Chenault v. Campbell
OPINION AND ORDER Denying 1 Petition for Writ of Habeas Corpus, filed by Schuyler Dion Chenault; and Declining to Issue a Certificate of Appealability or Leave to Appeal in forma pauperis. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil No. 5:15-CV-12686
HONORABLE JOHN CORBETT O’MEARA
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
OR LEAVE TO APPEAL IN FORMA PAUPERIS
Schuyler Chenault, (“Petitioner”), confined at the Bellamy Creek Correctional
Facility in Ionia, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his application, filed through his attorney, Craig A. Daly, petitioner
challenges his convictions for first-degree felony murder, M.C.L.A. 750.316, and
possession of a firearm during the commission of a felony, M.C.L.A. 750.227b. For the
reasons stated below, the petition for a writ of habeas corpus is DENIED.
Petitioner was convicted of the above offenses following a jury trial in the Oakland
County Circuit Court. This Court recites verbatim the relevant facts relied upon by the
Michigan Supreme Court in affirming petitioner’s 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):
The defendant’s convictions for felony murder, MCL 750.316(1)(b), and
possession of a firearm during the commission of a felony, MCL 750.227b,
arose out of the shooting death of Kevin Harris in Pontiac, Michigan, on June
29, 2008. Harris was a cocaine dealer, who often used Jared Chambers as a
middleman to connect with buyers. Chambers occasionally contacted Harris
through Harris’s girlfriend, Heather Holloway.
On June 29, 2008, Chambers arranged a transaction between the defendant and
Harris. The defendant and Chambers, together with several others, met Harris
on a side street in Pontiac. Harris pulled up behind the defendant’s car.
Holloway was in Harris’s passenger seat. As both Chambers and the defendant
approached Harris’ car, shots were fired at Harris, and he was struck in the
The Pontiac Police Department conducted an investigation and interviewed
Holloway on June 29 and July 2, 2008, and Chambers on June 30, 2008. All
of these interviews were video recorded. Holloway also produced two written
statements, one after each interview, and Detective Steven Wittebort
summarized the interviews in an incident report. Holloway’s written
statements and the police report summarizing them were provided to defense
counsel before trial, but the video recordings were not.
Holloway was more forthcoming in her second interview than in her first. At
her first interview, Holloway told the police that two unknown men walked up
to the car and shot Harris. During her second interview, which took place after
Harris died on June 30, 2008, Holloway said that Harris had been shot as part
of a drug deal. Although Holloway identified the defendant in a photo array,
neither of Holloway’s written statements mentioned Chambers’s presence.
According to Wittebort’s report, Holloway said that she did not get a good
look at the shooter but that she could identify him. The report also revealed
that she confidently selected the defendant’s photo from an array.
The defendant never denied that he was present at the scene of the shooting,
and most of the facts were likewise not in dispute. The sole question at trial
concerned the identity of the shooter. Only the defendant, Holloway, and
Chambers witnessed the shooting and, unsurprisingly, they did not agree about
what happened: the defendant identified Chambers as the shooter while
Holloway and Chambers identified the defendant.1 There was no physical
evidence to tie either the defendant or Chambers to the shooting. The defense
theory was that Chambers shot Harris, and that Holloway identified the
defendant as the shooter out of fear of Chambers.
On the last day of trial, the prosecution called Wittebort as its final witness.
When questioned, Wittebort was surprised that Holloway’s second written
statement did not confirm that she had mentioned Chambers and was confident
that the video recordings would verify his recollection. He was also surprised
to learn that the recordings had not been provided to the defendant. On March
11, 2010, the defendant was convicted of felony murder and felony-firearm.
On April 13, 2010, defense counsel filed a motion for a new trial and requested
a copy of the interview recordings. Later, counsel amended the motion to add
claims of ineffective assistance of counsel and prosecutorial misconduct
regarding the failure to provide the recorded statements. There was no dispute
that the defendant never had the recordings.2 The trial court conducted two
evidentiary hearings on the motion. On February 29, 2012, Wittebort testified
that the police generally let the prosecution know when recordings are
available, but the regular practice was to provide them only “if there’s an
admission or something of that nature from the person of interest or defendant
in that matter.”3 On March 8, 2012, the trial court granted the defendant’s
motion for a new trial, concluding that his due process rights were violated
pursuant to Brady because the suppressed videotaped recordings undermined
confidence in the outcome of the trial.
The Court of Appeals reversed the trial court. People v. Chenault, unpublished
opinion per curiam of the Court of Appeals, issued November 27, 2012
Three others were present at the scene, but did not provide any evidence
supporting either theory. Two of them were never questioned by police. The third did not
see who shot Harris but testified that immediately after the shot was fired, he saw the
defendant standing on the driver’s side of Harris’s car. The prosecution concedes that the
Court of Appeals was mistaken in stating otherwise. (Footnote original).
In fact, the defendant’s first counsel submitted an affidavit stating that he had not
received the recorded statements. (Footnote original).
Wittebort also testified that he had never heard of the phrase “Brady material.”
(Docket Nos. 309384 and 310456).
People v. Chenault, 495 Mich. 142, 146–49, 845 N.W.2d 731, 733–35 (2014).
Petitioner seeks a writ of habeas corpus on the following grounds: (1) The
prosecutor withheld exculpatory evidence, (2) petitioner was denied a fair trial because of
prosecutorial misconduct, (3) ineffective assistance of counsel, and (4) petitioner is
entitled to an evidentiary hearing on his ineffective assistance of counsel claims.
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
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–
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
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.
