Davis v. Woods

Filing 21

OPINION AND ORDER DENYING 1 Petition for Writ of Habeas Corpus, a Certificate of Appealability, and Leave to Appeal in forma pauperis. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFFREY LAKIETH DAVIS,
Petitioner,

Case No. 4:15-CV-13279
HONORABLE TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

v.
JEFFREY WOOD,
Respondent.
______________________________________/

OPINION AND ORDER DENYING (1) THE PETITION FOR WRIT OF
HABEAS CORPUS; (2) A CERTIFICATE OF APPEALABILITY; AND (3)
LEAVE TO APPEAL IN FORMA PAUPERIS
Jeffrey Lakieth Davis, (“petitioner”), confined at the Michigan Reformatory in
Ionia, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner challenges his conviction for first-degree criminal sexual conduct,
Mich. Comp. Laws § 750.520b(1)(a). For the reasons stated below, the application
for a writ of habeas corpus is DENIED WITH PREJUDICE.
I.

Background

Petitioner was charged with two counts of first-degree criminal sexual conduct
based on allegations he had sexually penetrated a child under the age of thirteen.
Petitioner pleaded guilty to one count of first-degree criminal sexual conduct, in
exchange for dismissal of the second count. The prosecutor placed the terms of the
agreement on the record:
MS. GLENN [the prosecutor]: The People agree to dismiss Count II, in
exchange for a guilty plea to Count I. We agree to a guidelines

sentence. This is a mandatory minimum of twenty-five years. There
are no other conditions or agreements in this matter.
THE COURT: Have you computed the guidelines yet?
MS. GLENN: Your Honor, I have them from Pretrial Services
preliminarily at 135 months, to 225 months. I did look over them, and
they appear to be correct.
THE COURT: There has to be a minimum of twenty-five years?
MS. GLENN: That's correct, Your Honor.
(Tr. 8/4/11, 2-3).
The judge then asked petitioner if he understood he was being charged with
first-degree criminal sexual conduct, that the charge carried a maximum life
sentence, and “[t]here is a mandatory minimum of twenty-five years, along with
electronic monitoring, and you’ll do that as well.” Petitioner replied, “Yes.” (Id., pp.
4-5). Petitioner affirmed that the prosecutor accurately stated the terms of the plea
agreement and that there were no other terms of the agreement that had not been
disclosed on the record. (Id., p. 4).
At sentencing, the following exchange took place:
MR. SIMMONS [defense counsel]: We’ve reviewed the probation
report. It’s factually correct, Your Honor. There isn’t much discretion
available in this matter.
THE COURT: There’s an agreement by the People for a guidelines
sentence.
MR. SIMMONS: Your
applicable in this case.

Honor, except

the

THE COURT: It’s a minimum twenty-five years.
MR. SIMMONS: That’s correct, Judge.
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guidelines

are

not

(Tr. 8/19/11, p. 2).
The trial court then sentenced petitioner to 30 to 50 years’ imprisonment. (Id., p. 4).
Petitioner’s first appellate counsel, Arthur Landau, filed a motion to
withdraw the plea, on the ground that the judge and the prosecutor agreed to a
minimum sentence of 25 years, which the judge exceeded when sentencing
petitioner to 30 to 50 years in prison. (Tr. 1/13/12, pp. 3-7). The judge ordered an
evidentiary hearing on the claim. (Id., pp. 8-11).
An evidentiary hearing was conducted on February 24, 2012. Petitioner
testified that he was told that the minimum sentence was going to be twenty-five
years in prison and was never advised that he could receive a minimum sentence
that was greater than that. Petitioner recalled the prosecutor stating at the plea
hearing that “we agree to a guidelines sentence, this is a mandatory minimum of
twenty-five years.” (Tr. 2/24/12, pp. 4-6). Petitioner claimed that his plea was
induced by representations that he would receive a twenty-five year minimum
sentence. Petitioner testified that if he had been told that the minimum sentence
was going to be greater than twenty-five years, he would not have pleaded guilty.
(Id., pp. 9-10).
Appellate counsel argued that petitioner should be permitted to withdraw his
plea, because it was induced by a promise that he would receive a twenty-five year
minimum sentence. (Id., pp. 27, 29-30). The judge denied the motion to withdraw
the plea. (Id., pp. 34-37).

