Ryan v. Smith

Filing 80

OPINION and ORDER Denying Habeas Petition, Declining to Issue a Certificate of Appealability, but Granting Leave to Appeal In Forma Pauperis. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SEAN MICHAEL RYAN,
Petitioner,
v.

Case No. 14-cv-11611

ROBERT NAPEL,

Honorable Linda V. Parker

Respondent.
_______________________________/
OPINION AND ORDER DENYING HABEAS PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
BUT GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
I.

INTRODUCTION
Michigan prisoner Sean Michael Ryan (“Petitioner”) has filed a pro se

habeas corpus petition challenging his state convictions for seven counts of firstdegree criminal sexual conduct. See Mich. Comp. Laws § 750.520b(1)(a) (sexual
penetration of a person under the age of thirteen). Petitioner alleges as grounds for
relief that: (1) the state courts deprived him of due process by denying his requests
for an evidentiary hearing; (2) appellate counsel was ineffective for failing to raise
stronger claims on direct appeal; (3) trial counsel’s omissions deprived him of
effective assistance; (4) the police delayed his arraignment to obtain additional
information justifying his arrest; (5) the prosecutor relied on perjured testimony;
(6) the prosecution suppressed exculpatory evidence; (7) the police destroyed or

failed to preserve exculpatory video evidence; (8) his arrest was not supported by
probable cause; (9) the trial court erroneously admitted his partially videotaped
statement to the police; (10) the cumulative effect of errors resulted in an unfair
trial; (11) he is actually innocent of the crimes for which he is incarcerated; and
(12) the Court should grant leave to amend the petition if he raises additional
claims. Respondent Robert Napel argues in an answer to the petition that several
of Petitioner’s claims are not cognizable on habeas review and that the state courts’
decisions on Petitioner’s other claims were neither contrary to Supreme Court
precedent, unreasonable applications of Supreme Court precedent, nor
unreasonable determinations of the facts. The Court agrees. Accordingly, the
Court is denying Petitioner habeas petition relief.
II.

BACKGROUND
Petitioner was charged in Saginaw County, Michigan with nine counts of

first-degree criminal sexual conduct involving his eleven-year-old daughter. The
Michigan Court of Appeals summarized the evidence at Petitioner’s jury trial in
Saginaw County Circuit Court as follows:
On March 1, 2010, the police were notified by local school personnel
that a student had made allegations that her father, defendant, had
sexually abused her on various occasions. The police met with
defendant at the school, then transported him to the police department
for questioning. Meanwhile, a detective took the victim to a local
abuse and neglect center for purposes of a forensic interview. At the
police department, defendant signed a form indicating that he
2

understood and waived his Miranda1 rights. He provided the police
with the addresses of four properties that he owned, and defendant
consented to a search of those locations.
In an initial police interview on March 1, defendant denied ever
having sexual contact with his daughter. The interview was recorded,
but a computer failure or human error resulted in the data or recording
being lost. Defendant was then transported to the county jail. The
next day, March 2, detectives went to the county jail with the intention
of interviewing defendant once again. However, the detectives
decided not to interview defendant because he complained of a lack of
sleep. Defendant was again interviewed by police on March 3, 2010,
and the interview was recorded and played for the jury. During the
interview, defendant confessed to engaging in numerous instances of
sexual contact and penetration with his daughter, including vaginal
and anal intercourse, as well as fellatio and cunnilingus.2 The trial
court denied defendant’s pretrial motion to suppress the confession
….
The victim testified that she was 12 years old at the time of trial
and that she had stopped living with her mother and went to live with
her father in 2009 at a house in Saginaw that he shared with his wife
(the victim’s stepmother) and the victim’s two half-brothers. The
victim indicated that her stepmother went to Mississippi for a wedding
sometime in June 2009, leaving defendant to care for her and her
brothers. Shortly after her stepmother left, defendant called the victim
into his bedroom and demanded that she remove all of her clothing.
She testified that defendant put his penis in her vagina and thereafter
placed his penis in her mouth, leading to ejaculation. The victim was
11 years old at the time. The act of vaginal intercourse and the act of
1

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).

2

[O]n March 3, 2010, there were actually two interviews of defendant by police. A
detective conducted an initial interview in which defendant allegedly confessed to
sexually abusing his daughter; however, while this interview was successfully
videotaped, the volume for the audio was turned down, so the recording was silent.
The detective discovered the problem and then conducted a second interview,
which was successfully recorded and played for the jury.
3

fellatio in this first episode or transaction gave rise to counts 3 and 9
of the information charging CSC-1. Defendant’s daughter testified
that he continued to engage in various acts of sexual contact and
penetration with her after the initial incident and that the sexual abuse
occurred numerous times at the various properties owned by
defendant.
The victim stated that on February 28, 2010, her stepmother
and brothers were gone from the house and defendant wanted her to
remove her clothing, but she refused and climbed under her bed. She
testified that defendant took his belt off and started swinging it under
the bed, striking her once on the leg. The next day at school the
victim told the school counselor about the sexual abuse.
Defendant took the stand and denied any sexual contact with
his daughter, suggesting that she had made it all up in an effort to
return to her mother out of state. Defendant testified that his
confession was false and resulted from being deprived of medical
attention and his pain medications as well as threats that his sons
would be taken away from his wife and put in foster care.
People v. Ryan, 819 N.W.2d 55, 58-59 (Mich. Ct. App. 2012) (footnotes in original
as notes 2 and 3).
The trial court granted Petitioner’s motion for a directed verdict of acquittal
as to count two (sexual penetration with a vibrator), and on November 5, 2010, the
jury acquitted Petitioner of count one (sexual penetration with a vibrator). On the
same date, the jury found Petitioner guilty of the seven remaining counts of
criminal sexual conduct in the first degree.
On December 14, 2010, the trial court sentenced Petitioner to imprisonment
for twenty-five to fifty years for each count of criminal sexual conduct. The court
4