The Supreme Court has explained that “[A] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “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 v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[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. at 102 (citing Lockyer v. Andrade,
538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), “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. Habeas relief is not appropriate unless each ground
which supported the state court’s decision is examined and found to be unreasonable
under the AEDPA. See Wetzel v. Lambert, 132 S. Ct. 1195, 1199 (2012).
A. Claim # 1. The Brady claim.
Petitioner alleges that the prosecution failed to provide the Pontiac Police
Department videotaped interviews of Holloway, made on June 29 and July 2, 2008, and
of Chambers made on June 30, 2008, to defense counsel.
To prevail on his claim, petitioner must show (1) that the state withheld
exculpatory evidence and (2) that the evidence was material either to guilt or to
punishment irrespective of the good faith or bad faith of the prosecution. Brady v.
Maryland, 373 U.S. 83, 87 (1963). Evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A “reasonable probability is a probability
sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S.
667, 683 (1985). In Strickler v. Greene, 527 U.S. 263, 281-82 (1999), the Supreme
Court articulated three components or essential elements of a Brady claim: (1) the
evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; (2) the evidence must have been suppressed by the State, either
willfully or inadvertently; and (3) prejudice must have ensued. “Prejudice (or
materiality) in the Brady context is a difficult test to meet.” Jamison v. Collins, 291 F.3d
380, 388 (6th Cir. 2002). A habeas petitioner bears the burden of showing the
prosecution suppressed exculpatory evidence. See Bell v. Howes, 703 F.3d 848, 853 (6th
As found by the Michigan Supreme Court, the prosecution conceded that the
evidence was suppressed and that the evidence was favorable to petitioner. However, in
a detailed opinion, the Michigan Supreme Court further found that petitioner failed to
meet the third prong of the suppression test as follows:
We now apply the controlling Brady test to the defendant’s claim. As an
initial matter, we note that the prosecution has conceded that the evidence in
question was suppressed. That leaves two questions: whether the suppressed
evidence was favorable to the defendant, either as exculpatory or impeaching
evidence, and whether it was material.
In contrast to the question of materiality, the favorability of evidence is a
simple threshold question that need not delay us long. Only three people
witnessed the shooting: Holloway, Chambers, and the defendant. Other than
the testimony of Holloway and Chambers, there was no other evidence at trial
that identified the defendant as the shooter. Because the videotaped
statements could have impeached Holloway and Chambers as well as
undermined the strength of Holloway’s identification, the evidence was
favorable to the defense.
We are not convinced, however, that the suppressed evidence was material.
“The question is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy of
confidence.” We conclude that, even in the absence of the suppressed
evidence, the defendant received a trial that resulted in a verdict worthy of
confidence, because the cumulative effect of the evidence was not material.
We disagree with the defendant that Wittebort’s promises of leniency to both
Holloway and Chambers were material. While the detectives assured both
witnesses that they would not be investigated or charged for drug crimes,
these promises of leniency were not conditioned on any behavior on the part
of the witnesses. Indeed, Chambers decided not to make any written statement
even after such promises were made, and, likewise, any alleged promises of
leniency occurred after Chambers implicated himself in the drug activity. For
her part, Holloway also admitted that she lied in her first interview, promises
of leniency notwithstanding, and in her second interview, the alleged
promises were made after she disclosed the drug activity.
We are similarly unconvinced that the evidence would have undermined
Holloway’s identification of the defendant in a material way. While there
were minor discrepancies between the characterization of Holloway’s
identification as expressed in the disclosed material and at trial as contrasted
with her recorded identification, she was able to quickly identify the
defendant as the shooter in her second interview. Although the specific strong
language that Wittebort attributed to Holloway as she identified the defendant
is not supported by the recording, Holloway did identify the defendant with
confidence. Holloway’s honest qualifications about her ability to view the
shooter do not undermine the overall strength of her identification.
Finally, we disagree with the defendant that the suppressed evidence supports
his trial theory that Chambers was the shooter, and that Holloway only
identified the defendant as the shooter out of fear of Chambers. Although
Holloway was not forthright in her first statement about Chambers’s
involvement, in her second interview she expressed confidence that Chambers
must have been involved. If Holloway were frightened of Chambers to the
extent that she would implicate an innocent third party, she would not have
engaged in a discussion with the police about Chambers’s own culpability.
The suppressed evidence did not contain information that leads us to conclude
that defense counsel would have asserted the defense that Holloway
misidentified the defendant, rather than the cover-up theory that defense
counsel pursued at trial. Furthermore, another witness placed the defendant
on the side of Harris’s car where the shooter indisputably stood.
We therefore conclude that, even in the absence of the suppressed evidence,
the defendant received a trial that resulted in a verdict worthy of confidence.
The defendant’s Brady claim must fail because the suppressed evidence was
not material to his guilt.
People v. Chenault, 495 Mich. at 156–59 (2014)(citations and footnote omitted).
Petitioner has met the first and second prong of the Brady test, as articulated in
Strickler v. Greene, by showing suppressed evidence favorable to his defense; however,
petitioner fails to satisfy the third prong of the test by demonstrating that the evidence
was material, in that it would have undermined the confidence in the verdict.
Petitioner argues that the videotaped recording would have impeached the
testimony of Holloway and Chamber who testified that they were present when Harris
was shot in the head.
Evidence that impeaches a witness “may not be material if the State’s other
evidence is strong enough to sustain confidence in the verdict.” Smith v. Cain, 132 S. Ct.
627, 630 (2012)(citing United States v. Agurs, 427 U.S. 97, 112–113, and n. 21 (1976)).
