Irvin v. Winn
Filing
13
OPINION and ORDER Denying the Petition for a Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROYALE LAMPTON IRVIN,
Petitioner,
Case No. 14-13783
Honorable Linda V. Parker
v.
THOMAS WINN,
Respondent.
________________________________/
OPINION & ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
& DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.
Introduction
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan
prisoner Royale Lampton Irvin (“Petitioner”) is challenging his convictions of
second-degree murder in violation of Michigan Compiled Laws Section 750.317
and possession of a firearm during the commission of a felony, second offense, in
violation of Michigan Compiled Laws Section 750.227b, following a jury trial in
the Wayne County Circuit Court. The trial court sentenced Petitioner to
consecutive terms of 35 to 70 years imprisonment and five years imprisonment for
those convictions in 2011. In his petition, he raises claims concerning the
admission of text messages at trial, an upward sentencing departure, and the late
appointment of counsel at his preliminary examination. For the reasons set forth
below, the Court is denying the petition for a writ of habeas corpus. The Court
also is denying a certificate of appealability and leave to proceed in forma pauperis
on appeal.
II.
Facts and Procedural History
Petitioner’s convictions arise from the shooting death of Derry/Derek
Kirkland1 at his home in Detroit, Michigan, during the early morning hours on
January 29, 2011. The Michigan Court of Appeals described the relevant facts as
follows:
The evidence at trial showed that defendant went to the
home of Karen Thomas (“Tee Tee”) at 3:00 a.m. and
knocked on the door. When Derek Kirkland, her
boyfriend, answered the door, defendant asked whether
Tee Tee was home and then shot Kirkland five times
through the door. Several witnesses testified that, after
the shooting, defendant claimed that he did not “do
drivebys,” he did “knock knocks.” Two other individuals
were charged. One of them drove with defendant to
Thomas’ home and the other obtained the address of the
home and information that Thomas, the intended victim,
was home at that time. Both of these individuals were
allowed to plead to lesser charges in exchange for their
testimony. Defendant testified that he went to the home
to confront “Tee Tee,” who he believed had participated
in a rape of his sister two years earlier. Defendant
1
The transcripts and appellate briefs refer to the victim as Derry Kirkland, but the
Michigan Court of Appeals refers to him as Derek Kirkland.
claimed that he acted in self-defense and that, when he
knocked on the door, Kirkland opened the door with a
gun in his hands.
People v. Irvin, No. 306188, 2013 WL 6124275, *1 (Mich. Ct. App. Nov. 21,
2013) (unpublished). These factswhich are presumed correct on habeas review.
See 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
Following his convictions and sentencing, Petitioner filed an appeal of right
with the Michigan Court of Appeals asserting that the trial court erred in admitting
text messages sent by Karen Thomas, that the trial court erred in departing above
the state sentencing guidelines in imposing his sentence, that he was denied due
process because counsel was appointed moments before the start of his preliminary
examination, and that trial counsel was ineffective for failing to object to
prosecutorial misconduct and for failing to properly represent him at sentencing.
The Michigan Court of Appeals denied relief on those claims and affirmed
Petitioner’s convictions and sentences. Id. at *1-3. Petitioner then filed an
application for leave to appeal with the Michigan Supreme Court raising the text
message, upward sentencing departure, and preliminary examination appointment
of counsel claims. The court denied leave to appeal in a standard order. People v.
Irvin, 846 N.W.2d 397 (Mich. 2014).
Petitioner dated his initial federal habeas petition on September 25, 2014. In
that petition, he raised claims concerning the admission of text messages at trial, an
upward sentencing departure, the late appointment of counsel at his preliminary
examination, and the constructive denial/ineffective assistance of trial counsel.
The Court dismissed that petition without prejudice to allow Petitioner to return to
the state courts and exhaust his constructive denial/ineffective assistance of trial
counsel claim.
Petitioner subsequently moved to reopen this case to proceed on an amended
petition containing only his three properly-exhausted claims. The Court granted
Petitioner’s motion and reopened the case on December 2, 2014. Respondent has
since filed an answer to the petition, as amended, contending that it should be
denied because all three claims lack merit and the final claim is also procedurally
defaulted. Petitioner filed a reply to the answer.
III.