ordered the sentences to run concurrently, with the exception of count nine, which
the court ordered to run consecutively to count three.3
Through counsel, Petitioner filed a direct appeal, arguing that the trial court
erred by denying his motion to suppress his confession and by ordering
consecutive sentences. Petitioner raised several other claims in a supplemental pro
se brief. The Michigan Court of Appeals affirmed Petitioner’s convictions and
sentences after concluding “that the trial court correctly interpreted and applied
MCL 750.520b(3) with respect to consecutive sentencing, that the court did not err
by denying defendant’s motion to suppress his confession, and that the remainder
of defendant’s appellate arguments lack merit.” Ryan, 819 N.W.2d at 58. On
October 4, 2012, the Michigan Supreme Court denied leave to appeal because it
was not persuaded to review the issues. See People v. Ryan, 820 N.W.2d 918
(Mich. 2012).
Petitioner raised multiple claims in a motion for relief from judgment, which
the trial court denied. The trial court stated that all of Petitioner’s claims, except
for his claim about appellate counsel, were raised on direct appeal. The court
determined that it was precluded from adjudicating the claims Petitioner raised on
3

Pursuant to Mich. Comp. Laws § 750.520b(3), a state sentencing court “may order
a term of imprisonment imposed under this section to be served consecutively to
any term of imprisonment imposed for any other criminal offense arising from the
same transaction.”
5

direct appeal and that the claim about appellate counsel lacked merit. See Op. and
Order Den. Def.’s Mot. for Relief from J., People v. Ryan, No. 10-034589-FC,
(Saginaw Cty. Cir. Ct. Dec. 13, 2012), ECF No. 48-12.
Petitioner appealed the trial court’s decision, but the Michigan Court of
Appeals denied leave to appeal because Petitioner failed to establish entitlement to
relief under Michigan Court Rule 6.508(D). See People v. Ryan, No. 315897
(Mich. Ct. App. Nov. 1, 2013), ECF No. 48-15. On February 28, 2014, the
Michigan Supreme Court denied Petitioner leave to appeal for the same reason.
See People v. Ryan, 843 N.W.2d 521 (Mich. 2014). On April 17, 2014, Petitioner
filed his habeas petition.
III.

STANDARD OF REVIEW
“The statutory authority of federal courts to issue habeas corpus relief for

persons in state custody is provided by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v.
Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a
state prisoner’s application for the writ of habeas corpus unless the state court’s
adjudication of the prisoner’s claims on the merits
(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
6

(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).
Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas
court may grant the writ 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. Under the
“unreasonable application” clause [of § 2254(d)(1)], a federal habeas
court may grant the writ 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.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O’Connor, J., opinion of the
Court for Part II). “[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. Rather,
that application must also be unreasonable.” Id. at 411.
“AEDPA thus imposes a ‘highly deferential standard for evaluating statecourt rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that
state-court decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “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

7

decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on 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.
“ ‘In a proceeding instituted by an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of a State court, a determination of a
factual issue made by a State court shall be presumed to be correct,’ unless
rebutted by ‘clear and convincing evidence’. 28 U.S.C. § 2254(e)(1).” Holland v.
Rivard, 800 F.3d 224, 242 (6th Cir. 2015), cert. denied, 136 S. Ct. 1384 (2016).
Finally, “review under § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S.
170, 181 (2011).
IV.

ANALYSIS
A.

Claim One: Denial of an Evidentiary Hearing

Petitioner alleges that the state courts deprived him of his right to due
process and his right to present a complete defense by denying or ignoring his
requests for evidentiary hearings to establish a factual record. Petitioner contends
that, if he had been granted an opportunity to develop the record, his illegally

8

obtained statement would have been suppressed, he would have received a new
trial, and he probably would have been found not guilty.
The record before the Court reveals that the trial court conducted an
evidentiary hearing on Petitioner’s motion to suppress his statement to the police.
(See 10/28/10, 10/29/10 & 11/2/10 Hr’g Trs., ECF Nos. 48-3, 48-4 & 48-5.) As
for the failure to grant an evidentiary hearing on Petitioner’s post-conviction
motions for a new trial and relief from judgment, Petitioner’s claim lacks merit
because
the Sixth Circuit has consistently held that errors in post-conviction
proceedings are outside the scope of federal habeas corpus review.
See Kirby v. Dutton, 794 F.2d 245, 246-47 (6th Cir.1986); Roe v.
Baker, 316 F.3d 557, 571 (6th Cir. 2002) . . . . [C]laims challenging
state collateral post-conviction proceedings “cannot be brought under
the federal habeas corpus provision, 28 U.S.C. § 2254,” because “ ‘the
essence of habeas corpus is an attack by a person in custody upon the
legality of that custody, and . . . the traditional function of the writ is
to secure release from illegal custody.’ ” Kirby, 794 F.2d at 246 . . . .
A due process claim related to collateral post-conviction proceedings,
even if resolved in a petitioner’s favor, would not “result [in] . . .
release or a reduction in . . . time to be served or in any other way
affect his detention because we would not be reviewing any matter
directly pertaining to his detention.” Kirby, 794 F.2d at 247. . . .
Accordingly, [the Sixth Circuit has] held repeatedly that “the scope of
the writ [does not] reach this second tier of complaints about
deficiencies in state post-conviction proceedings,” noting that “the
writ is not the proper means” to challenge “collateral matters” as
opposed to “the underlying state conviction giving rise to the
prisoner’s incarceration.” Id. at 248, 247 . . . .
Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007). Furthermore,
9

it would be an unusual intrusion for federal courts to second-guess
state procedures for resolving motions once they have been presented.
States are independent sovereigns, and the federal government
generally speaking should respect their choices about how to
adjudicate disputes.
. . . [Federal courts] must instead presume that, once a federal claim
comes before a state court, the state judge will use a fair procedure to
achieve a just resolution of the claim – resolving some motions with
neither an evidentiary hearing nor an oral argument, some with an oral
argument alone, some with both.
Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013), cert. denied, 135 S. Ct. 1174
(2015). For the reasons given by the Sixth Circuit in Cress and Good, Petitioner’s
challenge to the state trial court’s post-conviction procedures is not cognizable on
habeas corpus review.
B.