Impeachment evidence may be considered to be material where the witness in question
supplies the only evidence linking the defendant to the crime or the only evidence of an
essential element of the offense. See United States v. Avellino, 136 F.3d 249, 256 (2nd
Cir. 1998); Lyon v. Senkowski, 109 F. Supp. 2d 125, 139 (W.D.N.Y. 2000). The Sixth
Circuit has noted that: “[C]onsiderable authority from the Supreme Court and our court
indicates that a defendant suffers prejudice from the withholding of favorable
impeachment evidence when the prosecution’s case hinges on the testimony of one
witness.” Harris v. Lafler, 553 F.3d 1028, 1034 (6th Cir. 2009)(internal citations
Following the shooting, Detective Steven Wittebort approached Jared Chambers,
Heather Holloway, and Keith Randall Mcbee-Blevins Jr. to gather information. Based
on the information obtained, Detective Wittebort put together some photographs to see if
Chambers and Holloway could identify the shooter. Wittebort returned to Chambers,
Holloway, and Mcbee-Blevins with photographs of petitioner and asked if the individual
in the pictures was the shooter. Detective Wittebort testified that both Chambers and
Holloway immediately identified petitioner as the shooter. (T. 3/11/2010, Vol III, pp. 6768). Mcbee-Blevins also identified petitioner standing at the driver’s side of the vehicle,
where Harris was located, at the time of the shooting. (T. 3/9/2010, Vol II, p. 187).
Contrary to petitioner’s assertions, the testimony of Holloway and Chambers
“was not the central piece of evidence holding together an otherwise feeble case, but was
merely one piece of a cumulative evidentiary puzzle.” See Beuke v. Houk, 537 F.3d 618,
636 (6th Cir. 2008). Because the evidence presented strongly supports a finding that
petitioner stood at the driver’s side of the vehicle immediately proceeding the firing of
gunshots and that both Chambers and Holloway identified petitioner as the shooter
following the shooting, the objective evidence in this case sufficiently supported a
finding that petitioner shot the decedent. The failure to produce the audio recordings of
Holloway and Chamber’s statements do not undermine this Court’s confidence in the
The Michigan Supreme Court’s findings on the prejudice element of Brady were
not objectively unreasonable. See Bell v. Howes, 703 F.3d at 854. Therefore, “Under
AEDPA, if the state-court decision was reasonable, it cannot be disturbed.” Hardy v.
Cross, 132 S. Ct. 490, 495 (2011). Petitioner is not entitled to habeas relief on his first
B. Claim # 2. The prosecutorial misconduct claim.
Petitioner alleges that he was denied a fair trial when the prosecutor (a) tried him
on a charge not properly before the court, (b) improperly introduced evidence on
petitioner’s exercise of his right to counsel, (c) introduced and improperly argued other
bad acts, (d) made improper arguments not based on evidence at trial and expressed his
personal belief in his guilt, and (e) misstated the law to the jury.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v.
Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper comments will be
held to violate a criminal defendant’s constitutional rights only if they “‘so infected the
trial with unfairness as to make the resulting conviction a denial of due process.’”
Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974)). Prosecutorial misconduct will thus form the basis for habeas
relief only if the conduct was so egregious as to render the entire trial fundamentally
unfair based on the totality of the circumstances. Donnelly v. DeChristoforo, 416 U.S. at
643-45. In order to obtain habeas relief on a prosecutorial misconduct claim, a habeas
petitioner must show that the state court’s rejection of his prosecutorial misconduct claim
“was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Parker v. Matthews, 567 U.S. 37, 48 (2012)(quoting Harrington, 562 U.S. at 103).
Petitioner first contends that the prosecutor committed misconduct by trying him
on a charge that was not properly before the court. Petitioner was bound over to stand
trial on a charge of first-degree felony murder but the prosecutor later amended the
information in circuit court to a charge of open murder.
Under Michigan law, it is proper to charge a defendant with the crime of open
murder. Such a charge gives a circuit court jurisdiction to try a defendant on first and
second degree murder charges. See Taylor v. Withrow, 288 F.3d 846, 849 (6th Cir.
2002); see also Williams v. Jones, 231 F. Supp. 2d 586, 589 (E.D. Mich. 2002)(citing
M.C.L.A. 750.316, 750.318; People v. McKinney, 65 Mich. App. 131, 135; 237 N.W.2d
215, 218 (1975)).
The Michigan Court of Appeals applied a plain error review to this claim and
denied petitioner’s claim as follows:
Defendant first argues that the prosecution abused its discretion by issuing the
third amended information, which was not consistent with the district court’s
bindover determination. As discussed in Issue II, an information may be
amended at any time to correct a variance between the information and the
proofs, unless an amendment would unfairly surprise or prejudice the
defendant. Here, the amendment was consistent with the evidence presented
at the preliminary examination, it did not involve a new or different crime, it
occurred months before trial, and it did not affect defendant’s defense that he
was not the shooter. Accordingly, the prosecution did not abuse its discretion
by issuing the third amended information.
People v. Chenault, No. 309384, 2012 WL 12507825, at *12 (Mich. Ct. App. Nov. 27,
2012), aff’d on other grounds, 495 Mich. 142, 845 N.W.2d 731 (2014)(internal citation
A state criminal defendant has a due process right to be informed of the nature of
the accusations against him or her. Lucas v. O’Dea, 179 F.3d 412, 417 (6th Cir. 1999).
