Charleston v. Woods
OPINION AND ORDER DENYING 1 the 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
KEITH ROMOND CHARLESTON,
Case No. 4:16-12696
HONORABLE TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
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
Keith Charleston, (“petitioner”), confined at the Chippewa Correctional
Facility in Kincheloe, Michigan, seeks the issuance of a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his
conviction for first-degree premeditated murder, Mich. Comp. Laws § 750.316(1)(a),
felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a
firearm in the commission of a felony, Mich. Comp. Laws § 750.227b. For the
reasons stated below, the application for a writ of habeas corpus is DENIED WITH
I. FACTUAL BACKGROUND
Petitioner was convicted following a jury trial in the Wayne County Circuit
Court. This Court recites verbatim the relevant facts regarding petitioner’s
conviction from the Michigan Court of Appeals’ opinion affirming his conviction,
which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1).
See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case arises from the murder of Charles Wall in Detroit, Michigan.
We conclude sufficient evidence of premeditation and deliberation
justified submitting the charge of first-degree premeditated murder to
the jury and for the jury to convict defendant. Lawrence Helzer and
defendant had a previous relationship: defendant regularly sold cocaine
to Helzer. On the day of the shooting death, defendant and another man
confronted Helzer regarding money Helzer allegedly owed defendant.
Defendant and his companion assaulted Helzer, knocking him to the
ground. Wall came out of the apartment and pulled defendant off
Helzer; defendant and his companion began to hit Wall. Helzer retrieved
a sword from his apartment, and he and Wall chased defendant and the
man with him. Wall and Helzer then went back into their apartment
building. Defendant later called Helzer and told him that if he did not
come outside, he would never be able to go back inside again.
Subsequently, Helzer looked out a window and saw defendant riding a
bicycle. Defendant was holding what looked like a pistol. Helzer could
not see defendant at the moment he heard the first of five gunshots.
After the shooting, Helzer looked through the door of the apartment
building and saw Wall lying on the ground outside. Helzer testified
defendant was no longer present when he found Wall’s body.
Karla Nash, who witnessed the shooting, testified the man who did it
ran away. Nash saw two men standing outside but did not see anything
in either man’s hands. She testified that the man who fell to the ground
had his hands to his side during the encounter.
According to defendant’s statement to the police, defendant retrieved a
gun from underneath logs. Defendant went back to the apartment and
talked to Helzer on the telephone. Wall came out of the apartment
building and started to walk toward defendant. Wall reached “in his
back area,” which made defendant think that Wall had something in his
possession. Defendant shot Wall three or four times because he was
People v. Charleston, No. 316771, 2015 WL 1119720, at * 1, 5 (Mich. Ct. App. Mar.
Petitioner’s conviction was affirmed. Id., lv. Den. 498 Mich. 884, 869 N.W.2d
587 (2015). Petitioner seeks a writ of habeas corpus on the following grounds:
I. Petitioner’s statement was unconstitutionally obtained as his intoxication
and lack of sleep prevented a knowing and intelligent waiver of his Miranda
rights, and the trial court erred in declining to suppress his statement.
II. Petitioner’s conviction for premeditated murder must be reversed where (1)
there was insufficient evidence of premeditation and deliberation; (2) the
prosecution failed to present sufficient evidence to disprove self-defense beyond
a reasonable doubt.
III. Petitioner’s guaranteed federal and state constitutional rights were
violated under the United States Constitution 6th and 14th Amendments; the
Michigan Constitution of 1963, Article 1 § 17 and 20, when trial counsel was
ineffective for (1) failing to do an adequate and thorough investigation; (2)
failing to address the illegal warrantless entry into his mother’s home to arrest
petitioner on outstanding traffic tickets; and (3) failing to challenge the
unreasonable delay in providing probable cause hearing where petitioner was
arrested without a warrant on December 26, 2012, and wasn’t arraigned until
December 29, 2012.
II. LEGAL STANDARD
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
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim-(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
A decision of a state court is “contrary to” clearly established federal law if
the 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.” Id.
A. The confession claim
Petitioner contends that the trial judge erred in denying his motion to
suppress because he did not voluntarily speak with the police nor did he knowingly,
intelligently, or voluntarily waive his Miranda rights. Petitioner claims that he did
not knowingly, intelligently or voluntarily waive his Miranda rights and that his
confession was involuntary because he was intoxicated on alcohol and marijuana
and was sleep-deprived at the time he made his statement.
The Court notes that the Michigan Court of Appeals reviewed and rejected the
portion of petitioner’s claim that he did not knowingly and intelligently waive his
Miranda rights for plain error because petitioner failed to preserve this issue in the
trial court in that petitioner only argued in his motion to suppress that his statement
was involuntary. People v. Charleston, 2015 WL 1119720, at * 1.
In Fleming v. Metrish, 556 F.3d 520, 532 (6th Cir. 2009), a panel of the Sixth
Circuit held that the AEDPA deference applies to any underlying plain-error
analysis of a procedurally defaulted claim. In a subsequent decision, the Sixth
Circuit held that that plain-error review is not equivalent to adjudication on the
merits, so as to trigger AEDPA deference. See Frazier v. Jenkins, 770 F. 3d 485, 496
n. 5 (6th Cir. 2014). The Sixth Circuit noted that “the approaches of Fleming and
Frazier are in direct conflict.” Trimble v. Bobby, 804 F.3d 767, 777 (6th Cir. 2015).
