claims and affirmed his convictions. Gray, 2013 WL 1149815.
Petitioner filed an application for leave to appeal to the Michigan Supreme Court,
which the Court denied. People v. Gray, 832 N.W.2d 247 (Mich. 2013).
Petitioner filed the present habeas corpus petition, incorporating the
arguments raised in the Michigan Court of Appeals as the grounds for relief.
Respondent filed an Answer to the petition on May 21, 2014, contending that
Petitioner’s first and part of his second claims are procedurally defaulted and that
all of his claims lack merit. (ECF No. 9.)
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides for
the following standard of review by a federal habeas court:
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 it appears that–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d). The United States Supreme Court has elaborated upon the
standards set forth in these two clauses.
With respect to the “contrary to” clause, the Court advised:
[A] state-court decision can be “contrary to” this Court’s clearly
established precedent in two ways. First, a state-court decision is
contrary to this Court’s precedent if the state court arrives at a
conclusion opposite to that reached by this Court on a question of law.
Second, a state-court decision is also contrary to this Court’s
precedent if the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to ours.
Williams v. Taylor, 529 U.S. 362, 405 (2000). Under the “unreasonable
application” clause, habeas relief is available if “the state court identifies the
correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Dennis v.
Mitchell, 354 F.3d 511, 517 (6th Cir. 2003) (citing Williams, 529 U.S. at 413). This
clause is also triggered when a “state court decision either unreasonably extends or
unreasonably refuses to extend a legal principle from the Supreme Court precedent
to a new context.” Keith v. Mitchell, 455 F.3d 662, 669 (6th Cir. 2006). A state
court decision is not “unreasonable” simply because it is “incorrect or erroneous.”
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Wiggins v. Smith, 539 U.S. 510, 520 (2003). “The state court’s application must
have been ‘objectively unreasonable.’ ” Id. (citing Williams, 529 U.S. at 409).
As suggested by the above-quoted language, AEDPA’s standard of review is
“difficult to meet . . . [as it is a] highly deferential standard.” Cullen v. Pinholster,
563 U.S. – , 131 S. Ct. 1388, 1398 (2011); Renico v. Lett, 559 U.S. 766, 773
(2010) (“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.’”) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997) and
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)). In fact, “[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. – , 131 S. Ct. 770, 786 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (per curiam)). Principles of
federalism, comity, and parity between the state and federal court systems animate
this deference: as the Supreme Court has explained, “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). Indeed, a
“readiness to attribute error [to a state court’s decision] is inconsistent with the
presumption that state courts know and follow the law.” Woodford, 537 U.S. at 24,
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123 S.Ct. at 360. “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.” Harrington, 131 S.Ct. at 786
(quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J.,
concurring in judgment)).
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 [Supreme Court precedent].”
Harrington, 131 S.Ct. at 786. Therefore, in order to obtain habeas relief in federal
court, a state prisoner is required to show that the state court’s rejection of his
claim “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 786–87.
III. Discussion
A. Ground One
Petitioner first claims that he was denied a fair trial when Doss testified that
Petitioner sells drugs to young people on his block and that counsel was ineffective
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for failing to object to this testimony. Respondent contends that Petitioner’s claim
involving the evidence of his drug activities is procedurally defaulted, because
Petitioner failed to object to the introduction of this evidence at trial and the
Michigan Court of Appeals relied on this failure, at least in part, in rejecting
Petitioner’s claim on appeal. Petitioner, however, contends that his trial counsel
was ineffective for failing to object.
“Where a defendant has procedurally defaulted a claim by failing to raise it
on direct review, the claim may be raised in habeas only if the defendant can first
demonstrate either ‘cause’ and actual ‘prejudice[.]’ ” Bousley v. United States, 523
U.S. 614, 622 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 485 (1986)).
Ineffective assistance of counsel may establish cause for procedural default.
Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). However, because the “cause
and prejudice” inquiry for the procedural default issue merges with an analysis of
the merits of an ineffective assistance of counsel claim, many federal habeas courts
find it easier to simply consider the merits of the claim. See, e.g. Cameron v.
Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004).
Petitioner contends that Doss’s references to his illegal drug activities were
irrelevant and prejudicial and inadmissible under Rules 401, 402, and 403 of the
Michigan Rules of Evidence. Petitioner further claims that such evidence was
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admitted for the improper purpose of establishing his propensity to commit the
charged offenses, in violation of Michigan Rule of Evidence 404(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
States. Id. 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). State-court evidentiary
rulings may be cognizable on habeas review where such rulings resulted in the
violation of a defendant’s due process rights. However “[g]enerally state-court
evidentiary rulings cannot rise to the level of due process violations unless they
‘offend[ ] some principle of justice so rooted in the traditions and conscience of our
people as to be ranked as fundamental.’ ” Montana v. Egelhoff, 518 U.S. 37, 43
(1996) (quoting Patterson v. New York, 432 U.S. 197, 202 (1977)).