Notice and opportunity to defend against criminal charges as guaranteed by the Sixth
Amendment to the United States Constitution are an integral part of the due process
protected by the Fourteenth Amendment and therefore apply to state prosecutions. Cole
v. Arkansas, 333 U.S. 196, 201 (1948); In Re Oliver, 333 U.S. 257, 273 (1948). “The
due process clause of the Fourteenth Amendment mandates that whatever charging
method the state employs must give the criminal defendant fair notice of the charges
against him to permit adequate preparation of his defense.” Olsen v. McFaul, 843 F.2d
918, 930 (6th Cir. 1988).
A complaint or indictment need not be perfect under state law so long as it
adequately informs the petitioner of the crime in sufficient detail so as to enable him or
her to prepare a defense. Therefore, an indictment “which fairly but imperfectly informs
the accused of the offense for which he is to be tried does not give rise to a constitutional
issue cognizable in habeas proceedings.” Mira v. Marshall, 806 F.2d 636, 639 (6th Cir.
1986); see also Dell v. Straub, 194 F. Supp. 2d 629, 653-54 (E.D. Mich. 2002). An
alleged defect in a state court information or indictment is therefore not constitutional
error unless a habeas petitioner can establish that: (1) he did not receive adequate notice
of the charges; and (2) he was therefore denied the opportunity to defend himself against
the charges. See Roe v. Baker, 316 F.3d 557, 570 (6th Cir. 2002). In addition, “When
reviewing amendments to state charging documents in habeas corpus proceedings, the
federal courts focus on the questions whether the defendant was surprised by the
amendment or otherwise prejudiced in his ability to defend himself at trial.” Rhea v.
Jones, 622 F. Supp. 2d 562, 583 (W.D. Mich. 2008)(citing Tague v. Richards, 3 F.3d
1133, 1141–42 (7th Cir. 1993); Wright v. Lockhart, 854 F.2d 309, 312–13 (8th Cir.
The failure to arraign a defendant in open court after an information is filed
against him or her is not a deprivation of due process absent a showing of any resulting
prejudice. See Tapia v. Tansy, 926 F.2d 1554, 1558 (10th Cir. 1991). Formal
arraignment is not constitutionally required if it is shown that the defendant knew what
he or she was being accused of and is able to defend himself or herself adequately. Dell
v. State of La., 468 F.2d 324, 325 (5th Cir. 1972).
Petitioner is unable to show that he was surprised by the amendment of the
information or that he was prejudiced in his ability to defend himself at trial. An
accused’s constitutional right to notice of the criminal charge or charges brought against
him or her can be satisfied by other means, such as a preliminary examination. See
Stevenson v. Scutt, 531 F.App’x 576, 580 (6th Cir. 2013)(noting that victim’s testimony
from the preliminary examination provided petitioner with notice of the time frame of
the assaults). The witness’s testimony from the preliminary examination clearly put
petitioner on notice as to the nature of the charges. Holloway testified at the preliminary
examination that when Jared Chambers entered the car, he sat down and closed the door.
Chambers sat behind her. She further testified that petitioner walked across the front of
the car, proceeded to the back of the car, opened the back door behind the driver’s side
of the car and immediately started shooting saying, “Give me everything you got.” After
which, petitioner said to Holloway, “Go bitch, bitch.” (T. 9/11/2008, Vol. III, pp. 71-74).
When asked where was Chambers, Holloway testified “Jared was out the car and when I
took off out the car when the first shot fired, I took off running out the car and there was
a boy running in front of me in the park. And I assumed that that was Jared.” (Id. at 74).
Chambers testified: “I got out of the car and I go to walk--to sit--when I get out of
the car, I see that “Kutta’s” girlfriend, Heather, is with him; so instead of sitting in the
front seat, I go sit in the backseat behind Heather.” Chambers further testified “Schuyler
walks around the back of the car and he walks up to the driver side window and he said,
give me your shit or give me your money, something like that. And before he even
finished saying that hardly, he shot ‘Kutta.’” (Id. at 23, 25).
Kevin Mcbee Blevins testified that he was at his trailer with his girlfriend,
daughter and Jared Chambers when a car pulled up with petitioner in the backseat and a
male driver and a female in the front seat. (T. 9/11/2008, Vol. III, pp. 45-46). The
record reflects that Blevins and Chamber got into the back seat of the car to drive to
Pontiac to purchase cocaine. Blevins testified that petitioner and Chambers exited from
the back seat of the car when Harris returned with the cocaine. (Id. at 51-55). Blevins
further testified that after hearing a gunshot, the following occurred:
I said something to the driver, you know and he turned around and put a
gun to my face and told me to get out of the car and I got out of the car.
I heard a gunshot and then right after I got out of the car, I heard another
(Id. at 56).
The testimony given at the preliminary examination placed petitioner on notice as
to the charges against him.
Moreover, petitioner was convicted by a jury after a trial. The Ninth Circuit has
observed that neither Cole v. Arkansas, supra, nor In re Oliver, supra, “foreclose the
premise that constitutionally adequate notice may come from evidence presented at
trial.” See Troches v. Terhune, 74 F.App’x 736, 737 (9th Cir. 2003). The witnesses’s
testimony at trial was sufficient to afford petitioner adequate notice of the charges
against him. See Bruce v. Welsh, 572 F.App’x 325, 331 (6th Cir. 2014). Furthermore,
petitioner’s defense at trial shifted the culpability of the shooting death of Harris from
himself to Chambers. Petitioner is unable to establish that the failure to formally arraign
him on the open murder charge violated his due process right to a fair trial. Petitioner is
not entitled to relief on this part of his second claim.
Petitioner alleges that the prosecutor denied him due process and a fair trial by
improperly introducing evidence that petitioner exercised his right to counsel when he
turned himself into the police accompanied by his attorney.