When confronted by conflicting holdings of the Sixth Circuit, this Court must follow
the earlier panel’s holding until it is overruled by the United States Supreme Court
or by the Sixth Circuit sitting en banc. See Darrah v. City of Oak Park, 255 F.3d
301, 310 (6th Cir. 2001). This Court believes that the AEDPA’s deferential
standard of review applies to the Miranda waiver portion of petitioner’s claim even
though this portion of the claim was reviewed only for plain error.1
Respondent argues that this Court should reject petitioner’s Miranda claim because petitioner
failed to preserve the claim at the trial level and the Michigan Court of Appeals relied on this failure
The Michigan Court of Appeals rejected petitioner’s claim:
A Walker2 hearing was held on defendant’s motion to suppress on February 22,
2013. Detroit Police Officer Derrick Maye testified that he interviewed
defendant on December 26, 2012, at approximately 8:00 p.m. Defendant was
not deprived of any food or water, and defendant had a carton of juice with him
during the interview. Officer Maye explained that the Second Precinct where
the interview occurred had scheduled feeding times. The scheduled feeding
time on that day was 6:00 p.m. Defendant did not tell Officer Maye that he
was hungry during the interview. Defendant was 29 years old at the time of
the interview and had completed the ninth grade. Officer Maye provided
defendant with a notice of constitutional rights form, read the form aloud to
defendant, and gave defendant the opportunity to read it himself. Defendant
did not slur his speech. Defendant did not appear to be drunk or tired. His
eyes were not bloodshot. Defendant also did not appear confused or
disoriented. Defendant was coherent and was able to understand the
conversation. During the interview, defendant told Officer Maye that he was
living in Atlanta at the time of the incident. Defendant eventually stated that
he lived on the street where the incident occurred.
Defendant also testified at the hearing. According to defendant, he was
intoxicated at the time of the incident. Defendant explained that he had
consumed six or seven daiquiris, which contain vodka, before the interview. He
began drinking at approximately 12:30 a.m. or 1:00 a.m. on December 26, 2012.
Defendant also smoked four or five blunts of “Cush,” which he explained is
strong marijuana; however, defendant explained that he smoked one blunt and
had two daiquiris during the daytime on December 26, 2012. Defendant
smoked the other blunts and drank the other daiquiris during the early
morning hours of December 26, 2012. Defendant went to sleep on December
26, 2012, at 2:00 a.m. and woke up at approximately noon. Defendant did not
remember the police interview at the time of the motion hearing or Officer
Maye’s asking him, “[D]o you know who this is?” Defendant also explained
that on the day of his arrest, the police came to the house. His girlfriend Lida
Love, defendant’s niece, and defendant’s nephew were in the house. Defendant
was trying to find something in the closet when he was arrested. Defendant
asked the police officers why they came to the house. The police officers told
to preserve the Miranda claim. As the Michigan Court of Appeals acknowledged even as they
defaulted petitioner’s Miranda claim, the analysis for determining whether a defendant voluntarily
confessed to a crime is similar to an inquiry concerning whether a defendant knowingly,
intelligently, and voluntarily waived his or her Miranda rights. Because the Court is required to
consider the same factors to determine whether petitioner voluntarily confessed and whether he
voluntarily waived his Miranda rights, it is easier for this Court to address the merits of both
portions of petitioner’s first claim.
2 People v. Walker, 374 Mich. 331; 132 NW2d 87 (1965) (footnote original).
defendant that they had a warrant based on defendant’s outstanding traffic
Defendant’s mother, Linda Moore, also testified at the hearing. Moore
explained that on December 26, 2012, police officers entered her home without
her invitation. She also testified that the officers did not show her an arrest
warrant. But Moore also explained that she was not at home at the time of
defendant’s arrest because she was at work. Defendant was awake when
Moore left for work, and defendant had been drinking vodka, gin, and beer the
entire day of his arrest. Defendant also smoked approximately two marijuana
cigarettes. Moore explained that defendant was intoxicated at the time of his
arrest, and she knew this even though she left for work at 8:00 a.m.
The trial court ruled that there was no indication that defendant was
intoxicated during the interview with Officer Maye and based its decision on
its observations from watching the first 20 minutes of the videotaped recording
of defendant’s interview by Officer Maye. The trial court noted that it had
considered defendant’s answers to Officer Maye’s questions, as well as how
defendant gave his answers. The court observed that defendant read and
initialed the Miranda waiver form. The trial court also noted that defendant
appeared to remember certain details of the interrogation while forgetting
others. The court also reasoned that defendant had ingested most of the
alcohol on the day before he was arrested. The court pointed out that
defendant’s statement to the police was cogent and that defendant slept
several hours on the day of the interview. Finally, the court noted that Moore
was not with defendant most of the day and could not have observed whether
defendant consumed alcohol. Thus, the court ruled that defendant’s statement
was voluntary and denied defendant’s motion to suppress.
Defendant’s waiver of his Miranda rights was knowing and intelligent.
According to Officer Maye, defendant did not appear to be drunk or tired at the
time of the interrogation. Defendant did not slur his speech. His eyes were
not bloodshot. Defendant also did not appear confused or disoriented, and he
was coherent and was able to understand the conversation. Officer Maye was
able to reason with defendant. Although defendant consumed alcohol and
marijuana before the interview, defendant consumed most of the marijuana
and alcohol in the early morning hours of the day of the interview. Officer Maye
read a constitutional rights form to defendant and gave defendant the
opportunity to read it himself. Although Moore testified that defendant was
intoxicated, she had not been home for the majority of the day of defendant’s
arrest. Defendant stated at the hearing that he could not remember the
interview, but he later stated that he remembered certain details of the
interview. From these facts we conclude as did the trial court that defendant
knowingly and intelligently waived his rights.