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Petitioner’s appellate counsel filed an application for leave to appeal with the
Michigan Court of Appeals, which was denied. People v. Davis, Case No. 308922
(Mich.Ct.App. May 9, 2012).
Petitioner filed an application for leave to appeal to the Michigan Supreme
Court. In lieu of granting leave to appeal, the Michigan Supreme Court remanded
the matter to the Michigan Court of Appeals “for consideration on leave granted.”
People v. Davis, 493 Mich. 873, 821 N.W.2d 573 (2012).
On remand, a new attorney, Phillip D. Comorski, was appointed to represent
petitioner on appeal. Mr. Comorski filed an appeal brief, in which he argued that
the trial court erred in denying petitioner’s motion to withdraw the guilty plea
where petitioner had been lead to believe that his minimum sentence would be no
greater than twenty-five years and that trial counsel was ineffective for advising
petitioner that his sentence would be no greater than twenty-five years if he
pleaded guilty.
The Michigan Court of Appeals held that petitioner’s plea was involuntary
because he had been misled by the prosecutor and the trial judge that his minimum
sentence would not exceed twenty-five years. The Michigan Court of Appeals
remanded the matter to the trial court for petitioner to be re-sentenced to twentyfive to fiftyyears in accordance with the original plea agreement. People v. Davis,
Case No. 308922, 2014 WL 2536988 (Mich. Ct. App. June 5, 2014). Petitioner filed
an application for leave to appeal, which was denied. People v. Davis, 498 Mich. 864,
866 N.W.2d 415 (2015).
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On July 10, 2014, petitioner was re-sentenced by the trial court to twenty-five
to fifty years, in accordance with the original plea and sentencing agreement. (Tr.
7/10/14, pp. 2-3).
Petitioner appealed his re-sentencing but was denied relief. People v. Davis,
No. 325436 (Mich.Ct.App. Feb. 19, 2015); lv. den. 498 Mich. 867, 866 N.W. 2d 451
(2015).
In his original and amended petitions, petitioner seeks habeas relief on the
following grounds:
I. The court erred in denying the petitioner’s motion to withdraw his
guilty plea where the record reveals that he was sentenced to a thirty
year minimum term, notwithstanding the fact that, at the time of the
plea, Petitioner was informed that he was pleading guilty to a charge
that carried a twenty-five year mandatory minimum sentence, which
also included a prosecutorial “agreement” to a minimum sentence
within a sentencing guidelines range of 135-225 months.
II. The trial court erred in denying the petitioner’s motion to withdraw
his plea, after he was not given leniency, and it was placed on the
record that he would receive it, by the court and the prosecutor.
III. The petitioner was denied the effective assistance of counsel in
violation of the state and federal constitutional right to counsel, where
trial counsel erroneously advised him that he would be sentenced to a
to twenty-five year mandatory minimum sentence. Davis relied on this
misadvice in deciding to enter a plea of guilty.
IV. The petitioner suffered ineffective assistance of appellate counsel
for counsel’s failure to meet or consult with petitioner about filing
appeal and brief.
II.

Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for
habeas cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
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merits in State court proceedings unless the adjudication of the
claim–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if
the state court arrives at a conclusion opposite to that reached by the Supreme
Court on a question of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a
state court decision unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ
simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or
incorrectly.” Id. at 410-11. “[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)). 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.” Harrington, 562 U.S. at 103. A habeas petitioner should
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be denied relief as long as it is within the “realm of possibility” that fairminded
jurists could find the state court decision to be reasonable. See Woods v. Etherton,
136 S. Ct. 1149, 1152 (2016).
III.