A prosecutor may not imply that an accused’s decision to meet with counsel, even
shortly after the incident which gives rise to the criminal charges, implies guilt. A
prosecutor must also refrain from suggesting to the jury that a defendant hired an
attorney to generate an alibi or to get his or her “story straight.” Sizemore v. Fletcher,
921 F.2d 667, 671 (6th Cir. 1990)(internal citations omitted).
In Samu v. Elo, 14 F.App’x 477, 479 (6th Cir. 2001), the Sixth Circuit held that a
federal habeas petitioner failed to show any prejudice resulting from the prosecutor’s
comment that petitioner had consulted with an attorney shortly after the murder for
which he was convicted, where the comment was an isolated incident which occurred
during cross-examination and was not revisited or developed during closing argument.
Habeas relief should be denied where the prosecutor’s comments offer no suggestion that
the petitioner’s hiring of an attorney establishes his or her guilt. Ridley v. Walter, 1999
WL 1040089, *1 (9th Cir. November 5, 1999).
The prosecutor’s comment that petitioner was accompanied by his father and his
attorney was an isolated incident which occurred during the direct-examination of
Detective Steven Wittebort and was not revisited or developed during closing argument.
The prosecutor questioned Detective Wittebort about the attempts to arrest
petitioner following the issuance of an arrest warrant. Wittebort testified that he
consulted the LEIN system, obtained the address of petitioner’s mother and father, and
then contacted the Oakland County Sheriff’s Office to look for petitioner in Farmington
Hills and Detroit. Wittebort further testified that arrangements were made for petitioner
to turn himself in, accompanied by his father and his attorney. (T. 3/11/2010, Vol. III,
pp. 69-70). Trial counsel did not object to the testimony. Wittebort’s comment that
petitioner’s father and attorney were present at the time of the arrest was unresponsive
and not elicited. The record does not indicate that the prosecutor knew Wittebort would
mention the presence of counsel at the time of arrest. The reference to petitioner’s
attorney “was an unsolicited aside to testimony that was otherwise responsive to
reasonable questioning.” United States v. Spires, 514 F.App’x 569, 574 (6th Cir. 2013).
As a result, the prosecutor did not improperly refer to the petitioner’s right to exercise
his right to an attorney. This part of petitioner’s prosecutorial misconduct claim is
Petitioner next alleges that the prosecutor introduced and improperly argued other
bad acts evidence, in violation of M.R.E. 404(b).
Although petitioner alleges prosecutorial misconduct, his claim “amounts in the
end to a challenge to the trial court’s decision to allow the introduction of this evidence.”
Webb v. Mitchell, 586 F.3d 383, 397 (6th Cir. 2009). “A prosecutor may rely in good
faith on evidentiary rulings made by the state trial judge and make arguments in reliance
on those rulings.” Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008).
The Michigan Court of Appeals found a proper purpose existed for the admission of the
evidence as follows:
The record shows that the prosecutor’s questions regarding whether defendant
had shot himself in the stomach were not for the purpose of introducing
evidence of defendant’s other crimes, wrongs, or acts pursuant to MRE
404(b). Rather, the questions were posed to impeach defendant’s testimony
that he did not own or carry a gun during the timeframe surrounding the
Pontiac shooting. Keel opened the door to such impeachment by initially
questioning defendant regarding whether he owned or carried a gun. Thus, the
prosecutor’s questions in that regard were proper.
People v. Chenault, 2012 WL 12507825, at *14.
The trial judge concluded that this evidence was relevant and admissible.
Furthermore, there is no violation of clearly established federal law for the prosecutor to
rely on the trial judge’s ruling in admitting this “other acts” evidence of a post-offense
shooting in Detroit, regardless if the trial judge’s ruling was correct, thus petitioner is not
entitled to habeas relief on his claim. See Key v. Rapelje, 634 F.App’x 141, 146–47 (6th
Petitioner alleges that the prosecutor improperly argued during closing argument
that petitioner happened to be shot 30 days later in Detroit to show that petitioner was
more likely the shooter during the Pontiac incident. The Michigan Court of Appeals
found that the comments were improper but concluded that the comments did not
undermine the fairness of petitioner’s trial as follows:
[T]he issue presented in this case was whether defendant or Chambers shot
Harris. Defendant admitted that he contacted Chambers to purchase cocaine,
that he was present at the scene of the Pontiac shooting, and that he had
previously been involved in other drug deals with people who were armed
with guns. Given defendant’s testimony that it was not unusual for him to be
involved in drug deals in which weapons were involved, the fact that he was
shot within thirty days after the Pontiac incident did not make it any more or
less likely that he rather than Chambers committed the shooting. Therefore,
the admission of the evidence, although admitted for improper propensity
purposes, did not warrant reversal.
People v. Chenault, 2012 WL 12507825, at *14.
Petitioner next alleges that the prosecutor became an unsworn witness by
informing the jury that Erica Upshaw and Joshua Koch would not be present to testify
because one was in prison and the other was a fugitive. (T. 3/8/2010, Vol. I, p. 14-15).
It is improper for a prosecutor during argument to bring to the jury any purported
facts which have not been introduced into evidence and which are prejudicial. Byrd v.
Collins, 209 F.3d 486, 535 (6th Cir. 2000). However, prosecutors must be given leeway
to argue reasonable inferences from the evidence. Id.