The Michigan Court of Appeals rejected Petitioner’s claim based on the
admission of this evidence. Although agreeing with Petitioner that the evidence
was “completely irrelevant” and “should not have been admitted”, the court
concluded that its admission did not affect his substantial rights. Gray, 2013 WL
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1149815, at *3. The state court reasoned:
“Defendant was tried before a judge, not a jury. A judge, unlike a
juror, possesses an understanding of the law which allows him to
ignore such errors and to decide a case based solely on the evidence
properly admitted at trial.” People v. Jones, 168 Mich. App 191, 194;
423 NW2d 614 (1988). Absent any evidence to the contrary, a trial
court is presumed to have done just that at a bench trial. People v.
Wofford, 196 Mich.App 275, 282; 492 NW2d 747 (1992).
Gray, 2013 WL 1149815, at *3. The court’s adjudication of Petitioner’s claim was
neither contrary to nor an unreasonable application of Supreme Court precedent.
See Harris v. Rivera, 454 U.S. 339, 346 (1981) (per curiam) (“In bench trials,
judges routinely hear inadmissible evidence that they are presumed to ignore when
making decisions.”); United States v. Joseph, 781 F. 2d 549, 552 (6th Cir. 1986)
(stating that “[i]t is well settled that in a non-jury trial the introduction of
incompetent evidence does not require a reversal in the absence of an affirmative
showing of prejudice.”).
The trial court issued a written decision in Petitioner’s case, which this Court
has reviewed. (ECF No. 10-31.) There are no references to Petitioner’s drug
dealing activities. Instead, the decision reflects that the trial court focused on the
relevant evidence to decide what he found to be the salient issue: “whether Doss
brought the gun into the car and took it out of her purse during the altercation with
Defendant, or whether Defendant brought the gun into the car, pistol-whipped
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Doss with it and got shot in the process.” (Id. at 2.) None of the facts that the trial
court relied on to resolve this issue had anything to do with Petitioner’s asserted
drug dealing. (Id. at 2-3.)
As there is no evidence that the trial court considered the evidence of
Petitioner’s drug activities in reaching its verdict, Petitioner was not prejudiced by
the admission of this evidence at his bench trial. For this reason, as the Michigan
Court of Appeals concluded, his related ineffective assistance of counsel claim
lacks merit. See Gray, 2013 WL 1149815, at *4. This is because to establish
ineffective assistance of counsel, Petitioner must show that counsel’s performance
was deficient and that counsel’s deficient performance prejudiced Petitioner.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2053, 2064 (1984).
B. Ground Two
Petitioner next claims that the police and the prosecutor failed to adequately
investigate the case against him. Specifically, Petitioner argues that the police
should have inspected Doss’s car for bullets or bullet holes and that they should
have interviewed more witnesses than the gas station clerk. Apparently
surveillance video of the gas station store’s interior shows two customers present at
the time of the incident. (See ECF No. 10-29 at Pg ID 859-60.)
The Michigan Court of Appeals rejected this claim, reasoning with respect to
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an investigation of Doss’s car:
Defendant maintains that had the police officers who responded to the
scene “adequately searched the car for bullets or bullet holes,”
defendant could have corroborated his claim that Doss shot him
intentionally. However, one investigating officer testified that the
type of pistol described by the witnesses would not have ejected spent
bullet shells and therefore no such evidence could have been found.
Moreover, the police did examine Doss’s car. An evidence technician
took numerous photographs of the blood evidence inside the car and
found no bullet holes. One responding officer testified on
cross-examination that he had searched the car at the scene and also
found no bullet holes.
Gray, 2013 WL 1149815, * 4. With respect to the officers’ failure to interview the
gas station customers, the court wrote:
In relation to the potential res gestae witnesses, the officers that
testified at trial acknowledged that no one spoke to the customers
inside the gas station. And defendant complained of this failure during
his testimony at trial. However, the prosecutor had no duty to produce
these witnesses, only a duty to notify defendant of known witnesses
and to provide assistance in locating witnesses when requested.
[People v. Burwick, 450 Mich. 281, 288-89 (1995)], citing MCL
767.40a. Moreover, defendant clearly and unequivocally waived his
right to pursue, investigate, or otherwise use at trial the potential
testimony of these witnesses. At a January 26, 2011 pretrial
conference, defense counsel noted that he had reviewed the
surveillance footage from the gas station and discovered that there
were two witnesses of whom he had no prior knowledge. Defense
counsel apparently attempted to discover the identities of those
individuals. Defense counsel advised defendant that those witnesses
could provide testimony that might affect the outcome of the trial.