Discussion

A. Claims 1, 2, and 3. The involuntary plea/ineffective assistance of
trial counsel claims.
Petitioner claims that his guilty plea was involuntary because it was induced
by false promises made by the judge and/or the prosecutor. Petitioner further
contends that his trial counsel was ineffective for advising him that the minimum
sentence would be twenty-five years, which induced petitioner to plead guilty.
Initially, the Court observes that petitioner has no federal constitutional
right to withdraw his guilty plea. See Hynes v. Birkett, 526 Fed. App’x. 515, 521
(6th Cir. 2013). Unless a petitioner’s guilty plea otherwise violated a clearlyestablished constitutional right, whether to allow the withdrawal of a habeas
petitioner’s guilty plea is discretionary with the state trial court. See Shanks v.
Wolfenbarger, 387 F. Supp. 2d 740, 748 (E.D. Mich. 2005).
A guilty plea entered in state court must be voluntarily and intelligently
made. See Shanks, 387 F. Supp. 2d at 749; Doyle v. Scutt, 347 F. Supp. 2d 474, 482
(E.D. Mich. 2004) (both citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)). In
order for a plea of guilty to be voluntarily and intelligently made, the defendant
must be aware of the “relevant circumstances and likely consequences” of his plea.
Hart v. Marion Correctional Institution, 927 F. 2d 256, 257 (6th Cir. 1991). The
defendant must also be aware of the maximum sentence that can be imposed for the
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crime for which he or she is pleading guilty. King v. Dutton, 17 F.3d 151, 154 (6th
Cir. 1994). When a petitioner brings a federal habeas petition challenging his plea
of guilty, the state generally satisfies its burden by producing a transcript of the
state court proceedings showing that the plea was made voluntarily. Garcia v.
Johnson, 991 F. 2d 324, 326 (6th Cir. 1993). The factual findings of a state court
that the guilty plea was properly made are generally accorded a presumption of
correctness. Petitioner must overcome a heavy burden if the federal court is to
overturn the state court’s findings. Id.
It is only when the consensual character of a guilty plea is called into
question that the validity of a guilty plea may be impaired. Mabry v. Johnson, 467
U.S. 504, 508-09 (1984). A plea of guilty entered by one fully aware of the direct
consequences, including the actual value of any commitments made to him by the
court, prosecutor, or his or her own counsel, must stand unless induced by threats
(or promises to discontinue improper harassment), misrepresentation (including
unfulfilled or unfulfillable promises), or perhaps by promises that are by their
nature improper, that is, promises that have no proper relationship to the
prosecutor’s business (i.e. bribes). Id.
Petitioner initially claims that his guilty plea was involuntary because the
judge originally sentenced him to thirty to fifty years in prison, breaching the
agreement that petitioner would be sentenced to no more than twenty-five years as
the minimum sentence.

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A prosecutor’s breach of the terms of a plea agreement does not retroactively
cause the defendant's guilty plea, when it was entered, to have been unknowing or
involuntary. In fact, it is precisely because a defendant’s guilty plea was knowing
and voluntary that the prosecutor is required to uphold its side of a plea bargain.
See Puckett v. U.S., 556 U.S. 129, 137-38 (2009). The appropriate remedy for the
government’s breach of a plea agreement is either specific performance of the
agreement or an opportunity to withdraw the plea. See Santobello v. New York, 404
U.S. 257, 263 (1971). However, the appropriate remedy for the breach of a plea
agreement lies within the trial court’s discretion. See Santobello, 404 U.S. at 263;
see also Peavy v. United States, 31 F.3d 1341, 1346 (6th Cir. 1994) (the choice
between the two remedies of specific performance or plea withdrawal is not up to
the defendant but rests instead with “the sound discretion” of the trial court.).
In the present case, the Michigan Court of Appeals agreed that petitioner had
been misled into believing that he would receive no more than twenty-five years as
the minimum sentence if he pleaded guilty, and ordered that petitioner be resentenced to twenty-five to fifty years. On remand, petitioner was re-sentenced to
twenty-five to fifty years in prison. Petitioner is unable to show that he was
prejudiced by the original breach because the trial judge re-sentenced him to
twenty-five to fifty- years in prison, thereby upholding the terms of the original plea
agreement. Under the circumstances, the breach of the plea agreement did not
prejudice petitioner, so as to allow him to withdraw his plea. See U.S. v. Keller, 665
F. 3d 711, 714-15 (6th Cir. 2011) (defendant’s substantial rights had not been
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affected by government’s plain error in arguing for sentence that exceeded range
previously determined according to terms of plea agreement, since court sentenced
defendant only to upper limit of agreed range, his sentence was lower than that
anticipated by plea agreement at time that he signed it, and his sentence did not
exceed upper limit of presentence report calculation which, when adopted by court,
became new agreed range).
In his related third claim, petitioner claims that his plea was involuntary
because his trial counsel misled him into believing that he would be sentenced to
twenty-five years in prison on the first-degree criminal sexual conduct charge, when
in fact, the judge initially sentenced him to thirty years on the minimum sentence.
However, Petitioner’s claim has been mooted by the fact that he was re-sentenced to
twenty-five to fifty years in prison.
Article III, § 2 of the United States Constitution requires the existence of a
case or controversy through all stages of federal judicial proceedings. This means
that, throughout the litigation, the petitioner “must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to be redressed by a
favorable judicial decision.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477
(1990). When the issuance of a writ of habeas corpus would have no effect on a
petitioner’s term of custody, and would impose no collateral legal consequences, the
habeas petitioner fails to present a justiciable case or controversy within the
meaning of Article III of the Constitution. See Ayers v. Doth, 58 F. Supp. 2d 1028,
1034 (D. Minn. 1999). “[M]ootness results when events occur during the pendency
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of a litigation which render the court unable to grant the requested relief.” Carras v.
Williams, 807 F. 2d 1286, 1289 (6th Cir. 1986).
The Michigan Court of Appeals ordered that petitioner be resentenced to
twenty-five to fiftyyears, and petitioner, in fact, has been resentenced accordingly;
petitioner’s ineffective assistance of counsel claim is thus now moot. See U.S. v.
Jones, 489 F. 3d 243, 255 (6th Cir. 2007).
Petitioner also appears to argue that his plea was involuntary because he
was led to believe by the prosecutor and/or the judge that his minimum sentence
would be within the sentencing guidelines range of 135-225 months.1 An unfulfilled
state promise obtained in return for a guilty plea will entitle a habeas petitioner to
habeas relief. Myers v. Straub, 159 F. Supp. 2d 621, 627 (E.D. Mich. 2001).
Moreover, any promises made by a judge in the course of a guilty plea colloquy
operate as a promise made by the state in exchange for a defendant’s waiver of
rights and guilty plea. See Spencer v. Superintendent, Great Meadow Correctional
Facility, 219 F. 3d 162, 168 (2nd Cir. 2000). However, a federal court sitting in
habeas review should not “lightly find misrepresentation in a plea agreement.”
Myers, 159 F. Supp. 2d at 627.
Absent extraordinary circumstances, or some other explanation as to why a
defendant did not reveal other terms when specifically asked to do so by the trial
court, a plea agreement consists of the terms revealed in open court, where the trial
Under Michigan law, only the minimum sentence must presumptively be set within the
appropriate sentencing guidelines range. See People v. Babcock, 469 Mich. 247, 255, n. 7; 666 N.W.
2d 231 (2003)(citing Mich. Comp. Laws § 769.34(2)). The maximum sentence is not determined by
the trial judge but is set by law. See People v. Claypool, 470 Mich. 715, 730, n. 14; 684 N.W. 2d 278
(2004)(citing Mich. Comp. Laws § 769.8).
1