In addition, although defendant does not raise the issue of whether he
voluntarily confessed to shooting Wall and also does not discuss in his brief on
appeal whether his waiver of his Miranda rights was voluntary, we hold that
defendant’s waiver of his Miranda rights and his statement to the police were
voluntary based on the totality of the circumstances. At the time of the
interview, defendant was 29 years old and had completed the ninth grade.
Defendant was not deprived of any food or water during the interview.
Defendant had a juice carton in his possession at the time of the interview. The
scheduled feeding time on that day would have been 6:00 p.m., and defendant
was interviewed around 8:00 p.m. Defendant slept for at least eight hours the
night before he was interviewed. As discussed above, although defendant
testified at the hearing that he had consumed alcohol and marijuana on the
day of his police interview, there is no indication that he was intoxicated when
he waived his Miranda rights and provided a statement to the police. There is
no indication that there was a prolonged delay between defendant’s arrest and
the interview or that the interview was unreasonably long. Thus, the totality
of the circumstances surrounding defendant’s interview shows that defendant
voluntarily waived his Miranda rights and gave the statement to the police.
People v. Charleston, 2015 WL 1119720, at * 2–3 (internal citations omitted).
In considering federal habeas petitions, a federal district court must presume
the correctness of state court factual determinations, and a habeas petitioner may
rebut this presumption only with clear and convincing evidence. Bailey v. Mitchell,
271 F. 3d 652, 656 (6th Cir. 2001); 28 U.S.C. § 2254(e)(1). Subsidiary factual
questions in determining the voluntariness of a statement to police, such as
whether the police engaged in intimidation tactics alleged by a habeas petitioner,
are entitled to the presumption of correctness accorded to state court findings of
fact. Miller v. Fenton, 474 U.S. 104, 112 (1985). Likewise, whether a defendant
understood his or her Miranda rights is a question of fact underlying the question of
whether his waiver of those rights was knowing and intelligent. Thus, on federal
habeas review, a federal court has to presume that the state court’s factual finding
that a defendant fully understood what was being said and asked of him was correct
unless the petitioner shows otherwise by clear and convincing evidence. Williams v.
Jones, 117 F. App’x. 406, 412 (6th Cir. 2004); See also Terry v. Bock, 208 F. Supp. 2d
780, 789 (E.D. Mich. 2002).
A defendant’s waiver of his Miranda rights is considered valid if it is
voluntary, knowing, and intelligent. Miranda v. Arizona, 384 U.S. 436, 444, 475
(1966). Coercive police activity is a necessary predicate to finding that a
defendant’s waiver of his Miranda rights was involuntary. Colorado v. Connelly,
479 U.S. 157, 167, 169-70 (1986). A defendant’s deficient mental condition, by itself,
is insufficient to render a waiver involuntary. Id. at 164-65. “[W]hile mental
condition is surely relevant to an individual’s susceptibility to police coercion, mere
examination of the confessant’s state of mind can never conclude the due process
inquiry.” Connelly, 479 U.S. at 165.
Likewise, in determining whether a confession is voluntary, the ultimate
question for a court is “whether, under the totality of the circumstances, the
challenged confession was obtained in a manner compatible with the requirements
of the Constitution.” Miller v. Fenton, 474 U.S. at 112. These circumstances
police coercion (a “crucial element”);
the length of interrogation;
the location of interrogation;
the continuity of the interrogation;
the suspect’s maturity;
the suspect's education;
the suspect's physical condition and mental health; and
whether the suspect was advised of his or her Miranda Rights.
Withrow v. Williams, 507 U.S. 680, 693-94 (1993).
All of the factors involved in the giving of the statement should be closely
scrutinized. Culombe v. Connecticut, 367 U.S. 568, 602 (1961). However, without
coercive police activity, a confession should not be deemed involuntary. Colorado v.
Connelly, 479 U.S. at 167.
Petitioner’s primary contention is that he did not knowingly or intelligently
waive his Fifth Amendment rights or voluntarily speak with the police because he
was intoxicated. Petitioner testified at the Walker hearing that he was intoxicated
at the time of his arrest and at the time of his subsequent interrogation. However,
Officer Maye testified that petitioner did not appear to be intoxicated or fatigued;
did not slur his speech nor were his eyes bloodshot; did not look confused or
disoriented. On the contrary, Officer Maye testified that Petitioner was coherent
and able to understand the conversation. The trial court judge made a factual
finding, both from the testimony and from watching, listening, and observing 20
minutes of Petitioner’s demeanor and responses during the first portion of the
videotaped interrogation, that there was no evidence that petitioner was intoxicated
at the time he waived his Miranda rights and agreed to speak with Officer Maye.
In this case, the denial of petitioner’s motion to suppress his confession on the
ground that it was involuntary due to petitioner’s alleged intoxication does not
warrant federal habeas relief where the trial court, as trier of fact, was required to
decide between two differing accounts of what transpired and found from the
testimony of Officer Maye and the videotaped recording of the interview that there
was no evidence that petitioner was intoxicated when he made his statement to the
police. See DePew v. Anderson, 311 F. 3d 742, 753 (6th Cir. 2002). More
importantly, petitioner does not allege, nor does he show, that the police engaged in
any coercive activity. Because there is no evidence that petitioner was still
intoxicated at the time that he spoke with the police, combined with the absence of
any evidence of police coercion, petitioner cannot show that his confession should
have been suppressed merely because he claimed to be intoxicated. See Abela v.