The Michigan Court of Appeals rejected petitioner’s claim as follows:
The prosecutor’s mention of Koch and Upshaw during his opening statement
was consistent with his responsibility to outline the facts and to explain why
they would not be present to testify. “The purpose of an opening statement is
to tell the jury what the advocate proposes to show.” People v. Moss, 70
Mich.App 18, 32; 245 NW2d 389 (1976). Moreover, any alleged error was
cured by the trial court’s instruction to the jury that the attorneys’ statements
and comments were not evidence. “Jurors are presumed to follow their
instructions.” People v. Meissner, 294 Mich.App 438, 457; 812 NW2d 37
People v. Chenault, 2012 WL 12507825, at *15.
The prosecutor in this case did not argue any facts that had not been introduced
into evidence. When the prosecutor referred to why Koch and Upshaw would not be
present to testify, he did so only to explain why these witnesses were not in court to
testify, even though they were present at the time of the shooting. Such comments were
not improper. See e.g. United States v. Washam, 468 F.App’x 568, 573–74 (6th Cir.
2012)(when viewed in context, there was nothing improper about prosecutor’s opening
statement informing jury that some evidence about the crime would not be admitted). In
any event, the prosecutor’s remarks were ameliorated by the trial court’s instruction that
the lawyers’ comments and statements were not evidence. (T. 3/11/2010, Vol. III, p.
190). See Hamblin v. Mitchell, 354 F.3d 482, 495 (6th Cir. 2003).
Petitioner alleges that the prosecutor expressed his personal opinion during
rebuttal when he told the jury “You have the option to choose either first degree
premeditated or first degree felony or both. I say he committed both.” (T. 3/11/2010,
Vol. III, p. 184).
A prosecutor may not express a personal opinion concerning the guilt of a
defendant or the credibility of trial witnesses, because such personal assurances of guilt
or vouching for the veracity of witnesses by the prosecutor “exceeds the legitimate
advocates’ role by improperly inviting the jurors to convict the defendant on a basis
other than a neutral independent assessment of the record proof.” Caldwell v. Russell,
181 F.3d 731, 737 (6th Cir. 1999)(internal citations omitted). However, a prosecutor is
free to argue that the jury should arrive at a particular conclusion based upon the record
evidence. Id. “[G]enerally, improper vouching involves either blunt comments, or
comments that imply that the prosecutor has special knowledge of facts not in front of
the jury or of the credibility and truthfulness of witnesses and their testimony.” See
United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)(internal citations omitted). It
is worth noting that the Sixth Circuit has never granted habeas relief for improper
vouching. Byrd v. Collins, 209 F.3d at 537, and n. 43. Even on direct appeal from a
federal conviction, the Sixth Circuit has held that to constitute reversible error, a
prosecutor’s alleged misconduct of arguing his personal belief, in a witness’ credibility
or in a defendant’s guilt, must be flagrant and not isolated. See United States v.
Humphrey, 287 F.3d 422, 433 (6th Cir. 2002).
Petitioner is not entitled to habeas relief on this claim because the prosecutor’s
comment that he believed that petitioner could be found guilty of both first degree
premeditated murder and first degree felony murder were brief and isolated and based on
evidence presented at trial. Finally, even if these statements amounted to improper
vouching, they did not rise to the level of a due process violation necessary for federal
habeas relief, because the sizeable amount of evidence offered by the state against
petitioner made it unlikely that the jury was misled by these brief statements. See Wilson
v. Mitchell, 250 F.3d 388, 398 (6th Cir. 2001). Furthermore, any error committed in a
prosecutor’s closing argument can be corrected “by instructing the jury that closing
arguments are not evidence.” United States v. Crosgrove, 637 F.3d 646, 664 (6th Cir.
Petitioner next claims that the prosecutor misstated the law by informing the jury
that he only needed to prove the crime committed based on the evidence without
reasonable doubt. (T. 3/8/2010, Vol. I, p. 32; 3/11/2010, Vol. III, p. 179). Petitioner
claims that the prosecutor misstated the law during voir dire and when explaining
premeditation and reasonable doubt during closing argument. In rejecting this claim, the
Michigan Court of Appeals found that the trial court judge “instructed the jury that it was
to follow only the court’s instructions on the law, and the trial court correctly instructed
the jury on reasonable doubt and the elements of premeditated murder.” The Michigan
Court of Appeals further found that “the trial court’s instructions cured any alleged
misstatement of law by the prosecutor.” Chenault, 2012 WL 12507825, at *16. In light
of the trial court’s instructions on premeditation and reasonable doubt, any misstatements
by the prosecutor were harmless error, at worst. See United States v. Deitz, 577 F.3d 672,
696-97 (6th Cir. 2009). Petitioner is not entitled to relief on his unsworn testimony and
Finally, although petitioner argues that he should be given relief due to the
cumulative effect of his prosecutorial misconduct claims, there is no clearly established
federal law to grant relief on the cumulative effect. See Lorraine v. Coyle, 291 F.3d 416,
447 (6th Cir. 2002). Petitioner is not entitled to relief on his second claim.
C. Claims # 3 and # 4. The ineffective assistance of counsel claims and
evidentiary hearing claim.
The Court will consolidate Claims 3 and 4 together because they are interrelated.
In Claim 3, petitioner alleges that he was denied is right to the effective assistance
of counsel when trial counsel Alvin Keel (a) failed to object to the improper charge at
trial, (b) agreed to an improper charge for trial, (c) failed to request an instruction and to
object to erroneous jury instructions, (d) failed to object to a juror, (e) failed to obtain
video recorded statements of witnesses, (f) failed to challenge the identification of a
prosecution witness , and (g) failed to object to prosecutorial misconduct.
In Claim # 4, petitioner alleges that he was denied his right to an evidentiary
hearing in connection with his ineffective assistance of counsel claims.