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets
forth the standard of review federal courts must use when considering habeas
petitions brought by prisoners challenging their state court convictions. AEDPA
provides in relevant part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d) (1996).
“A state court’s decision is ‘contrary to’ . . . clearly established law if it
‘applies a rule that contradicts the governing law set forth in [Supreme Court
cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different from
[that] precedent.’ ” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam)
(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone,
535 U.S. 685, 694 (2002).
“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal
habeas court to ‘grant the writ if the state court identifies the correct governing
legal principle from [the Supreme] Court but unreasonably applies that principle to
the facts of [the] petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003)
(quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n
order for a federal court to find a state court’s application of [Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been more than
incorrect or erroneous. The state court’s application must have been ‘objectively
unreasonable.’ ” Wiggins, 539 U.S. at 520-21 (citations omitted); see also
Williams, 529 U.S. at 409. “AEDPA thus imposes a ‘highly deferential standard
for evaluating state-court rulings,’ and ‘demands that state-court decisions be given
the benefit of the doubt.’ ” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting
Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
curiam)).
The United States Supreme Court has held that “a state court’s determination
that a claim lacks merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s decision.” Harrington
v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). The Supreme Court has emphasized “that even a strong case for
relief does not mean the state court’s contrary conclusion was unreasonable.” Id.
(citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). A habeas court “must
determine what arguments or theories supported or . . . could have supported, the
state court’s decision; and then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with the holding in
a prior decision” of the Supreme Court. Id. Thus, in order to obtain federal habeas
relief, a state prisoner must show that the state court’s rejection of a 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.; see also
White v. Woodall, -- U.S. --, 134 S. Ct. 1697, 1702 (2014). Federal judges “are
required to afford state courts due respect by overturning their decisions only when
there could be no reasonable dispute that they were wrong.” Woods v. Donald, -U.S. --, 135 S. Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long
as it is within the “realm of possibility” that fairminded jurists could find the state
court decision to be reasonable. Woods v. Etherton, -- U.S. --, 136 S. Ct. 1149,
1152 (2016).
Section 2254(d)(1) limits a federal court’s review to a determination of
whether the state court’s decision comports with clearly established federal law as
determined by the Supreme Court at the time the state court renders its decision.
Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122
(2009) (noting that the Supreme Court “has held on numerous occasions that it is
not ‘an unreasonable application of clearly established Federal law’ for a state
court to decline to apply a specific legal rule that has not been squarely established
by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per
curiam)); Lockyer, 538 U.S. at 71-72. Section 2254(d) “does not require a state
court to give reasons before its decision can be deemed to have been ‘adjudicated
on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does not require
citation of [Supreme Court] cases–indeed, it does not even require awareness of
[Supreme Court] cases, so long as neither the reasoning nor the result of the statecourt decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also
Mitchell, 540 U.S. at 16.
The requirements of “clearly established law” are to be determined solely by
Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly
established Federal law, as determined by the Supreme Court,’ ” and “[i]t therefore
cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 567
U.S. --, 132 S. Ct. 2148, 2155 (2012) (per curiam); see also Lopez v. Smith, -- U.S.
-- 135 S. Ct. 1, 2 (2014) (per curiam). Nevertheless, the decisions of lower federal
courts may be useful in assessing the reasonableness of the state court’s decision.
Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox,
340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 2d 354, 359
(E.D. Mich. 2002).
Lastly, a state court’s factual determinations are presumed correct on federal
habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption
with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th
Cir. 1998). Moreover, habeas review is “limited to the record that was before the
state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
IV.
Discussion
A.
Text Message Claim
Petitioner first asserts that he is entitled to habeas relief because the trial
court erred in admitting text messages sent to and from Karen Thomas and
Petitioner’s co-defendants. Thomas did not testify at trial, but the co-defendants
did. The text messages essentially showed that the co-defendants were angry with
Thomas. Respondent contends that this claim is not cognizable upon habeas
review and otherwise lacks merit.
A federal court may only grant habeas relief to a person who is “in custody
in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Alleged trial court errors in the application of state evidentiary law are
generally not cognizable as grounds for federal habeas relief. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas
court to reexamine state-court determinations on state-law questions”); Serra v.
Michigan Dep’t of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). “Trial court
errors in state procedure or evidentiary law do not rise to the level of federal
constitutional claims warranting relief in a habeas action, unless the error renders
the proceeding so fundamentally unfair as to deprive the petitioner of due process
under the Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir.