Martin, 380 F. 3d 915, 928 (6th Cir. 2004).
Petitioner further contends that his confession should have been suppressed
because he was sleep-deprived. Officer Maye testified that petitioner did not appear
tired when he spoke to petitioner. Petitioner appeared to be lucid and coherent
during the interview. Petitioner himself admitted that he slept eight hours the
night before the police interrogation. The judge concluded after reviewing the
videotape of the interview that petitioner appeared lucid. Although petitioner
claimed to be sleep-deprived, in light of the fact that petitioner appeared lucid and
coherent during the police interrogation, the judge’s determination that petitioner’s
waiver of his Miranda rights was knowingly, intelligently, and voluntarily made
was a reasonable determination that defeats petitioner’s claim. See United States v.
Hampton, 572 F. App’x. 430, 434-435 (6th Cir. 2014).
Based upon the totality of the circumstances in this case, it was objectively
reasonable for the Michigan Court of Appeals to hold that petitioner’s statement to
the police was voluntary. See McCalvin v. Yukins, 444 F. 3d 713, 720 (6th Cir.
2006). Petitioner was advised of his Miranda rights. Petitioner was 29 years old
and had completed the ninth grade. Petitioner was not denied food or water during
the interview and had a juice carton in his possession at the time of the interview.
Petitioner slept for at least eight hours the night before the police interview. There
was no prolonged delay between petitioner’s arrest and the interrogation or
evidence that the interview took place over a long period of time. The judge made a
factual determination that petitioner was not intoxicated or tired at the time of the
interrogation. Under the deference required by the AEDPA, and given the factors
supporting a finding that petitioner’s confession was voluntary, the decision of the
Michigan Court of Appeals in finding petitioner’s confession to have been voluntary
was a reasonable application of federal law. McCalvin, 444 F. 3d at 720. Petitioner
is not entitled to relief on his first claim.
B. The sufficiency of evidence claim
Petitioner next contends that there was insufficient evidence to convict him of
first-degree murder because the prosecutor failed to prove the requisite elements of
premeditation and deliberation and failed to disprove petitioner’s self-defense claim.
It is beyond question that “the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.” In Re Winship, 397
U.S. 358, 364 (1970). But the critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction is, “whether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 318 (1979). This inquiry, however, does not require a court
to “ask itself whether it believes that the evidence at the trial established guilt
beyond a reasonable doubt.” Instead, the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Id. at 318-19 (internal citation and footnote omitted) (emphasis in
More importantly, a federal habeas court may not overturn a state court
decision that rejects a sufficiency of the evidence claim simply because the federal
court disagrees with the state court’s resolution of that claim. Instead, a federal
court may grant habeas relief only if the state court decision was an objectively
unreasonable application of the Jackson standard. See Cavazos v. Smith, 565 U.S.
1, 2 (2011). “Because rational people can sometimes disagree, the inevitable
consequence of this settled law is that judges will sometimes encounter convictions
that they believe to be mistaken, but that they must nonetheless uphold.” Id.
Indeed, for a federal habeas court reviewing a state court conviction, “the only
question under Jackson is whether that finding was so insupportable as to fall
below the threshold of bare rationality.” Coleman v. Johnson, 132 S. Ct. 2060, 2065
Finally, on habeas review, a federal court does not reweigh the evidence or
redetermine the credibility of the witnesses whose demeanor was observed at trial.
Marshall v. Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder
to weigh the probative value of the evidence and resolve any conflicts in testimony.
Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992). A habeas court therefore must
defer to the fact finder for its assessment of the credibility of witnesses. Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). The Court does not apply the
reasonable doubt standard when determining the sufficiency of evidence on habeas
review. Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995).
To constitute first-degree murder in Michigan, the state must establish that a
defendant’s intentional killing of another was deliberated and premeditated. See
Scott v. Elo, 302 F.3d 598, 602 (6th Cir. 2002) (citing People v. Schollaert, 194 Mich.
App. 158; 486 N.W.2d 312, 318 (1992)). The elements of premeditation and
deliberation may be inferred from the circumstances surrounding the killing. See
Johnson v. Hofbauer, 159 F. Supp. 2d 582, 596 (E.D. Mich. 2001) (citing People v.
Anderson, 209 Mich. App. 527, 537; 531 N. W. 2d 780 (1995)). Premeditation may
be established through evidence of the following factors:
the prior relationship of the parties;
the defendant’s actions before the killing;
the circumstances of the killing itself;
the defendant’s conduct after the homicide.
Cyars v. Hofbauer, 383 F.3d 485, 491 (6th Cir. 2004); Anderson, 209 Mich.
App. at 527.
Although the minimum time required under Michigan law to premeditate “is
incapable of exact determination, the interval between initial thought and ultimate
action should be long enough to afford a reasonable man time to subject the nature
of his response to a ‘second look.’” See Williams v. Jones, 231 F. Supp. 2d 586, 59414
95 (E.D. Mich. 2002) (quoting People v. Vail, 393 Mich. 460, 469; 227 N.W. 2d 535
(1975)). “A few seconds between the antagonistic action between the defendant and
the victim and the defendant’s decision to murder the victim may be sufficient to
create a jury question on the issue of premeditation.” Alder v. Burt, 240 F. Supp. 2d
651, 663 (E.D. Mich. 2003). “[A]n opportunity for a ‘second look’ may occur in a
matter of seconds, minutes, or hours, depending upon the totality of the
circumstances surrounding the killing.” Johnson, 159 F. Supp. 2d at 596 (quoting
People v. Berthiaume, 59 Mich. App. 451, 456 (1975)). Premeditation and
deliberation may be inferred from the type of weapon used and the location of the
wounds inflicted. See People v. Berry, 198 Mich. App. 123, 128; 497 N. W. 2d 202
(1993). Use of a lethal weapon will support an inference of an intent to kill.