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court scrupulously follows the required procedure for taking the defendant’s plea.
Baker v. United States, 781 F. 2d 85, 90 (6th Cir. 1986). Because a plea bargain is
contractual in nature, it would violate established contract law principles to permit
a defendant to attempt to prove that a plea agreement is otherwise than it
unambiguously appears on a thorough record. Id. Plea agreements are to be strictly
construed. See United States v. Brummett, 786 F. 2d 720, 723 (6th Cir. 1986). A
term of a plea agreement “that is unambiguous on its face and agreed to by the
defendant in open court will be enforced.” McAdoo v. Elo, 365 F. 3d 487, 497 (6th
Cir. 2004). Moreover, “[T]he United States Constitution does not require judges to
explain the meaning of ...unambiguous terms during the plea colloquy in order to
combat alleged misinformation that is not revealed on the record.” Id.
In the present case, the prosecutor indicated that she agreed to a sentence
within the sentencing guidelines range, but further noted that the first-degree
criminal sexual conduct charge carried a mandatory minimum twenty-five year
sentence. The judge clarified on the record that the first-degree criminal sexual
conduct charge that petitioner was pleading guilty to carried a mandatory minimum
twenty-five year sentence. Petitioner indicated on the record that he understood
that he was facing a mandatory minimum twenty-five year sentence and that no
other promises had been made to induce his plea. A “clear reading” of the plea
agreement shows that there was no promise by the prosecutor or the trial judge
that petitioner would receive a minimum sentence within a sentencing guidelines
range of 135-225 month. Petitioner has therefore failed to show that the original
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terms of the plea agreement were breached by the prosecutor or the trial judge.
Myers, 159 F. Supp. 2d at 628. Moreover, even if this condition of the plea
agreement was ambiguously worded, this would not entitle petitioner to habeas
relief. “No U.S. Supreme Court opinion has held that all conditions promised in a
plea bargain must be communicated to a defendant unambiguously.” Id. at 627
(citing Mask v. McGinnis, 252 F.3d 85 (2nd Cir. 2001)).
In light of the fact that petitioner was advised by the trial judge on the record
that he faced a mandatory minimum 25 year prison sentence, petitioner has failed
to show that he reasonably believed that he would receive a minimum sentence of
135-225 months by pleading guilty. McAdoo, 365 F. 3d at 497. Because the trial
court judge clearly indicated that petitioner faced a mandatory minimum twentyfive year prison sentence, petitioner is unable to show that the trial court breached
the sentencing agreement or that petitioner had any reasonable belief that he would
be sentenced to 135-225 months in prison. See Wright v. Lafler, 247 Fed. App’x. 701,
705-07 (6th Cir. 2007). Finally, although petitioner claims that he understood the
plea agreement to guarantee him a sentence within the guidelines range of 135-225
months, habeas relief should not be granted by crediting a petitioner’s subjective
version of his understanding of the plea bargain. See Nichols v. Perini, 818 F. 2d
554, 558-59 (6th Cir. 1987); see also Doughty v. Grayson, 397 F. Supp. 2d 867, 88182 (E.D. Mich. 2005). Accordingly, petitioner is not entitled to habeas relief on his
first, second, and third claims.