Claim Four: Delay in the Arraignment4

Petitioner claims the police intentionally delayed his arraignment for four
days to obtain additional information justifying his arrest. According to Petitioner,
the police arrested him without a warrant on March 1, 2010, obtained a warrant on
March 4, 2010, and finally brought him before a magistrate for an arraignment on
March 5, 2010. Petitioner contends that this procedure violated his rights under the
Fourth Amendment to the United States Constitution and required suppression of
any evidence collected as a result of the constitutional violation.
4

The Court finds it more convenient to address claims two and three, regarding trial
and appellate counsel, later in this opinion.
10

Petitioner’s Fourth Amendment claim is not cognizable here, because the
Supreme Court held in Stone v. Powell, 428 U.S. 465 (1976), that “where the State
has provided an opportunity for full and fair litigation of a Fourth Amendment
claim, a state prisoner may not be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional search or seizure was
introduced at his trial.” Id. at 494 (internal footnote omitted). “[T]he Powell
‘opportunity for full and fair consideration’ means an available avenue for the
prisoner to present his claim to the state courts, not an inquiry into the adequacy of
the procedure actually used to resolve that particular claim.” Good, 729 F.3d at
639. “Michigan provide[s] an adequate avenue to raise a Fourth Amendment
claim,” Hurick v. Woods, No. 16-1554, 2016 WL 7093988, at *3 (6th Cir. Dec. 5,
2016), and Petitioner has failed to show that his claim was frustrated by a failure in
Michigan’s mechanism for reviewing Fourth Amendment claims.
Even if cognizable here, the record does not support Petitioner’s claim that
the police intentionally delayed the arraignment to gather additional information
justifying his arrest. The police searched Petitioner’s properties and received a
report concerning the complainant’s forensic examination on the same day they
arrested Petitioner, and Petitioner confessed to the crimes on the morning of March
3, 2010, less than 48 hours after his arrest.

11

Although it is not clear from the record why Petitioner was not arraigned
until March 5, 2010, “delay in arraignment, standing alone, without a showing of
prejudice . . . present[s] no federal question.” Streeter v. Craven, 418 F.2d 273,
274 (9th Cir. 1969); see also Stevens v. Berghuis, No. 13-13268, 2016 WL 704966
at *5 (Feb. 23, 2016) (citing Kirkland v. Maxwell, 396 F.2d 687, 688 (6th Cir.
1966) (rejecting the petitioner’s habeas claim of illegal delay in arraignment
because he failed to show any prejudice resulting from the delay)). Petitioner’s
confession was not the fruit of the delay, because he confessed within 48 hours of
his arrest, and he has not alleged that he was prejudiced in any other way.
Petitioner is not entitled to relief on his Fourth Amendment claim.
C.

Claims Five and Six: Perjured Testimony and Suppression of
Evidence

In his sixth claim, Petitioner alleges that the police suppressed exculpatory
evidence that the complainant received a sexual assault examination, that there
were no signs of physical or sexual trauma, and that the police were notified of
these facts. In his fifth claim, Petitioner asserts that two detectives perjured
themselves when they testified at trial that they were unaware of the sexual assault
examination. Petitioner purports to have new evidence that the victim was, in fact,
examined, that the examination was negative for any evidence of sexual or
physical trauma, and that the police were notified of the examination.
12

Petitioner raised his prosecutorial-misconduct claim in his pro se
supplemental brief on direct appeal. The Michigan Court of Appeals rejected all of
Petitioner’s pro se claims for lack of support in the record, for mischaracterizing
the record, or for lack of merit and failure to establish prejudice. The Court of
Appeals concluded that none of the pro se claims warranted reversal of the
convictions.
1.

Clearly Established Federal Law

Prosecutors may not deliberately deceive a court or jurors by presenting
evidence that they know is false. Giglio v. United States, 405 U.S. 150, 153
(1972). Nor may they allow false evidence to go uncorrected when it appears. Id.
But to prevail on a claim that the prosecutor presented false testimony, a habeas
petitioner must show that (1) the testimony was actually false, (2) the testimony
was material, and (3) the prosecutor knew the testimony was false. Amos v.
Renico, 683 F.3d 720, 728 (6th Cir. 2012); Coe v. Bell, 161 F.3d 320, 343 (6th Cir.
1998) (quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989)).
Prosecutors also may not suppress evidence that is favorable to an accused
and material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963).
The components of a true Brady claim are: (1) evidence that is favorable to the
accused, either because it is exculpatory or impeaching; (2) suppression of the

13

evidence by the State, either willfully or inadvertently; and (3) resulting prejudice.
Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
“Brady . . . applies to relevant evidence in the hands of the police, whether
the prosecutors knew about it or not, whether they suppressed it intentionally or
not, and whether the accused asked for it or not.” Harris v. Lafler, 553 F.3d 1028,
1033 (6th Cir. 2009) (internal and end citations omitted). “[E]vidence is material
‘if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.’ ” Strickler, 527
U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Stated
differently, “the materiality standard for Brady claims is met when ‘the favorable
evidence could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.’ ” Banks v. Dretke, 540 U.S. 668, 698
(2004) (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)).
2.