Johnson, 159 F. Supp. 2d at 596 (citing People v. Turner, 62 Mich. App. 467, 470;
233 N.W. 2d 617 (1975)).
In the present case, there was sufficient evidence for a rational trier of fact to
conclude that petitioner acted with premeditation and deliberation when he shot
the victim. The evidence established that petitioner had been engaged in an
argument and a physical altercation with the victim and the victim’s friend prior to
the shooting. Evidence that petitioner had a prior dispute with the victim or his
friend supports a reasonable inference that the subsequent shooting was
premeditated. Scott, 302 F.3d at 603. Petitioner’s act of leaving the crime scene,
retrieving a firearm and returning to the scene to shoot the victim also supports a
finding of premeditation. See People v. Taylor, 133 Mich. App. 762, 764–65; 350
N.W.2d 318 (1984). There was also testimony that petitioner fired multiple
gunshots, which would also be sufficient to establish premeditation and
deliberation. See Thomas v. McKee, 571 F. App’x. 403, 407 (6th Cir. 2014). The fact
that petitioner fled the scene afterwards also supports a finding of premeditation.
See e.g. Marsack v. Howes, 300 F. Supp. 2d 483, 492 (E.D. Mich. 2004). Finally,
pursuant to the doctrine of transferred intent, petitioner could be liable for the
victim’s death, even if he intended to kill Mr. Helzer but killed the victim instead.
See People v. Youngblood, 165 Mich. App. 381, 388; 418 N.W. 2d 472 (1988).
Petitioner further claims that the prosecutor failed to disprove petitioner’s
Petitioner’s claim is non-cognizable on habeas review. Under Michigan law,
self-defense is an affirmative defense. See People v. Dupree, 486 Mich. 693, 704, 712;
788 N.W. 2d 399 (2010). “An affirmative defense, like self-defense, ‘admits the
crime but seeks to excuse or justify its commission. It does not negate specific
elements of the crime.’” People v. Reese, 491 Mich. 127, 155, n. 76; 815 N.W.2d 85
(2012) (quoting Dupree, 486 Mich. at 704, n. 11). Although under Michigan law the
prosecutor is required to disprove a claim of self-defense, See People v. Watts, 61
Mich. App. 309, 311; 232 N.W.2d 396, 398 (1975), “[p]roof of the nonexistence of all
affirmative defenses has never been constitutionally required....” See Smith v.
United States, 133 S. Ct. 714, 719 (2013) (quoting Patterson v. New York, 432 U.S.
197, 210 (1977)). The Supreme Court and the Court of Appeals for the Sixth Circuit
have rejected the argument that the Constitution requires the prosecution to
disprove self-defense beyond a reasonable doubt. See Gilmore v. Taylor, 508 U.S.
333, 359 (1993) (Blackmun, J., dissenting) (“In those States in which self-defense is
an affirmative defense to murder, the Constitution does not require that the
prosecution disprove self-defense beyond a reasonable doubt”); Martin v. Ohio, 480
U.S. 228, 233-36 (1987); see also Allen v. Redman, 858 F.2d 1194, 1197 (6th Cir.
1988) (explaining that habeas review of sufficiency-of-the-evidence claims is limited
to elements of the crimes as defined by state law and citing Engle v. Isaac, 456 U.S.
107 (1982), and Duffy v. Foltz, 804 F.2d 50 (6th Cir. 1986)). Therefore, “the due
process ‘sufficient evidence’ guarantee does not implicate affirmative defenses,
because proof supportive of an affirmative defense cannot detract from proof beyond
a reasonable doubt that the accused had committed the requisite elements of the
crime.” Caldwell v. Russell, 181 F.3d 731, 740 (6th Cir. 1999). As such, petitioner’s
claim that the prosecutor failed to disprove his affirmative defense is non-cognizable
on habeas review. Id.; Allen v. Redman, 858 F.2d at 1200.
Moreover, even if this Court were to determine that petitioner’s claim was
cognizable, he would not be entitled to habeas relief. Under Michigan law, one acts
lawfully in self-defense if he or she honestly and reasonably believes that he or she
is in danger of serious bodily harm or death, as judged by the circumstances as they
appeared to the defendant at the time of the act. Blanton v. Elo, 186 F.3d 712, 713,
n.1 (6th Cir. 1999) (citing People v. Heflin, 434 Mich. 482; 456 N.W. 2d 10 (1990)).
To be lawful self-defense, the evidence must show that: (1) the defendant honestly
and reasonably believed that he or she was in danger; (2) the danger feared was
death or serious bodily harm or imminent forcible sexual penetration; (3) the action
taken appeared at the time to be immediately necessary; and (4) the defendant was
not the initial aggressor. See Johnigan v. Elo, 207 F. Supp. 2d 599, 608-09 (E.D.
Mich. 2002) (citing People v. Barker, 437 Mich. 161, 165; 468 N.W. 2d 492 (1991);
People v. Kemp, 202 Mich. App. 318, 322; 508 N.W.2d 184 (1993); People v. Deason,
148 Mich. App. 27, 31; 384 N.W.2d 72 (1985)). Under Michigan law, a defendant is
not entitled to use any more force than is necessary to defend himself. Johnigan,
207 F. Supp. 2d at 609 (citing Kemp, 202 Mich. App. at 322). “[T]he law of selfdefense is based on necessity, and a killing or use of potentially lethal force will be
condoned only when the killing or use of potentially lethal force was the only escape
from death, serious bodily harm, or imminent forcible sexual penetration under the
circumstances.” Johnigan, 207 F. Supp. 2d at 609 (internal citation omitted).