Taking petitioner’s fourth claim first, this Court does not have the power to grant
habeas relief on petitioner’s claim that the Michigan Court of Appeals improperly denied
his motions to remand for an evidentiary hearing pursuant to M.C.R. 7.211. There is no
federal constitutional right to appeal a state court conviction. Cleaver v. Bordenkircher,
634 F.2d 1010, 1011 (6th Cir. 1980). Where a habeas petitioner alleges a denial of his or
her right to appeal a state criminal conviction, he or she is not entitled to federal habeas
relief. Tate v. Livesay, 612 F. Supp. 412, 413 (M.D. Tenn. 1984). In addition, violations
of state law and procedure which do not infringe specific federal constitutional
protections are not cognizable claims under Section 2254. Estelle v. McGuire, 502 U.S.
62, 67-68 (1991). Whether the Michigan Court of Appeals erred in its application of
M.C.R. 7.211 in denying petitioner’s motions for an evidentiary hearing on his
ineffective assistance of counsel claims is a question of state law that cannot be reviewed
in a federal habeas petition. See Hayes v. Prelesnik, 193 F.App’x 577, 584 (6th Cir.
2006). Moreover, there is no clearly established Supreme Court law which recognizes a
constitutional right to a state court evidentiary hearing to develop a claim of ineffective
assistance of counsel on appeal. Id. at 585.
Even if there is a due process component to petitioner’s claims involving the
denial of his motions to remand by the Michigan Court of Appeals, deprivation of this
sort would not form the basis for issuing a writ of habeas corpus, but might support a
request for an evidentiary hearing in this Court for the purpose of developing a record on
the petitioner’s ineffective assistance of counsel claims. See May v. Renico, 2002 WL
31748845, *5 (E.D. Mich. November 12, 2002). This Court must determine whether
petitioner is entitled to an evidentiary hearing on his claims.
When deciding whether to grant an evidentiary hearing, a federal court must
consider whether such a hearing could enable the habeas petitioner to prove the
petition’s factual allegations, which, if true, would entitle the petitioner to federal habeas
relief on his claim or claims. Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
“[B]ecause the deferential standards prescribed by § 2254 control whether to grant
habeas relief, a federal court must take into account those standards in deciding whether
an evidentiary hearing is appropriate.” Id. If the record refutes the habeas petitioner’s
factual allegations or otherwise precludes habeas relief, a district court is not required to
hold an evidentiary hearing. Id. Stated differently, a habeas petitioner is not entitled to
an evidentiary hearing on his claims if they lack merit. See Stanford v. Parker, 266 F.3d
442, 459-60 (6th Cir. 2001). A habeas petitioner is also not entitled to an evidentiary
hearing on his claims of ineffective assistance of counsel where the petitioner fails to
allege specific facts which, if true, would entitle him to relief on his claims. See Barber
v. Birkett, 276 F. Supp. 2d 700, 706 (E.D. Mich. 2003)(petitioner was not entitled to an
evidentiary hearing on his claims that he was denied his right to counsel and that his
appellate counsel rendered ineffective assistance, where he did not assert any facts
which, if true, would establish a constitutional error). As will be discussed below,
petitioner’s ineffective assistance of counsel claims are without merit, therefore, he is not
entitled to an evidentiary hearing on these claims.
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. “Strickland’s test for prejudice is a demanding one. ‘The likelihood of a different
result must be substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379
(6th Cir. 2011)(quoting Harrington, 562 U.S. at 112). 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).
More importantly, on habeas review, “the question ‘is not whether a federal court
believes the state court’s determination’ under the Strickland standard ‘was incorrect but
whether that determination was unreasonable-a substantially higher threshold.’” Knowles
v. Mirzayance, 556 U.S. 111, 123 (2009)(quoting Schriro v. Landrigan, 550 U.S. 465,
473 (2007)). “The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from asking whether defense
counsel’s performance fell below Strickland’s standard.” Harrington v. Richter, 562 U.S.
at 101. Indeed, “because the Strickland standard is a general standard, a state court has
even more latitude to reasonably determine that a defendant has not satisfied that
standard.” Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664).
Pursuant to the § 2254(d)(1) standard, a “doubly deferential judicial review” applies to a
Strickland claim brought by a habeas petitioner. Id. This means that on habeas review of
a state court conviction, “[A] state court must be granted a deference and latitude that are
not in operation when the case involves review under the Strickland standard itself.”
Harrington, 562 U.S. at 101. “Surmounting Strickland’s high bar is never an easy task.”
Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
In addition, a reviewing court must not merely give defense counsel the benefit of
the doubt, but must also affirmatively entertain the range of possible reasons that counsel
may have had for proceeding as he or she did. Cullen v. Pinholster, 563 U.S. 170, 196
Petitioner alleges that his trial counsel was ineffective by failing to object to an
improper charge and agreeing to the improper charge at trial.
At the conclusion of the preliminary examination, petitioner was bound over to
circuit court on a charge of first-degree felony murder, as charged in the initial
information. The charge was later amended to include open murder. The Michigan
Court of Appeal’s findings comported with the evidence produced at the preliminary
exam and did not prejudice petitioner:
In this case, the amendment did not involve a new or different crime,
defendant was fully aware of the nature of the charges against him, and the
amendment did not affect defendant’s defense that he was not the shooter.
Moreover, the open murder charge fully comported with the evidence
presented at the preliminary examination, which supported both a felony
murder and a premeditated murder theory, and the amendment was made
months before trial. Thus, because an objection to defendant proceeding to
trial on the open murder charge would not have been successful, Keel did not
render ineffective assistance of counsel by failing to object.