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B. Claim 4. The ineffective assistance of appellate counsel claim.
Petitioner contends that he was denied the effective assistance of appellate
counsel because neither of his appellate attorneys visited with him in prison or
otherwise consulted with him. 2
To show that he was denied the effective assistance of counsel under federal
constitutional standards, a defendant must satisfy a two prong test. First, the
defendant must demonstrate that, considering all of the circumstances, counsel’s
performance was so deficient that the attorney was not functioning as the “counsel”
guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687
(1984). In so doing, the defendant must overcome a strong presumption that
counsel’s behavior lies within the wide range of reasonable professional assistance.
Id. In other words, petitioner must overcome the presumption that, under the
circumstances, the challenged action might be sound trial strategy. Strickland, 466
U.S. at 689. Second, the defendant must show that such performance prejudiced his
defense. Id. To demonstrate prejudice, the defendant must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The Supreme
Respondent contends that petitioner’s fourth claim was never exhausted with the state courts. A
habeas petitioner’s failure to exhaust his or her state court remedies does not deprive a federal court
of its jurisdiction to consider the merits of the habeas petition. Granberry v. Greer, 481 U.S. 129, 131
(1987). An unexhausted claim may be addressed if the unexhausted claim is without merit, such
that addressing the claim would be efficient and would not offend the interest of federal-state comity.
Prather v. Rees, 822 F. 2d 1418, 1422 (6th Cir. 1987); see also 28 U.S.C. § 2254(b)(2)(habeas petition
may be denied on the merits despite the failure to exhaust state court remedies). In these
circumstances, a federal court should dismiss a non-federal or frivolous claim on the merits to save
the state courts the useless review of meritless constitutional claims. Cain v. Redman, 947 F. 2d 817,
820 (6th Cir. 1991). Because petitioner’s fourth claim lacks merit, in the interests of efficiency and
justice, the Court will address the claim, rather than dismiss the petition on exhaustion grounds. See
Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999).
2

