Greene v. Burt

Filing 19

OPINION and ORDER Denying the 1 Petition for a Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Brian Greene, #345131,
Petitioner,
v.

Case No. 15-cv-13008
Judith E. Levy
United States District Judge

Sherry Burt,
Mag. Judge Anthony P. Patti
Respondent.
________________________________/
OPINION AND ORDER DENYING THE PETITION
FOR A WRIT OF HABEAS CORPUS, DENYING A
CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
This is a pro se habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Brian Greene (“Petitioner”) was convicted of
racketeering, larceny of $1,000 or more but less than $20,000, and
larceny of $20,000 or more following a jury trial with two co-defendants
in the Ogemaw County Circuit Court. He was sentenced as a third
habitual offender to concurrent terms of 10 to 40 years imprisonment, 2
to 10 years imprisonment, and 2 to 20 years imprisonment in 2012. In
his petition, he raises claims concerning the conduct of the prosecutor,

the effectiveness of trial and appellate counsel, the sufficiency of the
evidence, an amendment to the information, the jury instructions, and
the state court’s jurisdiction. For the reasons set forth below, the Court
denies habeas relief. The Court also denies a certificate of appealability
and denies leave to proceed in forma pauperis on appeal.
I.

Facts and Procedural History

Petitioner’s convictions arise from his participation in a series of
larcenies, including the theft of a trailer, tractor supplies, and lawn
equipment with his co-defendants in Ogemaw County, Michigan, in
2010. The Michigan Court of Appeals described the underlying facts as
follows:
Defendant was tried along with co-defendants David Ritchie
and Fabian Loonsfoot. Defendant, Ritchie, Loonsfoot and
Ritchie's girlfriend, Misr Abdur–Rahim, were members of a
group that robbed businesses of their equipment. Abdur–
Rahim accepted a plea deal and agreed to testify against her
co-defendants. Abdur–Rahim testified that defendant would
come to where she lived with Ritchie and she would hear the
two “talk about places that they could hit larcenies at,” and
that she was with defendant and Ritchie on several occasions
when equipment was stolen. The larcenies happened the same
way with the same individuals: “They would take a trailer
hooked onto a truck, go to the place where they planned on
committing their larcenies, fill the trailer up and go.” Abdur–
Rahim acted as a lookout and observed defendant and the
2

others load “tractor supply stuff” and “lawn equipment” into
the trailers. Both the stolen trailer and the stolen equipment
were found at Abdur–Rahim and Ritchie's home.
Defendant was convicted and sentenced as outlined above.
People v. Greene, No. 308448, 2013 WL 951294, at *1 (Mich. Ct. App.
Feb. 21, 2013) (unpublished) (footnote omitted).
Following his convictions and sentencing, Petitioner filed an
appeal of right with the Michigan Court of Appeals raising claims
concerning (1) the use of the crime of larceny as the basis for his
racketeering conviction and (2) the conduct of the prosecutor. The court
denied relief on those claims and affirmed Petitioner’s convictions. Id.
at *1-3.

Petitioner filed an application for leave to appeal with the

Michigan Supreme Court, which was denied in a standard order.
People v. Greene, 494 Mich. 871 (2013).
Petitioner returned to the state trial court and filed a motion for
relief from judgment, asserting that appellate counsel was ineffective
for failing to raise claims concerning the jury instructions, the
sufficiency of the evidence, the conduct of the prosecutor, the
effectiveness of trial counsel, and a jurisdictional defect. The trial court
denied relief, stating that Petitioner was attempting to raise the same
3

or similar issues as raised on direct appeal. People v. Greene, Nos. 113674-FH, 11-3679-FH (Ogemaw Cty. Cir. Ct. May 2, 2014). Petitioner
filed a delayed application for leave to appeal with the Michigan Court
of Appeals, which was denied “for failure to meet the burden of
establishing entitlement to relief under MCR 6.508(D).”

People v.

Greene, No. 322381 (Mich. Ct. App. Sept. 19, 2014). Petitioner filed an
application for leave to appeal which the Michigan Supreme Court,
which was similarly denied. People v. Greene, 498 Mich. 851 (2015).
Petitioner then filed this federal habeas petition. He raises the
following claims:
I.