Chenault, 2012 WL 12507825, at *8.
Because petitioner has failed to show that he was prejudiced by the amendment to
the information, petitioner is unable to establish that counsel was ineffective for failing
to challenge the amendment of the information at trial or on direct appeal. See Olden v.
U.S., 224 F.3d 561, 567 (6th Cir. 2000)(counsel’s failure to challenge indictment for
variance was not ineffective assistance of counsel, where defendant did not establish
prejudice from any purported variance). Petitioner’s claim is without merit.
Petitioner alleges that trial counsel failed to request an instruction on “mere
presence.” Trial counsel was not ineffective for failing to request a jury instruction on
mere presence because there was no evidence that petitioner was merely present while
other people committed the crimes. Cross v. Stovall, 238 F.App’x 32, 39 (6th Cir. 2007).
Petitioner claims that the trial court instructed the jury about out-of-court
statements when he did not make any statements to law enforcement. The Michigan
Court of Appeals found that petitioner waived this issue by initially objecting to the
instruction and then agreeing that the instruction was appropriate. The Michigan Court
of Appeals further found that petitioner failed to make an argument or show that the
outcome of his trial would have been different had the instruction not been given.
Chenault, 2012 WL 12507825, at *10.
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 does not allege nor show that counsel was
deficient for agreeing to this instruction or that he was prejudiced by counsel’s failure to
object. Petitioner is not entitled to relief on this claim
Petitioner claims that trial counsel was ineffective by failing to further question a
juror named Nicholas George or for failing to remove Mr. George after the juror
revealed he went to high school with petitioner.
The Michigan Court of Appeals rejected the claim, because Mr. George expressed
his ability to be fair and impartial and nothing from the record indicated “that George
harbored a secret bias against defendant.” People v. Chenault, 2012 WL 12507825, at
To maintain a claim that a biased juror prejudiced him, for purposes of
maintaining an ineffective assistance of counsel claim, a habeas petitioner must show
that the juror was actually biased against him. See Hughes v. United States, 258 F.3d
453, 458 (6th Cir. 2001); see also Miller v. Francis, 269 F.3d 609, 616 (6th Cir.
2001)(when a claim of ineffective assistance of counsel is founded on a claim that
counsel failed to strike a biased juror, the defendant must show that the juror was
actually biased against him).
Petitioner failed to show that he was prejudiced by counsel’s failure to challenge
this juror, in light of the fact that this juror stated that he could be fair and impartial in
deciding petitioner’s case. See Baze v. Parker, 371 F.3d 310, 318-22 (6th Cir. 2004).
Because petitioner failed to show that this juror had an actual bias towards him, he failed
to show that he was prejudiced by counsel’s decision not to strike this juror. Petitioner’s
juror claim is without merit.
Petitioner alleges that trial counsel was ineffective by failing to ask for a
continuance to obtain the video recorded statements of Holloway and Chambers.
Both Holloway and Chambers produced written statements following a videotaped
interview. Both were present to give testimony at the preliminary exam and at
petitioner’s trial. Defense counsel had an opportunity to extensively cross-examine
Holloway and Chambers. This Court will not second guess whether it was counsel’s
trial strategy to not ask for a continuance in connection with the videotaped interviews.
Furthermore, defense counsel’s failure to seek a continuance after discovering that the
statements given by Holloway and Chambers had been recorded did not deprive the
petitioner of the effective assistance of counsel, in light of the fact that counsel attempted
to discredit any harmful evidence and there is no evidence that additional time would
have aided the defense. See Johnson v. Bell, 525 F.3d 466, 487-88 (6th Cir. 2008).
Petitioner alleges that trial counsel failed to challenge and seek suppression of the
out-of-court and in-court identifications of petitioner by the witnesses. Petitioner,
however, does not argue why the identification procedures were unduly suggestive.
Petitioner is not entitled to relief on this claim because it is conclusory and unsupported.
See Workman v. Bell, 178 F.3d at 771.
Petitioner next contends that counsel was ineffective for failing to object to the
prosecutorial misconduct he complains of in his second claim.
To show prejudice under Strickland for failing to object to prosecutorial
misconduct, a habeas petitioner must show that but for the alleged error of his trial
counsel in failing to object, there is a reasonable probability that the proceeding would
have been different. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001). The Michigan
Court of Appeals reasonably denied petitioner’s claim as follows:
[T]he prosecution’s failure to turn over the recordings did not undermine
confidence in the outcome of the trial. Defendant has therefore failed to
establish that there exists a reasonable probability of a different result if Keel
had sought a continuance and obtained the recordings.
People v. Chenault, 2012 WL 12507825, at *11.
Because the Court has already determined that the video recordings were not
material and would not have undermined confidence in the jury’s verdict, petitioner was
not denied a fundamentally fair trial; petitioner cannot establish that he was prejudiced
by counsel’s failure to challenge any prosecutorial misconduct, including the failure to
produce the video recordings. See Slagle v. Bagley, 457 F.3d 501, 528 (6th Cir. 2006).
Petitioner is not entitled to relief on his prosecutorial misconduct claims or his
ineffective assistance of trial counsel claims. Furthermore, petitioner is not entitled to an
evidentiary hearing on these claims because they are meritless.
The Court will deny the petition for a 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 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
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 with respect to his claims. The Court will also deny
petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. See
Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).
“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.
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
s/John Corbett O’Meara
United States District Judge
Date: December 1, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
of record on this date, December 1, 2017, using the ECF system and/or ordinary mail.
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