2004) (quoting McGuire, 502 U.S. at 69-70); see also Wynne v. Renico, 606 F.3d
867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir.
2007)); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003).
The Michigan Court of Appeals denied relief on this claim finding that the
texts were sent or received by the person testifying and were cumulative of the
witnesses’ testimony, that they were relevant to show the co-defendants’ states of
mind regardless of whether Thomas sent or received the messages, that they
provided the jury with a context for the events, and that their admission did not
violate the Confrontation Clause because they were not testimonial in nature.
Irvin, 2013 WL 6124275 at *1-2. The court also ruled that even if an error
occurred, it was not outcome determinative. Id. at *2.
The state court’s denial of relief is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts. First, to the
extent Petitioner asserts that the trial court erred in admitting the text messages
under Michigan law, he merely alleges a violation of state law which does not
justify federal habeas relief. State courts are the final arbiters of state law and the
federal courts will not intervene in such matters. Lewis v. Jeffers, 497 U.S. 764,
780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987); see also Bradshaw
v. Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir.
2002). Habeas relief does not lie for perceived errors of state law. Estelle, 502
U.S. at 67-68.
Second, with regard to federal law, the admission of the text messages did
not render Petitioner’s trial fundamentally unfair. The text messages were relevant
and admissible to show the co-defendants’ states of mind and to provide context
for their actions, as well as Petitioner’s conduct in approaching the house during
the middle of the night and shooting the victim. Petitioner’s confrontation rights
also were not violated by their admission because the messages were
communications between acquaintances and were not testimonial. See Crawford v.
Washington, 541 U.S. 36, 68 (2004) (ruling that the Confrontation Clause does not
apply to non-testimonial statements).
Moreover, even if an error occurred, it was harmless. For purposes of
federal habeas review, a constitutional error that implicates trial procedures is
considered harmless if it did not have a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,
637 (1993); see also Fry v. Pliler, 551 U.S. 112, 117-18 (2007) (confirming that
the Brecht standard applies in “virtually all” habeas cases); Ruelas v.
Wolfenbarger, 580 F.3d 403, 411 (6th Cir. 2009) (ruling that Brecht is “always the
test” in the Sixth Circuit). As noted by the Michigan Court of Appeals, the text
messages were cumulative of the witnesses’ trial testimony and Petitioner admitted
shooting the victim. Additionally, the co-defendants’ testimony provided
significant evidence of Petitioner’s intentions and guilt of second-degree murder at
trial. Given such circumstances, Petitioner fails to establish that any error in
admitting the text messages had a substantial or injurious effect on the jury’s
verdict. Habeas relief is not warranted on this claim.
B.
Upward Departure Sentencing Claim
Petitioner next asserts that he is entitled to habeas relief because the trial
court erred in imposing a sentence above the recommended state sentencing
guideline range. Respondent contends that this claim is not cognizable upon
habeas review and lacks merit.
A sentence imposed within the statutory limits is generally not subject to
federal habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v.
Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999). Claims which arise out of a
state trial court’s sentencing decision are not cognizable upon habeas review unless
the petitioner can show that the sentence imposed exceeded the statutory limits or
is wholly unauthorized by law. Lucey v. Lavigne, 185 F. Supp. 2d 741, 745 (E.D.
Mich. 2001). Petitioner’s sentence is within the statutory maximum. See Mich.
Comp. Laws § 750.317 (providing that second-degree murder is punishable by any
term of years or life imprisonment). Consequently, it is insulated from habeas
review absent a federal constitutional violation.
The Michigan Court of Appeals denied relief on this claim finding that the
upward departure was justified under state law due to substantial and compelling
reasons, which included the fact that the victim was shot five times when he
answered the door to his home at 3:00 a.m., that Petitioner shot the wrong person
and intended to retaliate against Karen Thomas for the alleged rape of his sister
two years before the shooting, and that Petitioner had recently been paroled on a
felony involving a gun. Irvin, 2013 WL 6124275 at *2-3.