Application

Petitioner stated on the first day of trial that, as far as he knew, no sexual
assault examination was performed on the victim. (11/2/10 Trial Tr. at 4-5, ECF
No. 48-5 at Pg ID 429.) Defense counsel confirmed that there was no report of a
physical examination. (Id. at 6, Pg ID 429.) The complainant, however,
subsequently testified that she was examined by a doctor or a nurse after she gave a

14

statement to the police. (11/3/10 Trial Tr. at 54, ECF No. 48-6 at Pg ID 495.) In
response to this testimony, the lead detective in the case, Jason Ball, testified that
he was never made aware of a physical examination performed on the complainant
and that the first time he heard about the examination was at trial. (Id. at 72, Pg ID
500; 11/4/10 Trial Tr. at 19, ECF No. 48-7 at Pg ID 531.) Detective Andrew
Carlson of the Saginaw City Police Department also testified that he was unaware
of any physical examination being performed on the complainant. (11/3/10 Trial
Tr. at 93-94, ECF No. 48-6 at Pg ID 505.)
Petitioner has acquired information that the complainant was examined on
March 1, 2010, that the test results were negative for disease, trauma, or
pregnancy, and that the test results were reported to a police officer named Joseph
Dutoi. This does not show, however, that Detective Ball or Detective Carlson lied
when they denied knowledge of the physical examination. It is possible that they
were never personally informed of the examination. Petitioner’s perjury claim
fails because he has not shown that the detectives’ testimony was actually false and
that the prosecutor knew the testimony was false.
Petitioner’s Brady claim also fails. Even if the Court were to assume that
the prosecution inadvertently suppressed evidence of the physical examination and
that the results of the examination could have been used for impeachment

15

purposes, the evidence was not material evidence, because Petitioner could have
sexually penetrated the complainant without transmitting a disease, physically
injuring the complainant, or impregnating her. Therefore, evidence about the
physical examination would not have put the whole case in such a different light as
to undermine confidence in the verdict. See Strickler, 527 U.S. at 280.
To conclude, Petitioner fails to prove the elements of a perjury claim or a
Brady claim. Thus, habeas relief is not warranted on Petitioner’s fifth and sixth
claims.
D.

Claim Seven: Failure to Preserve Evidence

Petitioner contends that the police destroyed or failed to preserve a portion
of the videotaped interviews conducted on March 1 and March 3, 2010. Petitioner
maintains that the evidence was exculpatory because the videos would have shown
that the police threatened, intimidated, and coerced him into making a confession
and promised him health care in return for his confession.
Petitioner raised this issue in his pro se supplemental brief in the Michigan
Court of Appeals on direct review. The Court of Appeals rejected Petitioner’s pro
se claims for lack of support in the record, for mischaracterizing the record, or for
lack of merit and failure to establish prejudice. The Court of Appeals concluded
that none of the pro se claims warranted reversal of the convictions.

16

The Due Process Clause of the Fourteenth Amendment applies to claims that
the government failed to preserve or provide a defendant with evidence. See
Arizona v. Youngblood, 488 U.S. 51, 57 (1988). As interpreted by Brady, the good
or bad faith of the State is “irrelevant when the State fails to disclose to the
defendant material exculpatory evidence.” Id. The Supreme Court has held that
“the 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.” Id. (emphasis added). The failure to preserve potentially useful
evidence does not constitute a denial of due process unless a criminal defendant
can show bad faith on the part of the police. Id. at 58.
The record in this case indicates that the failure to preserve videotapes was
the result of human error or a technological problem. Detective Jason Ball, the
lead investigator, testified that Petitioner’s statement to detectives on March 1,
2010, was videotaped on a relatively new digital video recorder. (11/3/19 Trial Tr.
at 100-01, ECF No. 48-6 at Pg ID 507.) Detective Ball was able to create a
computer file from the videotape. (Id.) However, when a secretary attempted to
transcribe the audio portion of the interview, there was nothing in the computer
file, and it was too late to recapture the information because the life span of the

17

videotape was only six to seven days. (Id.) A second interview of Petitioner was
conducted on March 3, 2010, but because the volume was turned down, the audio
portion of the interview was not recorded. (Id. at 102-03.) Later that day,
however, Detective Ball took another statement from Petitioner, and both the audio
and visual portions of the statement were successfully recorded. (Id. at 103.)
Given this record, Petitioner fails to show that the police destroyed evidence
in bad faith. Habeas relief is not warranted on Petitioner’s seventh claim.
E.

Claim Eight: Arrest without Probable Cause

Petitioner asserts that he was arrested without a warrant and on less than
probable cause in violation of the Fourth Amendment. Petitioner claims that, even
if he was not under arrest when he was asked to report to the police station, he was
locked in a small room after arriving at the police station, and his keys and cell
phone were confiscated. Also, when he attempted to leave the room, an alarm
sounded, and the police responded with weapons. According to Petitioner, he was
seized at that point, if not sooner.
Petitioner’s Fourth Amendment claim is not cognizable on federal habeas
review because he had a full and fair opportunity to raise the claim in state court.
Powell, 428 U.S. at 494. Even if cognizable, the complainant’s allegations that
Petitioner sexually abused her was probable cause to arrest Petitioner. Ahlers v.

18

Schebil, 188 F.3d 365, 370 (6th Cir. 1999) (sex abuse victim’s eye-witness
statements “are generally entitled to a presumption of reliability and veracity,” and
law enforcement officers are “entitled to rely on an eye-witness identification to
establish adequate probable cause with which to sustain an arrest.”)
The Supreme Court, moreover, has stated that, “although a suspect who is
presently detained may challenge the probable cause for that confinement, a
conviction will not be vacated on the ground that the defendant was detained
pending trial without a determination of probable cause.” Gerstein v. Pugh, 420
U.S. 103, 119 (1975). In other words, an “illegal arrest or detention does not void
a subsequent conviction.” Id. Therefore, even if Petitioner was arrested on less
than probable cause, he is not entitled to have his convictions vacated.
F.

Claim Nine: Petitioner’s Confession

Petitioner asserts that the trial court erred in admitting evidence of his
statement to the police. According to Petitioner, the confession was inadmissible
because the police coerced him into confessing by delaying his arraignment,
denying him medical treatment, depriving him of sleep, and threatening to have his
sons placed in foster care. The state trial court held an evidentiary hearing on
Petitioner’s claim and concluded that Petitioner’s statement to the police was
voluntary. The Michigan Court of Appeals agreed and held that Petitioner’s

19

confession was freely and voluntarily made under the totality of the
circumstances; it was the product of an essentially free and
unconstrained choice by defendant. Defendant’s will was not
overborne, nor was his capacity for self-determination critically
impaired. The record reflects that the confession was not the result of
intimidation, coercion, or deception. Reversal is unwarranted.
Ryan, 819 N.W.2d at 61.
1.