In the present case, although there was evidence presented in support of
petitioner’s claim of self-defense, the prosecution also presented evidence from
which a rational trier of fact could have concluded beyond a reasonable doubt that
the prosecutor had rebutted petitioner’s self-defense claim.
When viewed in a light most favorable to the prosecution, the evidence
showed that petitioner lacked any honest and reasonable belief that his life was in
imminent danger or that he was in danger of great bodily harm. Further, the
evidence showed that petitioner was the initial aggressor. It was petitioner who
instigated the chain of events when he and his associate initially confronted Mr.
Helzer over money owed to petitioner and began beating Mr. Helzer. When the
victim came to Mr. Helzer’s aid, petitioner and his associate began beating him also.
Although the victim may have chased after petitioner with a sword, when petitioner
fled the crime scene, he was no longer in danger. Petitioner chose to retrieve a
firearm and return to the crime scene to confront Mr. Helzer and the victim a
second time. Petitioner was clearly the aggressor. Petitioner also used excessive
force by firing several shots at the victim. There was no weapon recovered from the
victim or the crime scene. Sufficient evidence was thus presented for a reasonable
trier of fact to find beyond a reasonable doubt that petitioner committed all of the
elements of first-degree murder and that his killing of the victim was not justified
by a claim of self-defense. See Friday v. Pitcher, 200 F.Supp.2d 725, 743 (E.D. Mich.
Although there was evidence to support petitioner’s self-defense claim and
petitioner has given interpretations to the evidence that differ from the state court’s
interpretation of the evidence, “in light of the deference to be accorded to state-court
fact-finding under § 2254(e), as well as the traditional deference accorded to the
jury’s resolution of disputed factual issues,” petitioner is unable to show that the
Michigan Court of Appeals unreasonably determined that the prosecutor disproved
petitioner’s self-defense claim. See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir.
C. The ineffective assistance of trial counsel claim
Petitioner claims that he was denied the effective assistance of trial counsel.
To show that he or she 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
or her 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 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).
Petitioner’s ineffective assistance of counsel claim in relation
to evidence surrounding his intoxication level and drug use
Petitioner first claims that his trial counsel was ineffective for failing to
investigate and present two witnesses, his mother Linda Moore, and his girlfriend,
Atairalita Love, to testify to petitioner’s intoxication and drug use on the day of the
shooting, August 1, 2012. Petitioner claims that evidence of his intoxication and
drug usage would have negated the specific intent required for first-degree murder
and would have bolstered his self-defense claim in that his intoxication would have
made it reasonable for him to believe that the victim was pulling out a weapon, so
as to justify the use of deadly force.
a. Petitioner did not exhaust his available state court remedies
for his ineffective assistance of counsel claim in relation to his
level of intoxication and drug use
Respondent contends that petitioner’s claim is unexhausted because it was
never presented to the state courts. Petitioner argues that the claim was
As a general rule, a state prisoner seeking federal habeas relief must first
exhaust his or her available state court remedies before raising a claim in federal
court. 28 U.S.C. § 2254(b) and (c); see Picard v. Connor, 404 U. S. 270, 275-78
(1971). The Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the
traditional exhaustion requirement, which mandates dismissal of a habeas petition
containing claims that a petitioner has a right to raise in the state courts but has
failed to do so. See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999).
Although exhaustion is not a jurisdictional matter, “it is a threshold question that
must be resolved” before a federal court can reach the merits of any claim contained
in a habeas petition. See Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009). A
habeas petitioner has the burden of proving that he or she has exhausted his or her
state court remedies. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
In the present case, petitioner presented several ineffective assistance of
counsel claims in the pro se Standard 4 Brief on Appeal that he filed in addition to
the brief filed by appellate counsel.3 Petitioner, however, never raised a claim that
trial counsel was ineffective for failing to call his mother or girlfriend to testify
about petitioner’s intoxication on the day of the shooting.
A claim may be considered “fairly presented” only if the petitioner asserted
both the factual and legal basis for his claim to the state courts. McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The doctrine of exhaustion requires that
the same claim under the same theory be presented to the state courts before it can
be raised in a federal habeas petition. Wong v. Money, 142 F.3d 313, 322 (6th Cir.
1998). “Even the same claim, if raised on different grounds, is not exhausted for the
purpose of federal habeas review.” Rayner v. Mills, 685 F.3d 631, 643 (6th Cir.
A habeas petitioner is required to present to the state courts “the same
specific claims of ineffective assistance [of counsel] made out in the habeas petition.”
Wyldes v. Hundley, 69 F.3d 247, 253 (8th Cir. 1995) (quoting Tippitt v. Lockhart,
903 F.2d 552, 554 (8th Cir. 1990). Because petitioner’s claim that counsel was
ineffective for failing to call his mother and girlfriend to testify about his
intoxication on the day of the shooting is different than the ineffective assistance of
counsel claims presented during petitioner’s direct appeals process, this claim has
not been fairly presented to the state courts. See Caver v. Straub, 349 F.3d 340, 34647 (6th Cir. 2003) (citing to Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987).