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Court’s holding in Strickland places the burden on the defendant who raises a claim
of ineffective assistance of counsel, and not the state, to show a reasonable
probability that the result of the proceeding would have been different, but for
counsel’s allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27
(2009). The Strickland standard applies as well to claims of ineffective assistance of
appellate counsel. See Whiting v. Burt, 395 F. 3d 602, 617 (6th Cir. 2005).
Petitioner essentially contends that he was constructively denied the assistance
of counsel on appeal because his appellate counsel never visited him in prison to
discuss potential appealable issues with him nor called or wrote him more
frequently.
The Supreme Court has held that the “[a]ctual or constructive denial of the
assistance of counsel altogether is legally presumed to result in prejudice.”
Strickland, 466 U.S. at 692. However, in order for a presumption of prejudice to
arise based on an attorney’s failure to test the prosecutor’s case, so that reversal
based on ineffective assistance of counsel is warranted without any inquiry into
prejudice, the attorney’s failure to test the prosecutor’s case “must be complete.”
Bell v. Cone, 535 U.S. 685, 697 (2002). The presumption of prejudice extends to the
denial of counsel on appeal. Penson v. Ohio, 488 U.S. 75, 88 (1988). However, a case
in which a defendant is denied counsel on appeal “is unlike a case in which counsel
fails to press a particular argument on appeal...or fails to argue an issue as
effectively as he or she might.” Penson, 488 U.S. at 88 (internal citation omitted).
Thus, although the denial of counsel altogether on appeal warrants a presumption
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of prejudice, mere ineffective assistance of counsel on appeal does not. Smith v.
Robbins, 528 U.S. 259, 286 (2000).
In the present case, petitioner’s first appellate counsel filed a motion to
withdraw the plea in the trial court, preserving petitioner’s guilty plea claim.
Petitioner’s second appellate counsel was able to obtain relief from the Michigan
Court of Appeals – an order of remand ordering the trial judge to reduce the
sentence from thirty to fifty years to twenty-five to fifty years. Petitioner’s
appellate counsel thus obtained a five year sentence reduction for him. To the
extent that petitioner alleges that appellate counsel should have argued that the
sentencing judge breached an agreement to impose a sentence of 135 to 225 months
in prison, as stated above, there was no such agreement. Because the trial judge
did not breach the terms of any such plea agreement, appellate counsel was not
ineffective in failing to move for the withdrawal of petitioner’s guilty plea on this
basis. See United States v. Martin, 45 Fed. App’x. 378, 381-82 (6th Cir. 2002).
Appellate counsel did correspond with petitioner by mail. Even assuming that
appellate counsels’ failure to visit petitioner in prison to consult with him and get
his input on potential issues was somehow derelict, petitioner would still be
required to show prejudice from this deficiency to obtain relief. In the case cited by
petitioner, Franklin v. Anderson, 434 F.3d 412 (6th Cir. 2006), the Sixth Circuit
applied the Strickland standard regarding a petitioner’s claim that appellate
counsel had been ineffective for failing to visit the petitioner in prison to consult
with him about the issues for appeal, but did not presume prejudice based on the
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failure to visit. Id., 428-31. The Sixth Circuit has also applied the Strickland
standard in evaluating and rejecting an ineffective assistance of trial counsel claim
based upon counsel’s failure to consult with a habeas petitioner. See Bowling v.
Parker, 344 F. 3d 487, 506 (6th Cir. 2003) (trial attorneys’ alleged failure to consult
with defendant did not prejudice defendant in capital murder case, and thus could
not amount to ineffective assistance, although attorneys allegedly met with
defendant for less than one hour in preparing defense, where defendant failed to
show how additional consultation with his attorneys could have altered outcome of
trial).
Petitioner has failed to show that he was prejudiced by appellate counsels’
failure to visit, thus, he is not entitled to relief on his fourth claim.
C. The motions for an evidentiary hearing and for the appointment
of counsel.
Petitioner moved for an evidentiary hearing and for the appointment of
counsel.
A habeas petitioner is not entitled to an evidentiary hearing on his or her
claims if they lack merit. See Stanford v. Parker, 266 F. 3d 442, 459-60 (6th Cir.
2001). A habeas petitioner’s request for the appointment of counsel should also be
denied if the petition is without merit. See Lemeshko v. Wrona, 325 F. Supp, 2d 778,
787 (E.D. Mich. 2004). Petitioner’s claims are without merit; the motion for an
evidentiary hearing and for the appointment of counsel is denied.

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IV. Conclusion
For the reasons set forth above, the Court DENIES the petition for writ of
habeas corpus. The Court will also DENY a certificate of appealability to
petitioner. In order to obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
To demonstrate this, the applicant is required to show that reasonable jurists could
debate whether, or agree that, the petition should have been resolved in a different
manner, or that the issues presented were adequate to deserve encouragement to
proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district
court rejects a habeas petitioner’s constitutional claims on the merits, the petitioner
must demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims to be debatable or wrong. Id. at 484. “The district court
must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254;
See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
For the reasons stated in this opinion, the Court will deny petitioner a
certificate of appealability because he has failed to make a substantial showing of
the denial of a federal constitutional right. See Dell v. Straub, 159 F. Supp. 2d 629,
659 (E.D. Mich. 2002). The Court will also DENY petitioner leave to appeal in
forma pauperis, because the appeal would be frivolous. Id.

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V. ORDER
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of
Habeas Corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that the motion for an evidentiary hearing
and for the appointment of counsel (Dkt. 17) is DENIED.
IT IS FURTHER ORDERED That a Certificate of Appealability is
DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to
appeal in forma pauperis.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: October 31, 2016

Certificate of Service
I hereby certify that this Order was electronically submitted on October 31,
2016, using the CM/ECF system, which will send notification to each party, and
sent to unrepresented parties via postal mail.
s/A. Chubb
Case Manager

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