Clearly Established Federal Law

The test for voluntariness of a confession is whether
the confession [was] the product of an essentially free and
unconstrained choice by its maker? If it is, if [the suspect] has willed
to confess, it may be used against him. If it is not, if his will has been
overborne and his capacity for self-determination critically impaired,
the use of his confession offends due process.
In determining whether a defendant’s will was overborne in a
particular case, the [Supreme] Court has assessed the totality of all the
surrounding circumstances—both the characteristics of the accused
and the details of the interrogation. Some of the factors taken into
account have included the youth of the accused, his lack of education,
or his low intelligence, the lack of any advice to the accused of his
constitutional rights; the length of detention; the repeated and
prolonged nature of the questioning; and the use of physical
punishment such as the deprivation of food or sleep.
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973) (internal quotation marks
and citations omitted); see also Jackson v. McKee, 525 F.3d 430, 433-34 (6th Cir.
2008) (stating that, “[w]hether an interrogation rises to the level of coercion turns
on a spectrum of factors: the age, education and intelligence of the suspect;
whether the suspect was advised of his Miranda rights; the length of the
20

questioning; and the use of physical punishment or the deprivation of food, sleep
or other creature comforts”).
2.

The Evidentiary Hearing

At the state-court hearing on Petitioner’s motion to suppress his confession,
Detective Ruben Vasquez testified that in the late afternoon on March 1, 2010, he
was asked to assist the lead detectives in Petitioner’s case at the Saginaw police
station. (10/28/10 Hr’g Tr. at 6, ECF No. 48-3 at Pg ID 392.) Later, at about 9:45
p.m., Detective Vasquez advised Petitioner of his Miranda rights, and Petitioner
waived his rights. (Id. at 6-7, ECF No. 48-3 at Pg ID 392-93.) Petitioner was
offered food and drinks before the interview, and he did not appear to be lacking
food, sleep, or medical attention. (Id. at 9.) Petitioner mentioned a back injury,
but he walked up and down steps a few times during cigarette breaks and did not
appear to be disabled. (Id. at 11-12, ECF No. 48-3 at Pg ID 394.) Petitioner was
coherent, and he told Detective Vaszquez quite a bit about his background. (Id.)
Detective Jason Ball testified that he did not participate in the interview on
March 1, 2010, and on March 2, 2010, he decided not to interview Petitioner
because Petitioner stated that he had slept only two hours during the previous
night. (Id. at 18-19, Pg ID 395-96.) On March 3, 2010, Detective Ball reminded
Petitioner of his Miranda rights, and Petitioner acknowledged that the Miranda

21

rights still applied to him. (Id. at 21.) Detective Ball testified that he would not
have interviewed Petitioner if Petitioner was not well rested, if he lacked food, or if
he needed a cigarette or bathroom break. (Id. at 30, Pg ID 398.) According to the
detective, Petitioner did not appear to be in pain or in need of medication. (Id. at
31-35, Pg ID 399-400.)
According to Detective Ball, he told Petitioner that it would help if he told
his story to the prosecutor and Petitioner asked whether he and his wife would lose
custody of their sons due to the allegations of sexual misconduct. (Id. at 32-33, 3738, Pg ID 399-400.) But by then, Petitioner already had confessed to sexually
abusing his daughter, and no promises were made to Petitioner in return for his
admissions. (Id. 39-40, Pg ID 400-01.)
Petitioner testified that he was injured in 2002, and that he took a number of
medications for pain management. (Id. at 42-43, Pg ID 401-02.) He explained that
he was taken into custody around 2:45 p.m. on March 1, 2010, and that he was
given his Miranda warnings later that evening. (Id. at 44.) Sergeant Carlson told
Petitioner that the police would make sure he went to a nice place and was given
medical care if he admitted the allegations. (10/29/10 Hr’g Tr. at 6, ECF No. 48-4
at Pg ID 414.) He did not request or receive any medication while in custody, and
on March 2, 2010, he was nauseous, in pain, and shaking. (Id. at 7-9, 11.)

22

Petitioner agreed to talk to the police because of Sergeant Carlson’s promises and
his belief that his wife would lose custody of their children if he did not admit the
allegations. (Id. at 16-18, Pg ID 417.)
The prosecution presented four rebuttal witnesses. Sergeant Craig Irvine
testified that Petitioner was booked at the Saginaw County Jail shortly after
midnight on March 2, 2010, and because he threatened to kill himself if he went to
prison, was placed on suicide watch and kept in an observation cell until March 11,
2010. (11/2/10 Hr’g Tr. at 13-14, ECF No. 48-5 at Pg ID 431.) The cell was lit
with florescent lights twenty-four hours a day, and the inmates were served bag
lunches. (Id. at 15-16, Pg ID 432.) Jail records indicated that Petitioner did not
receive any medication until March 4, 2010. (Id. at 21-23, Pg ID 433-34.)
Detective Vasquez testified on rebuttal that his only contact with Petitioner
was on March 1, 2010, when he read the Miranda rights to Petitioner and
interviewed Petitioner. (Id. at 24, 30, Pg ID 434-35.) He did not make any
promises concerning what would happen to Petitioner if he gave a statement. (Id.
at 24-34, Pg ID 434-36.)
Detective Carlson testified on rebuttal that he and Detective Vasquez
interviewed Petitioner from about 9:40 p.m. to about 11:45 p.m. on March 1, 2010.
(Id. at 35-42, Pg ID 437-38.) He denied making any promises to Petitioner, and he

23

claimed that he did not threaten Petitioner in any way. (Id. at 35-47, Pg ID 43740.)
The lead investigator, Jason Ball, testified that he transported Petitioner from
the county jail to the Saginaw Police Department on March 3, 2010, and that he did
not promise Petitioner anything or threaten Petitioner. (Id. at 51-52, 54, Pg ID
441.) He did tell Petitioner that he would take the information he had and
Petitioner’s statement to the prosecutor’s office and that the prosecutor would
make the final decision about what was to be done. (Id. at 54, Pg ID 441.)
Defense counsel argued at the conclusion of the hearing that the police
officers’ conduct, Petitioner’s poor health, and the conditions at the jail had a
coercive effect on Petitioner, such that his ability to discern and apply his rights
was overcome. (Id. at 61-63, Pg ID 443-44.) The trial court was not persuaded by
Petitioner’s claim that the police improperly obtained his statement, however. (Id.
at 67, Pg ID 445.) The trial court concluded from the totality of the circumstances
that Petitioner’s statement was voluntary and that he had made a valid waiver of
his constitutional rights. (Id. at 66-67, Pg ID 444-45.)
3.