Standard 4 of Administrative Order 2004-6, 471 Mich. cii (2004), “explicitly provides that a pro se
brief may be filed within 84 days of the filing of the brief by the appellant’s counsel, and may be filed
with accompanying motions.” Ware v. Harry, 636 F. Supp. 2d 574, 594, n.6 (E.D. Mich. 2008).
b. Petitioner’s ineffective assistance of counsel claim in relation
to his level of intoxication and drug use lacks merit
Although petitioner never properly exhausted this claim, a habeas
petitioner’s failure to exhaust his 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
ineffective assistance of counsel 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 at 998.
Petitioner alleges that counsel was ineffective for failing to call either his
mother or girlfriend to testify about his level of intoxication on the day of the
shooting, so as to negate the specific intent required for first-degree murder and
also to buttress either a self-defense or imperfect self-defense claim. Petitioner is
not entitled to relief on his claim for several reasons.
First, petitioner failed to attach any affidavits from these witnesses to his
petition for writ of habeas corpus concerning their proposed testimony and
willingness to testify on petitioner’s behalf. Conclusory allegations of ineffective
assistance of counsel, without any evidentiary support, do not provide a basis for
habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). Petitioner
has failed to attach any offer of proof or any affidavits sworn by the proposed
witnesses concerning their willingness to testify on petitioner’s behalf. In the
absence of such proof, petitioner is unable to establish that he was prejudiced by
counsel’s failure to call these witnesses to testify at trial, so as to support the second
prong of an ineffective assistance of counsel claim. See Clark v. Waller, 490 F.3d
551, 557 (6th Cir. 2007).4
Secondly, this Court notes that federal courts have rejected ineffective
assistance of counsel claims based on an attorney’s failure to raise an intoxication
defense on the ground that the level of intoxication needed to negate specific intent
is so high that the defense is rarely successful. Evans v. Meyer, 742 F.2d 371, 374
(7th Cir. 1984); Wilen v. Wainwright, 793 F. 2d 1190, 1194 (11th Cir. 1986); See also
Vinson v. McLemore, 226 Fed. App’x. 582, 585 (6th Cir. 2007) (trial counsel’s alleged
conduct in relying on self-defense as defendant’s only theory of acquittal, rather
than investigating and pursuing voluntary intoxication defense, was reasonable
trial strategy, and therefore was not ineffective assistance of counsel; trial counsel
explained at evidentiary hearing he never used alcohol as a defense and had never
known of it being successful and that jurors ordinarily did not like the argument
Petitioner’s mother Linda Moore did testify at the motion to suppress hearing, but only testified
concerning petitioner’s level of intoxication on the day of his arrest, December 26, 2012, to buttress
his claim that he was too intoxicated to waive his Fifth Amendment rights. See Tr. 2/22/13, pp. 3950. Ms. Moore offered no testimony concerning petitioner’s intoxication on the date of the shooting.
that a defendant was too drunk to know what he was doing). Petitioner’s actions on
the day in question appeared purposeful enough that any intoxication defense was
unlikely to succeed. (Moreover, a defense counsel’s strategic decision to forego an
intoxication defense in favor of a self-defense argument is reasonable because
intoxication at a level sufficient to affect the ability to form intent would be
inconsistent with self-defense, which requires purposeful action in responding to a
Third, there is no allegation from petitioner that either his mother or
girlfriend were present at the time of the shooting, nor did any of the witnesses
testify to their presence. Without either person being present at the crime scene,
their testimony concerning whether petitioner was justified in using deadly force
would have been of limited value. A defense counsel has no obligation to present
evidence or testimony that would not have exculpated the defendant. See Millender
v. Adams, 376 F.3d 520, 527 (6th Cir. 2004) (internal quotation omitted). Because
petitioner’s mother and girlfriend were not present when the confrontation took
place between petitioner and the victim, they could not have exonerated petitioner
of the crime; thus, counsel was not ineffective in failing to call them as witnesses.
See, e.g., Pillette v. Berghuis, 408 F. App’x. 873, 885-86 (6th Cir. 2010). Stated
differently, counsel was not ineffective in failing to call petitioner’s mother or
girlfriend as witnesses because they could have offered only marginal support for
petitioner’s self-defense claim. See Johnson v. Hofbauer, 159 F. Supp. 2d at 607. To
the extent Petitioner contends that counsel was ineffective for not calling his
mother and his girlfriend to testify as to his level of intoxication, counsel’s strategic
decision not to present such evidence was reasonable and not ineffective because
such evidence would have undermined the self-defense argument. For the reasons
stated above, petitioner is not entitled to relief on his first ineffective assistance of
Petitioner’s ineffective assistance of counsel claim in relation
to an alleged failure by his trial counsel to challenge the
legality of Petitioner’s arrest
Petitioner next claims that counsel was ineffective for failing to challenge the
legality of his arrest. Petitioner claims that the police arrested him without a
warrant at his mother’s home, thus, his confession should have been suppressed as
the fruit of an illegal arrest. To prove that counsel’s failure to litigate a Fourth
Amendment claim competently is the principal claim of ineffectiveness, a defendant
must also prove that his Fourth Amendment claim is meritorious and that there is
a reasonable probability that the verdict would have been different absent the
excludable evidence, in order to demonstrate actual prejudice. Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986).
As an initial matter, this Court notes that the Michigan Court of Appeals
rejected petitioner’s claim, in part, because although the felony warrant in this case
was signed on December 28, 2012, Officer Maye testified that petitioner was
arrested on December 26, 2012 on an outstanding homicide warrant and the
detainee input sheet dated December 26, 2012 shows that it listed the numeric
codes for five different holds or warrants related to petitioner’s arrest. People v.