The state court’s decision is neither contrary to Supreme Court precedent nor
an unreasonable application of federal law or the facts. Petitioner’s claim that the
state court improperly departed from the guidelines range concerns a state law
issue which is not cognizable on habeas review. See Austin v. Jackson, 213 F.3d
298, 301 (6th Cir. 2000) (upward departure from state sentencing guidelines does
not implicate federal due process rights); Cheatham v. Hosey, 12 F.3d 211, 1993
WL 478854, *2 (6th Cir. Nov. 19, 1993) (departure from state sentencing
guidelines is a state law issue which is not cognizable on federal habeas review);
Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999) (claim that sentencing
court departed from Michigan sentencing guidelines presents an issue of state law
only and is not cognizable in federal habeas review); Welch v. Burke, 49 F. Supp.
2d 992, 1009 (E.D. Mich. 1999) (same). As discussed, state courts are the final
arbiters of state law and the federal courts will not intervene in such matters.
Lewis, 497 U.S. at 780; Oviedo, 809 F.2d at 328; see also Bradshaw, 546 U.S. at
76; Sanford, 288 F.3d at 860. Petitioner fails to establish a violation of his
constitutional rights. Habeas relief is not warranted on this claim.
C.
Preliminary Examination Appointment of Counsel Claim
Lastly, Petitioner asserts that he is entitled to habeas relief because his due
process rights were violated when the state court appointed defense counsel just
moments before the start of his preliminary examination. Respondent contends
that this claim is barred by procedural default and lacks merit.
Federal habeas relief may be precluded on claims a petitioner has not
presented to the state courts in accordance with the state’s procedural rules.
Wainwright v. Sykes, 433 U.S. 72, 85-87 (1977). The doctrine of procedural
default is applicable when a petitioner fails to comply with a state procedural rule,
the rule is actually relied upon by the state courts, and the procedural rule is
“adequate and independent.” White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006);
see also Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005); Coleman v.
Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). “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 a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263-64
(1989). The last explained state court judgment should be used to make this
determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state
judgment is a silent or unexplained denial, it is presumed that the last reviewing
court relied upon the last reasoned opinion. Id.
Here, the Michigan Court of Appeals rendered the last reasoned opinion. In
denying relief on this claim, the court relied upon a state procedural bar-- that is,
Petitioner’s failure to preserve the issue in the trial court. Irvin, 2013 WL 6124275
at *3. The failure to make a contemporaneous objection is a recognized and
firmly-established independent and adequate state law ground for refusing to
review trial errors. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130
(1999); People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994); see also
Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Moreover, a state court does
not waive a procedural default by looking beyond the default to determine if there
are circumstances warranting review on the merits. Paprocki v. Foltz, 869 F.2d
281, 285 (6th Cir. 1989). Plain error review does not constitute a waiver of state
procedural default rules. Girts v. Yanai, 501 F.3d 743, 755 (6th Cir. 2007); Hinkle
v. Randle, 271 F.3d 239, 244 (6th Cir. 2001). Nor does a state court fail to
sufficiently rely upon a procedural default by ruling on the merits in the
alternative. McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). In this case,
the Michigan Court of Appeals denied relief based upon Petitioner’s failure to
preserve the issue.
A state prisoner who fails to comply with a state’s procedural rules waives
the right to federal habeas review absent a showing of cause for noncompliance
and actual prejudice resulting from the alleged constitutional violation, or a
showing of a fundamental miscarriage of justice. See Coleman, 501 U.S. at 753;
Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). To establish cause, a
petitioner must establish that some external impediment frustrated his ability to
comply with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488
(1986). A petitioner must present a substantial reason to excuse the default.
Amadeo v. Zant, 486 U.S. 214, 223 (1988). Such reasons include interference by
officials, attorney error rising to the level of ineffective assistance of counsel, or a
showing that the factual or legal basis for a claim was not reasonably available.
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).
Petitioner neither alleges nor establishes cause to excuse this procedural
default.2 A federal habeas court need not address the issue of prejudice when a
2
Petitioner mistakenly believes that the default concerns the presentation of the
issue to the state appellate courts and argues that appellate counsel was ineffective
as cause. Assuming that Petitioner would assert that trial counsel was ineffective
for failing to preserve the issue in the trial court, he cannot prevail because he has
not exhausted that claim of ineffective assistance of counsel in the state courts. It
is well-settled that a claim of ineffective assistance of counsel asserted as cause to
excuse a procedural default is an independent constitutional claim which requires
proper exhaustion in state court. See Edwards v. Carpenter, 529 U.S. 446, 453
(2000). Because Petitioner has not exhausted this claim of ineffective assistance of
trial counsel in the state courts, he cannot rely upon it to establish cause to excuse
petitioner fails to establish cause to excuse a procedural default. Smith v. Murray,
477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983).