Discussion

Petitioner was a 37-year-old man who waived his Miranda rights on March
1, and acknowledged his rights on March 3. Further, according to the trial court,

24

during his videotaped interview Petitioner appeared to be coherent and oriented.
(Id. at 67-69.) He did not complain of pain, discomfort, or lack of sleep, and he
did not exhibit any pain, discomfort, or confusion. (Id.) He provided direct and
specific answers to questions and, with little prompting, went into specific details
about his actions with his daughter. (Id. at 69.) Petitioner also provided
clarification, background information, and explanations for his behavior, while
also acknowledging that it was wrong. (Id.)
Although Petitioner’s testimony at the evidentiary hearing differed from that
of the police officers, the trial court found incredible Petitioner’s claim that he was
in pain and concerned about his wife’s parental rights. (Id. at 68-69.) The court
said that nothing in the videotape suggested Petitioner was somehow coerced or
that his statement was involuntary. (Id.) The trial court’s credibility determination
is entitled to deference, because this Court, sitting in habeas corpus, has “no
license to redetermine credibility of witnesses whose demeanor has been observed
by the state trial court, but not by [this court.]” Marshall v. Lonberger, 459 U.S.
422, 434 (1983).
Furthermore, the record indicates that Petitioner’s capacity for selfdetermination was not impaired and that his will was not overborne. Therefore,
the state appellate court’s conclusion that Petitioner’s confession was freely and

25

voluntarily made was neither contrary to, nor an unreasonable application of,
Bustamonte. The Court therefore declines to grant relief on Petitioner’s challenge
to the admission of his confession in evidence.
G.

Claim Three: Ineffective Assistance of Trial Counsel

Plaintiff alleges that trial counsel was ineffective for failing to investigate his
case and develop a complete defense. Specifically, Petitioner contends that trial
counsel should have: (1) moved to suppress evidence of Petitioner’s confession
on Fourth Amendment grounds; (2) interviewed the victim to ascertain her version
of the facts; (3) obtained and investigated the complainant’s school records or
interviewed her teachers; (4) objected to the admission of Petitioner’s videotaped
interview with the police on the ground that the police tampered with the
videotape; (5) requested funds for appointment of expert witnesses; and (6)
objected to the prosecutor’s use of perjured testimony. Petitioner raised his claim
about trial counsel in his pro se supplemental brief on direct review, but the
Michigan Court of Appeals determined that the claim did not warrant reversal of
Petitioner’s convictions.
1.

Clearly Established Federal Law

The “clearly established Federal law” here is Strickland v. Washington, 466
U.S. 668 (1984). Under Strickland, Petitioner must demonstrate “that counsel’s

26

performance was deficient” and “that the deficient performance prejudiced the
defense.” Id. at 687. The “deficient performance” prong of this test “requires
showing that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
The “prejudice” prong “requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Id. There must be “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
at 694. “This does not require a showing that counsel’s actions ‘more likely than
not altered the outcome,’ ” but “[t]he likelihood of a different result must be
substantial, not just conceivable.” Richter, 562 U.S. at 111-12 (quoting Strickland,
466 U.S. at 693). In a habeas case, moreover, review of an ineffective-assistanceof-counsel claim
is “doubly deferential,” Cullen v. Pinholster, 563 U.S. 170, 190, 131
S. Ct. 1388, 179 L.Ed.2d 557 (2011), because counsel is “strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment,” Burt v. Titlow, 571 U.S. --, --, 134 S. Ct. 10, 17, 187
L.Ed.2d 348 (2013) (quoting Strickland v. Washington, 466 U.S. 668,
690, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); internal quotation marks
omitted). In such circumstances, federal courts are to afford “both the
state court and the defense attorney the benefit of the doubt.” Burt,
supra, supra, at --, 134 S. Ct., at 13.
27

Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (per curiam).
2.

Application
i.

Failure to Object to the Confession on Fourth
Amendment Grounds

Petitioner asserts that his trial counsel should have argued that his confession
arose from a violation of the Fourth Amendment. Petitioner’s two Fourth
Amendment claims lack merit, however. As discussed earlier, the complainant’s
allegations provided probable cause to arrest Petitioner and the delay in arraigning
Petitioner did not prejudice him. An objection to Petitioner’s arrest or the delay in
his arraignment would have been futile, and “the failure to make futile objections
does not constitute ineffective assistance.” Altman v. Winn, 644 F. App’x 637, 644
(6th Cir.), cert. denied sub nom. Altman v. Brewer, 137 S. Ct. 76 (2016).
ii.

Failure to Interview the Complainant

Next, Petitioner alleges that defense counsel should have interviewed the
complainant to ascertain her version of the facts. But the complainant’s version of
the facts should have been obvious to Petitioner and his attorney from the
complainant’s allegations and the charges against Petitioner. In fact, Petitioner
admitted at trial that the police had informed him in detail what the complainant
had said about him. (11/4/10 Trial Tr. at 39, 65-66, ECF No. 48-4 at Pg ID 556,
562.) Therefore, Petitioner fails to demonstrate that trial counsel’s failure to
28

interview the complainant amounted to deficient performance or that he suffered
prejudice as a result.
iii.