Defendant did not want to wait for defense counsel to investigate the
matter further and instead insisted that the matter proceed to trial as
scheduled on the following day. The court warned defendant that he
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would be precluded from challenging his convictions based on the
absence of those witnesses, but defendant nevertheless decided to
proceed to trial.
Id. The Michigan Court of Appeals concluded that Petitioner had therefore waived
any error related to the absence of these potential witnesses. Id. Petitioner is not
entitled to habeas relief.
First, contrary to Petitioner’s allegation, an officer did look inside Doss’s car
for bullets or bullet holes and found none. (2/21/11 Trial Tr. at 90.) Further, at a
pretrial hearing, Petitioner specifically waived his claim relating to the failure to
investigate other witnesses. (1/26/11 Hr’g Tr. at 3-4.) One who waives his rights
under a rule may not then seek appellate review of a claimed deprivation of those
rights, for his waiver has extinguished any error. United States v. Olano, 507 U.S.
725, 733-34 (1993). In any event, there is no Supreme Court caselaw which
required the police or prosecutor to search for or develop the evidence at issue.
The Supreme Court’s pronouncements on the duty to preserve evidence have
been summarized by the Sixth Circuit Court of Appeals as follows:
“Under the Due Process Clause, the Supreme Court has developed
‘what might loosely be called the area of constitutionally guaranteed
access to evidence.’ ” United States v. Jobson, 102 F.3d 214, 218 (6th
Cir. 1996) (quoting California v. Trombetta, 467 U.S. 479, 485
(1984)). In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), the Supreme Court held that “suppression by the
prosecution of evidence favorable to an accused upon request violates
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due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” Id. at 87, 83 S.Ct. 1194. In order for evidence to be
“material,” it “must both possess an exculpatory value that was
apparent before the evidence was destroyed, and be of such a nature
that the defendant would be unable to obtain comparable evidence by
other reasonably available means.” Trombetta, 467 U.S. at 488-89,
104 S.Ct. 2528. Thus, the Supreme Court established in Trombetta
that states have a constitutional duty “to preserve evidence . . . that
might be expected to play a significant role in the suspect’s defense.”
Id. at 488, 104 S.Ct. 2528.
Four years after Trombetta, the Supreme Court distinguished
material exculpatory evidence from “potentially useful” exculpatory
evidence in Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333,
102 L.Ed.2d 281 (1988). Youngblood established that “the
government does not have ‘an undifferentiated and absolute duty to
retain and to preserve all material that might be of conceivable
evidentiary significance in a particular prosecution.’ ” United States v.
Wright, 260 F.3d 568, 571 (6th Cir. 2001) (quoting Youngblood, 488
U.S. at 58, 109 S.Ct. 333). “[T]he Due Process Clause requires a
different result when we deal with the failure of the State to preserve
evidentiary material of which no more can be said than that it could
have been subjected to tests, the results of which might have
exonerated the defendant.” Youngblood, 488 U.S. at 57, 109 S.Ct.
333. In order for a court to hold that the government violated a
defendant’s due-process rights with regard to potentially useful
exculpatory evidence, the defendant must show that the government
acted in “bad faith.” Id. at 58, 109 S.Ct. 333. A showing that the
government was negligent, even grossly negligent, is insufficient to
establish bad faith. Wright, 260 F.3d at 571.
United States v. Turner, 287 F. App’x 426, 431-32 (6th Cir. 2008). There is no
suggestion that the police acted in bad faith when they failed to further search
Doss’s car for bullets or bullet holes or when they did not interview the gas station
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customers. Moreover, this evidence has no exculpatory value. As to evidence of
bullets or bullet holes inside Doss’s vehicle, there is no dispute that Petitioner was
shot inside the vehicle and no reason to conclude that bullet holes found within the
car would have provided evidence of Doss’s intent when she shot Petitioner. As to
the customers inside the gas station store, the incident occurred outside, in Doss’s
car. Whether customers inside the gas station store subsequently saw Petitioner
with the gun when he entered the store’s vestibule would not prove or disprove his
guilt of the crimes for which he was convicted.
In short, the state court’s adjudication of Petitioner’s claim that the police
failed to properly investigate the crime scene was not contrary to nor an
unreasonable application of Supreme Court precedent.
C. Ground Three
In his final ground for relief, Petitioner claims that there was insufficient
evidence to support the judge’s verdict and that the judge erred in rejecting
Petitioner’s self-defense claim.