Charleston, 2015 WL 1119720, at * 7. Thus, Petitioner fails to establish a factual
basis for his claim.
In any event, even if the police did not possess a valid arrest warrant, they
did have probable cause to arrest petitioner for the murder. People v. Charleston,
2015 WL 1119720, at * 7. An arrest made at a suspect’s home without a warrant,
but with probable cause, does not render a suspect’s continued detention unlawful
and will not render any subsequent statements or confessions made by a suspect to
the police at the police station after Miranda warnings have been given by the
police inadmissible. New York v. Harris, 495 U.S. 14, 18 (1990). Although the
Supreme Court has held that a warrantless arrest inside of a home violates the
Fourth Amendment, See Payton v. New York, 445 U.S 573 (1980), the Supreme
Court in Harris noted that its holding in Payton was based on the “overriding
respect for the sanctity of the home that has been embedded in our traditions since
the origins of the Republic.” New York v. Harris, 495 U.S. at 17 (quoting Payton, 445
U.S. at 601). The Supreme Court in Harris further ruled that nothing in its
decision in Payton suggested that a warrantless arrest in the home renders a
suspect’s continued custody unlawful once he or she has been removed from the
residence. Id. The Supreme Court further noted that suppressing a defendant’s
statement given to the police after he or she had been removed from the home
would not serve the purpose of the rule which makes a warrantless arrest in a home
illegal, because the purpose of the warrant requirement in that situation is to
protect the home. New York v. Harris, 495 U.S. at 20.
In the present case, even if petitioner was arrested at home without a
warrant, it would not justify the suppression of the confession that petitioner
subsequently made to the police at police headquarters after being advised of his
Miranda rights. There was no basis for suppressing the confession on this ground
and petitioner is unable to show that he was prejudiced by counsel’s failure to
challenge the admissibility of his confession on this basis.
Petitioner’s ineffective assistance of counsel claim in relation
to an alleged failure by counsel to challenge Petitioner’s
Petitioner finally contends that counsel was ineffective for failing to seek the
suppression of his confession based on the pre-arraignment delay in this case.
Petitioner’s claim is based on the Supreme Court's decision in County of
Riverside v. McLaughlin, 500 U.S. 44 (1991). Riverside was a civil rights case
brought under 42 U.S.C. § 1983. The Supreme Court held that the federal
constitution requires that a defendant be given a reasonably prompt probable cause
determination, such as arraignment, following his arrest, and that a delay in
arraignment greater than 48 hours after arrest is presumptively unreasonable. See
id. at 55-58.
Even if there was an unreasonable delay in arraignment, petitioner cannot
show a reasonable probability that a motion to suppress his statement on this basis
would have been successful. McLaughlin was a civil rights action and thus did not
consider the effect of pre-arraignment delay on the voluntariness of a statement
made to the police. See Davis v. Jones, 306 F. App’x. 232, 236 (6th Cir. 2009).
Indeed, the Supreme Court has explicitly declined to fashion an appropriate remedy
for a McLaughlin violation. See Powell v. Nevada, 511 U.S. 79, 84 (1994). The
Michigan courts have likewise held that suppression of a statement is not per se
required for a McLaughlin violation. See People v. Manning, 243 Mich. App. 615,
636-44; 624 N.W. 2d 746 (2000). Under both federal and Michigan law, any
unnecessary delay in having a defendant arraigned before a magistrate or other
judicial officer is insufficient, in and of itself, to justify the suppression of an
otherwise voluntary confession made during the period of the pre-arraignment
delay; instead, delay is only one of several relevant factors to be considered in
determining the voluntariness of a criminal defendant’s statements. See United
States v. Christopher, 956 F.2d 536, 538 (6th Cir. 1991); People v. Cipriano, 431
Mich. 315, 319; 429 N.W. 2d 781 (1988). If the totality of the circumstances indicate
that a confession was voluntarily given, it should not be excluded solely because of
pre-arraignment delay. Cipriano, 431 Mich. at 319.
In this case, based on a review of the record, the totality of circumstances
indicate that petitioner’s confession was voluntary—in spite of the pre-arraignment
delay—because there is no allegation that petitioner was not advised of his Miranda
warnings, and there is no evidence of intimidating police conduct, that the police
interview was coercive, or that petitioner was otherwise harassed or mistreated.
Christopher, 956 F. 2d at 539. Because the totality of the circumstances indicate
that petitioner’s statement was voluntary, counsel was not ineffective for failing to
move to suppress petitioner’s statements because of the pre-arraignment delay. See
Davis, 306 Fed. App’x. at 237-39 (counsel not ineffective for failing to seek
suppression of petitioner’s statement based on a 96 hour delay between the arrest
and arraignment when the other factors established that the statement was
voluntary). Petitioner is not entitled to habeas relief on his third claim.
The Court denies the petition for writ of habeas corpus. The Court also
denies 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 such a denial, the
applicant is required to show that reasonable jurists could debate whether, or
agree that, the petition should have been resolved in a different manner, or that
the issues presented were adequate to deserve encouragement to proceed further.
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court rejects a
habeas petitioner’s constitutional claims on the merits, the petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims to be debatable or wrong. Id. at 484. “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 denies petitioner a
certificate of appealability because he failed to make a substantial showing of the
denial of a federal constitutional right. See Dell v. Straub, 194 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.
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of
Habeas Corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal
in forma pauperis.
Dated: January 9, 2018
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically filed, and the parties
and/or counsel of record were served on January 9, 2018.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?