Failure to Obtain the Complainant’s School Records

Petitioner contends that defense counsel should have obtained and
investigated the complainant’s school records or interviewed her teachers.
Petitioner maintains that, if defense counsel had done this, he would have learned
that the complainant had falsely accused students of sexual misconduct, that she
had threatened to do whatever it took to be sent back to Mississippi, and that she
had a propensity to lie, steal, and manipulate.
Defense counsel informed the trial court on the first day of trial that he had
attempted to subpoena the complainant’s school records. (11/2/10 Trial Tr. at 8,
ECF No. 48-5 at Pg ID 430.) Even without the records, defense counsel attempted
to undermine the complainant’s allegations during his cross-examination of her
with the information Petitioner claims the records would have revealed. He
elicited testimony that she did not like living in Saginaw, Michigan, wanted to
return to Mississippi, and was allowed to return after she informed her school
counselor that her father was sexually abusing her. (11/3/10 Trial Tr. at 39, ECF
No. 48-6 at Pg ID 491.) Defense counsel also elicited the complainant’s testimony
that Petitioner and her stepmother subjected her to more discipline than her mother.

29

(Id. at 40.) The implication of defense counsel’s questions was that the
complainant had fabricated the charges in order to be sent back to Mississippi to be
with her mother.
Defense counsel attempted to undermine the complainant’s credibility in
other ways. He pointed to discrepancies between the complainant’s trial testimony
and her statement to her school counselor or other people, and he asked her to
elaborate on a prior statement in which she stated that, on several occasions, her
half-brothers had come into the bedroom when she and her father were having sex.
(Id. at 42-53, Pg ID 492-95.)
Furthermore, Petitioner testified that the complainant had problems at school
and that, according to her teachers, she was alleging that boys were fooling around
with her in school. (11/4/10 Trial Tr. at 32, ECF No. 48-8 at Pg ID 554.)
Petitioner also testified that the complainant had said she was doing whatever it
took to be sent back to Mississippi. (Id.)
Because Petitioner was able to testify about the complainant’s behavior at
school, and because defense counsel effectively cross-examined the complainant,
defense counsel’s alleged failure to obtain the complainant’s school records did not
prejudice the defense. Moreover, Petitioner has not overcome the presumption
that, under the circumstances, defense counsel’s manner of refuting the

30

complainant’s allegations “ ‘might be considered sound trial strategy.’ ”
Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)).
iv.

Failure to Argue that the Police Tampered with
Evidence

Petitioner contends that defense counsel should have objected to the
admission of his videotaped interview with the police on the ground that the police
had tampered with the videotape. Defense counsel was aware of why Petitioner
might be “justifiably suspicious” of the police officers’ handling of the videotapes:
the videotape in which Petitioner denied involvement in the crimes was
unavailable. (11/2/10 Trial Tr. at 7, ECF No. 48-5 at Pg ID 430.) But the record
indicates that the digital recording equipment was relatively new to the police and
that the lack of audio and visual recordings for the first and second interviews was
due to technological problems with the system or human error. There was no
evidence that the police intentionally deleted or destroyed the videotapes.
Furthermore, Detective Ball and Detective Carlson both testified at trial that
Petitioner denied the charges in his first interview. (11/4/10 Trial Tr. at 23, ECF
No. 48-7 at Pg ID 532; 11/4/10 Trial Tr. at 70, 73, ECF No. 48-8 at Pg ID 563-64.)
And it appears that, at some point during the second interview, Petitioner
confessed to the crimes. Therefore, defense counsel’s failed to object to missing
31

videotapes for the first and second interviews did not amount to deficient
performance and did not prejudice the defense.
v.

Failure to Request Funds to Obtain Expert Witnesses

Next, Petitioner contends that defense counsel should have requested funds
for appointment of an expert witness to explain the effect that his withdrawal from
medications might have had on him during the police interrogations. Petitioner
testified about the effect that the lack of medication had on him, however.
(11/4/10 Trial Tr. at 42, 49, ECF No. 48-8 at Pg ID 556, 558.) Moreover,
according to the trial judge, in his videotaped confession, which the jury also
viewed, Petitioner was coherent and oriented and did not seem confused.
According to the trial judge, Petitioner also did not appear to be in any pain or
discomfort during the videotaped confession. Therefore, defense counsel was not
ineffective for failing to request or obtain an expert in pharmacology. The expert,
in all likelihood, would not have persuaded the jury that Petitioner’s withdrawal
from medication caused him to confess to the crimes.
Petitioner also contends that defense counsel should have requested funds to
obtain a computer expert to determine whether the police had tampered with the
videotapes of their interviews with Petitioner. The police, however, provided a
plausible reason for the lack of a good audio and videotape of the first and second

32

interviews, and Petitioner acknowledged at trial that he had confessed to the crimes
during the third interview. Thus, there was no basis for investigating whether the
police tampered with the videotapes, and defense counsel’s failure to obtain a
computer expert did not prejudice Petitioner.
vi.

Failure to Object to Alleged Perjury

In his sixth and final claim about defense counsel, Petitioner alleges that
defense counsel should have objected to the detectives’ perjured testimony that
they were unaware of the physical examination performed on the complainant. As
explained above, however, there is no evidence that the detectives were aware of
the examination. Because Petitioner’s underlying claim of perjury lacks merit,
defense counsel was not ineffective for failing to object to the detectives’
testimony as being false. Hoffner v. Bradshaw, 622 F.3d 487, 509 (6th Cir. 2010).
In conclusion, defense counsel’s omissions did not amount to deficient
performance, and the allegedly deficient performance did not prejudice the
defense. Therefore, the state appellate court’s conclusion – that Petitioner’s claim
about defense counsel provided no rational basis for reversal – was not contrary to,
or an unreasonable application of, Strickland.
H.