Nonetheless, the Court finds that Petitioner cannot establish prejudice. Even
assuming that counsel was appointed just before the preliminary examination,3
Petitioner fails to show that he was prejudiced by the late appointment. He fails to
allege with any specificity what counsel would have discovered or done differently
to benefit his defense if he had been appointed in a more timely fashion.
Conclusory allegations are insufficient to warrant habeas relief. See, e.g., Cross v.
Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007); Workman v. Bell, 178 F.3d 759,
771 (6th Cir. 1998) (conclusory allegations of ineffective assistance of counsel do
not justify habeas relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th
Cir. 2006) (bald assertions and conclusory allegations do not provide a basis for
evidentiary hearing on habeas review). Furthermore, Petitioner was convicted of
his procedural default. See, e.g., Jacobs v. Mohr, 265 F.3d 407, 417-18 (6th Cir.
2001).
3
The Court notes that in reviewing this claim for plain error, the Michigan Court of
Appeals found that counsel was appointed on February 10, 2011 and that the
preliminary examination was rescheduled and conducted on March 10, 2011.
Irvin, 2013 WL 6124275 at *3. If true, Petitioner’s claim is belied by the record.
The state court docket sheet, however, is unclear on this point. It shows that the
preliminary examination on February 17, 2011 was cancelled at defense request
and was conducted on March 10, 2011. It also shows that a motion to assign
counsel was filed/signed on March 10, 2011. (Register of Actions, ECF No. 10-1.)
The Court need not resolve this issue in order to decide this case.
second-degree murder and felony firearm following a full jury trial well after
counsel was appointed. Any error arising from the late appointment of counsel at
the preliminary examination therefore was harmless. See, e.g., Coleman v.
Alabama, 399 U.S. 1, 11 (1970) (ruling that harmless error applies when a criminal
defendant is denied counsel at a preliminary hearing); Takacs v. Engle, 768 F.2d
122, 124 (6th Cir. 1985); Dodge v. Johnson, 471 F.2d 1249, 1252 (6th Cir. 1973)
(record failed to establish that lack of counsel at preliminary examination
prejudiced petitioner’s rights at trial or tainted finding of guilt). Petitioner fails to
establish that he was denied due process or otherwise prejudiced by the alleged late
appointment of counsel at the preliminary examination.
Petitioner also fails to show that a fundamental miscarriage of justice has
occurred. The miscarriage of justice exception requires a showing that a
constitutional violation probably resulted in the conviction of one who is actually
innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995). “‘[A]ctual innocence’
means factual innocence, not mere legal insufficiency.” Bousley v. United States,
523 U.S. 614, 624 (1998). “To be credible, [a claim of actual innocence] requires
petitioner to support his allegations of constitutional error with new reliable
evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence – that was not presented at trial.” Schlup,
513 U.S. at 324. Petitioner makes no such showing. This claim is thus barred by
procedural default, otherwise lacks merit, and does not warrant habeas relief.
V.
Conclusion
For the reasons stated, the Court concludes that Petitioner is not entitled to
federal habeas relief on the claims contained in his petition.
Before Petitioner may appeal the Court’s decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). When a
federal court denies relief on the merits, the substantial showing threshold is met if
the petitioner demonstrates that reasonable jurists would find the court’s
assessment of the constitutional claim debatable or wrong. 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). Petitioner makes no such showing. The Court, therefore, is denying
Petitioner a certificate of appealability. The Court also is denying Petitioner leave
to proceed in forma pauperis on appeal as an appeal cannot be taken in good faith.
See Fed. R. App. P. 24(a).
Accordingly,
IT IS ORDERED that Petitioner’s application for the writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DENIED;
IT IS FURTHER ORDERED that Petitioner is DENIED a certificate of
appealability and leave to appeal in forma pauperis.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: December 2, 2016
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 2, 2016, by electronic and/or
U.S. First Class mail.
s/ Richard Loury
Case Manager
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