The prosecution vouched for the credibility of the single
witness against him, whose testimony was not permitted
due to the fruit of the poisonous tree doctrine, creating a
radical jurisdictional defect and voiding any process
against him in these matters.

II.

Ineffective assistance of appellate counsel for abandoning
review of the sufficiency of the elements of the
accusations
for
larceny
and
criminal
enterprise/racketeering counts, as well as the other
issues not raised on direct appeal.

III.

The elements of larceny between $1,000 and $20,000 and
criminal enterprise were never proven beyond a
reasonable doubt.
4

IV.

Ineffective assistance of counsel for failure to object to an
information that was amended to include offenses never
established under probable cause to be bound over.
Counsel also did not object to speculative testimony
during trial, nor to testimony of a witness being coerced
by the police by threat of having her child taken away
from her.

V.

The prosecution amended the information to include two
receiving and concealing offenses without a bindover or a
motion for similar acts, and then submitted an
inadmissible allegation during trial, thereby prejudicing
him.

VI. Improper jury instructions violated due process.
VII. There were jurisdictional defects.
Respondent has filed an answer to the petition, contending that it
should be denied because the claims are procedurally defaulted and/or
lack merit. (Dkt. 13.) Petitioner has filed a reply to that answer. (Dkt.
15.)
II.

Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard
of review that federal courts must use when considering habeas

5

petitions brought by prisoners challenging their state court convictions.
The AEDPA provides in relevant part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of
the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. §2254(d) (1996).
“A state court’s decision is ‘contrary to’ . . . clearly established law
if it ‘applies a rule that contradicts the governing law set forth in
[Supreme Court cases]’ or if it ‘confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from [that] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone,
535 U.S. 685, 694 (2002).
6

“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a
federal habeas court to ‘grant the writ if the state court identifies the
correct governing legal principle from [the Supreme] Court but
unreasonably applies that principle to the facts of petitioner’s case.”
Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S.
at 413); see also Bell, 535 U.S. at 694.

However, “[i]n order for a

federal court to find a state court’s application of [Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been
more than incorrect or erroneous. The state court’s application must
have been ‘objectively unreasonable.’”

Wiggins, 539 U.S. at 520-21

(citations omitted); see also Williams, 529 U.S. at 409. “AEDPA thus
imposes a ‘highly deferential standard for evaluating state-court
rulings,’ and ‘demands that state-court decisions be given the benefit of
the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh,
521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
curiam)).
The Supreme Court has held that “a state court’s determination
that a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the state
7

court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

The Supreme

Court has emphasized “that even a strong case for relief does not mean
the state court’s contrary conclusion was unreasonable.”

Id. (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). A habeas court “must
determine what arguments or theories supported or . . . could have
supported, the state court’s decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision” of the
Supreme Court. Id. Thus, in order to obtain federal habeas relief, a
state prisoner must show that the state court’s rejection of a claim “was
so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Id.; see also White v. Woodall, _ U.S. _, 134 S. Ct. 1697,
1702 (2014). Federal judges “are required to afford state courts due
respect by overturning their decisions only when there could be no
reasonable dispute that they were wrong.” Woods v. Donald, _ U.S. _,
135 S. Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as
long as it is within the “realm of possibility” that fairminded jurists
8

could find the state court decision to be reasonable. Woods v. Etherton,
_ U.S. _, 136 S. Ct. 1149, 1152 (2016).
Section

2254(d)(1)

limits

a

federal

court’s

review

to

a

determination of whether the state court’s decision comports with
clearly established federal law as determined by the Supreme Court at
the time the state court renders its decision. Williams, 529 U.S. at 412;
see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that
the Supreme Court “has held on numerous occasions that it is not ‘an
unreasonable application of clearly established Federal law’ for a state
court to decline to apply a specific legal rule that has not been squarely
established by this Court”) (quoting Wright v. Van Patten, 552 U.S.
120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at 71-72. Section
2254(d) “does not require a state court to give reasons before its
decision can be deemed to have been ‘adjudicated on the merits.’”
Harrington, 562 U.S. at 100. Furthermore, it “does not require citation
of [Supreme Court] cases–indeed, it does not even require awareness of
[Supreme Court] cases, so long as neither the reasoning nor the result
of the state-court decision contradicts them.” Early v. Packer, 537 U.S.
3, 8 (2002); see also Mitchell, 540 U.S. at 16.
9