Claim Two: Ineffective Assistance of Appellate Counsel

33

Petitioner alleges that his appellate attorney was ineffective because the
attorney failed to raise issues regarding (1) the delay in Petitioner’s arraignment,
(2) the complainant’s sexual assault examination, (3) the destroyed videotape of
his interview with the police, and (4) trial counsel’s ineffectiveness. Petitioner first
raised his claim about appellate counsel in his motion for relief from judgment.
The trial court adjudicated the claim on the merits and concluded that appellate
counsel was not ineffective. The trial court noted that an appellate attorney’s
decision to winnow out weaker arguments and focus on those more likely to
succeed was not evidence of ineffective assistance and that Petitioner failed to
show he was prejudiced by counsel’s failure to raise all his claims on appeal.
The Supreme Court has said that an indigent defendant has no right to
compel his appellate attorney to make every nonfrivolous argument suggested by
the defendant. Evitts v. Lucey, 469 U.S. 387, 394 (1985); Jones v. Barnes, 463
U.S. 745, 751 (1983). To prevail on his claim, Petitioner must show (1) that his
attorney acted unreasonably in failing to discover and raise nonfrivolous issues on
appeal and (2) there is a reasonable probability that he would have prevailed on
appeal if his attorney had raised the issues. Smith v. Robbins, 528 U.S. 259, 285
(2000) (citing Strickland, 466 U.S. at 687-91, 694). Tactical choices about which
claims to raise on appeal “are properly left to the sound professional judgment of

34

counsel. . . .” United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). In fact,
“[t]his process of ‘winnowing out weaker arguments on appeal and focusing on’
those more likely to prevail, far from being evidence of incompetence, is the
hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536
(1986) (quoting Barnes, 463 U.S. at 751–52).
Petitioner’s claim about appellate counsel fails because his underlying
claims lack merit. As explained above, the delay in Petitioner’s arraignment and
the lack of any evidence concerning the complainant’s sexual assault examination
did not prejudice Petitioner. Additionally, the record does not support the
contention that the police intentionally destroyed videotapes of their interviews
with Petitioner, and trial counsel’s omissions did not rise to the level of ineffective
assistance. Consequently, appellate counsel was not ineffective for failing to raise
these issues on appeal.
Even if counsel’s performance was deficient, the deficient performance did
not prejudice Petitioner because he raised the same, or similar, issues in his
supplemental pro se brief, which the Michigan Court of Appeals rejected for lack
of merit. There is not a reasonable probability that Petitioner would have prevailed
on appeal if his attorney had raised the issues. The Court’s inquiry, therefore, “is
at an end; by definition, appellate counsel cannot be ineffective for a failure to

35

raise an issue that lacks merit.” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.
2001).
I.

Claim Ten: Cumulative Errors

Petitioner contends that the sheer number of constitutional errors in his case
combined to deprive him of a fair trial. Post-AEDPA, however, this contention is
not cognizable on habeas corpus review. Sheppard v. Bagley, 657 F.3d 338, 348
(6th Cir. 2011) (citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). The
Court therefore declines to grant relief on Petitioner’s tenth claim.
J.

Claim Eleven: Actual Innocence

Petitioner claims to be actually innocent of the crimes for which he is
incarcerated. He contends that the physical examination of the complainant
showed no evidence of a crime and that the only inculpable evidence against him
was his coerced confession and his daughter’s “coached” testimony.
Claims of actual innocence generally do not “state a ground for federal
habeas relief absent an independent constitutional violation occurring in the
underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400
(1993). “This rule is grounded in the principle that federal habeas courts sit to
ensure that individuals are not imprisoned in violation of the Constitution – not to
correct errors of fact.” Id.

36

In capital cases, the Court may assume that “a truly persuasive
demonstration of ‘actual innocence’ made after trial would render the execution of
a defendant unconstitutional, and warrant federal habeas relief if there were no
state avenue open to process such a claim.” Id. at 417. But this is not a capital
case, and even if it were, “the threshold showing for such an assumed right would
necessarily be extraordinarily high.” Id.
“[W]hatever burden a hypothetical freestanding innocence claim would
require, this petitioner has not satisfied it.” House v. Bell, 547 U.S. 518, 555
(2006). The complainant’s testimony and Petitioner’s own admissions to the
police supported the jury’s verdict, and Petitioner has not presented the Court with
any new and reliable evidence to support his claim of innocence. Therefore,
Petitioner’s freestanding claim of actual innocence is not cognizable in this habeas
corpus case. Herrera, 506 U.S. at 400; Cress, 484 F.3d at 854.
K.

Claim Twelve: “Other Issues”

In his twelfth and final “claim,” Petitioner reserves the right to amend his
petition to raise additional issues. Petitioner, however, has not sought to amend his
petition to add any additional claims. Thus, Petitioner’s twelfth claim is not a basis
for relief.

37

V. CONCLUSION
The state courts’ rejection of Petitioner’s claims did not result in decisions
that were contrary to federal law, unreasonable applications of federal law, or
unreasonable determinations of the facts. The state courts’ decisions clearly were
not so lacking in justification that there was an error beyond any possibility for
fairminded disagreement. Accordingly, the habeas petition is denied.
VI.

CERTIFICATES OF APPEALABILITY AND LEAVE TO APPEAL
IN FORMA PAUPERIS
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no

automatic right to appeal a district court’s denial or dismissal of the petition.
Instead, [the] petitioner must first seek and obtain a [certificate of appealability.]”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 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). “A petitioner satisfies this standard
by demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El,
537 U.S. at 327.
Reasonable jurists could not debate the Court’s assessment of Petitioner’s
claims, nor conclude that the issues deserve encouragement to proceed further.
38

The Court therefore declines to issue a certificate of appealability. Nevertheless,
because Petitioner was granted leave to proceed in forma pauperis in this Court, he
may proceed in forma pauperis on appeal without further authorization. Fed. R.
App. P. 24(a)(3)(A).
For the reasons given above,
IT IS ORDERED that the petition for writ of habeas corpus (ECF No. 1) is
DENIED.
IT IS FURTHER ORDERED that a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that Petitioner may proceed in forma
pauperis on appeal.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: May 16, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, May 16, 2017, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager

39