The Due Process Clause prohibits a State from convicting “a person of a
crime without proving the elements of that crime beyond a reasonable doubt.”
Fiore v. White, 531 U.S. 225, 228-29 (2001). Sufficient evidence supports a
conviction if, after viewing the evidence (and the inferences to be drawn
15
therefrom) in the light most favorable to the prosecution, the court concludes that
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979);
Apanovitch v. Houk, 466 F.3d 460, 488 (6th Cir. 2006). This standard applies to
bench trials, as well as to jury trials. See e.g., United States v. Bronzino, 598 F. 3d
276, 278 (6th Cir. 2010). It “requires successful challengers to meet a very high
threshold . . ..” Apanovitch, 466 F.3d at 488. The standard of review does not
permit the federal court to make its own subjective determination of guilt or
innocence; the standard gives full play to the responsibility of the trier of fact to
resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from the basic facts to the ultimate facts. Herrera v. Collins, 506 U.S.
390, 401-02 (1993); McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003). In
considering a sufficiency of the evidence claim, “circumstantial evidence is entitled
to equal weight as direct evidence.” Durr v. Mitchell, 487 F.3d 423, 449 (6th Cir.
2007).
Under Michigan law, the elements of assault with a dangerous weapon or
felonious assault are: (1) an assault, (2) with a dangerous weapon, and (3) with the
intent to injure or place the victim in reasonable apprehension of an immediate
battery. See Gardner v. Kapture,, 261 F. Supp. 2d 793, 804 (E.D. Mich. 2003)
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(citing People v. Lawton, 492 N.W.2d 810 (Mich. Ct. App. 1992)). The elements
of felony-firearm are that the defendant possessed a firearm while committing, or
while attempting to commit, a felony offense. See Parker v. Renico, 506 F.3d 444,
448 (6th Cir. 2007). The elements of felon in possession of a firearm in Michigan
are: (1) that the defendant was convicted of a felony, (2) that the defendant
possessed a firearm, and (3) that at the time of possession less than three or five
years, depending on the underlying felony, has passed since the defendant had
completed his term of incarceration, satisfied all conditions of probation and
parole, and paid all fines. Id. There was sufficient evidence for the trial court judge
to find Petitioner guilty beyond a reasonable doubt of these crimes and reject his
self-defense claim if the court found Doss’s trial testimony more credible than
Petitioner’s testimony. The trial judge in fact found Doss more credible and stated
some of the reasons for reaching this conclusion in his written decision. (ECF No.
10-31 at 2-3.) As previously indicated, the assessment of witness credibility is
beyond the scope of federal habeas review. Gall v. Parker, 231 F.3d 265, 286 (6th
Cir. 2000) (citing Schlup v. Delo, 513 U.S. 298, 330 (1995)).
Petitioner therefore has not demonstrated his entitlement to habeas relief
based on his sufficiency of the evidence claim.
IV. Conclusion
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For the reasons stated, the Court concludes that Petitioner is not entitled to
habeas relief and therefore is denying his application for the writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Before Petitioner may appeal this decision, he must
first obtain a certificate of appealability (“COA”). See 28 U.S.C. § 2253(c)(1)(A);
Fed. R. App. P. 22(b). For the reasons that follow, the Court declines to issue a
COA and leave to proceed in forma pauperis on appeal.
A certificate of appealability 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).
Where a court rejects a habeas claim on the merits, the substantial showing
threshold is met if the petitioner demonstrates that reasonable jurists would find the
district court’s assessment of the constitutional claim debatable or wrong. See
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this
standard by demonstrating 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). “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rule 11(a) of
the Rules Governing § 2254 Cases.
Petitioner has not demonstrated a substantial showing of the denial of a
constitutional right. Even if Doss’s testimony concerning Petitioner’s alleged drug
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activities should not have been admitted, its admission did not rise to the level of a
due process violation. Petitioner’s claim that the police failed to adequately
investigate the crime scene also does not establish a violation of his due process
rights. Finally, there was sufficient evidence to support Petitioner’s convictions.
Accordingly, a COA is not warranted in this case. The Court also is denying
Petitioner permission to proceed on appeal in forma pauperis because an appeal
would be frivolous. See 28 U.S.C. § 1915(a)(3); Fed. R. App. 24(a).
Accordingly,
IT IS ORDERED, that Petitioner’s application for the writ of habeas corpus
is DENIED;
IT IS FURTHER ORDERED, that the Court declines to issue a Certificate
of Appealability and leave to appeal in forma pauperis.
S/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: December 11, 2014
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, December 11, 2014, by electronic and/or
U.S. First Class mail.
S/ Richard Loury
Case Manager
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