The requirements of “clearly established law” are to be determined
solely by Supreme Court precedent. Thus, “circuit precedent does not
constitute ‘clearly established Federal law, as determined by the
Supreme Court,’” and “[i]t therefore cannot form the basis for habeas
relief under AEDPA.” Parker v. Matthews, 567 U.S. 37, 48-49 (2012)
(per curiam); see also Lopez v. Smith, _ U.S. _, 135 S. Ct. 1, 2 (2014)
(per curiam). The decisions of lower federal courts may be useful in
assessing the reasonableness of the state court’s decision. Stewart v.
Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox,
340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 2d
354, 359 (E.D. Mich. 2002).
A state court’s factual determinations are presumed correct on
federal habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut
this presumption with clear and convincing evidence. Warren v. Smith,
161 F.3d 358, 360-61 (6th Cir. 1998). Habeas review is also “limited to
the record that was before the state court.” Cullen v. Pinholster, 563
U.S. 170, 181 (2011).
III. Discussion
A. Procedural Default
10

Respondent contends that several of Petitioner’s habeas claims
are barred by procedural default. Federal courts on habeas review “are
not required to address a procedural-default issue before deciding
against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212,
215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525
(1997)). The Supreme Court has explained the rationale behind such a
policy:

“Judicial economy might counsel giving the [other] question

priority, for example, if it were easily resolvable against the habeas
petitioner, whereas the procedural-bar issue involved complicated
issues of state law.”

Lambrix, 520 U.S. at 525.

In this case, the

procedural default issues are complicated and intertwined with the
substantive issues, and the substantive issues are more easily resolved.
Consequently, the interests of judicial economy are best served by
addressing the merits of Petitioner’s habeas claims.
B. Merits
1. Prosecutorial Misconduct Claims
Petitioner first asserts that he is entitled to habeas relief because
the prosecutor engaged in misconduct by vouching for witness Misr

11

Abdur-Rahim during the rebuttal portion of his of closing arguments.
Petitioner objects to the following remarks:
Again, keep your eyes on the big picture. And defense
attorneys are saying, well, all you have is Misr's statement
putting the defendants at the scene of the crime. But ladies
and gentlemen, not only do you have Misr's statements but
you have independent facts that are backing up what she was
saying. She said they scouted. We have pictures to prove that
she was scouting. She said that they used keys.
Well, they found keys. She said that we were driving three
vehicles. She has got pictures of three vehicles. So look at the
totality of her testimony and weigh it. You know, if there is
independent corroboration for the main factors of what she is
saying. If she is telling you the truth about that, can she be
telling the truth on everything else. I would submit that she
is.
Trial Tr., p. 779.
The Supreme Court has made clear that prosecutors must “refrain
from improper methods calculated to produce a wrongful conviction.”
Berger v. United States, 295 U.S. 78, 88 (1935).

To prevail on a

prosecutorial misconduct claim, a habeas petitioner must show that the
prosecutor’s conduct or remarks “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” Donnelly
v. DeChristoforo, 416 U.S. 637, 643 (1974); see also Darden v.
12

Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly); Parker v.
Matthews, 567 U.S. 37, 45 (2012) (confirming that Donnelly/Darden is
the proper standard).
It is improper for a prosecutor to express his or her own personal
opinions as to a witness’s credibility. United States v. Young, 470 U.S.
1, 9-10 (1985); Hodge v. Hurley, 426 F.3d 368, 378 (6th Cir. 2005).
Such statements are improper because they can convey the impression
that the prosecutor has evidence not presented to the jury that
supports the charges against the defendant, and because the
prosecutor’s opinion may induce the jury to trust the government’s
judgment rather than its own. Young, 470 U.S. at 18-19; Cristini v.
McKee, 526 F.3d 888, 901 (6th Cir. 2008).

13

The Michigan Court of Appeals considered this claim on direct
appeal and denied relief after reviewing the trial court’s determination
for plain error. The court found that the prosecutor’s argument was
based on the evidence presented at trial, and ruled that it was a fair
response to defense counsel’s challenge to the witness’s credibility. The
court also noted that the trial court’s jury instructions cured any
possible prejudice, and that the remarks did not affect the fairness of
the trial. Greene, 2013 WL 951294 at *1-2.
The state-court decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts.
The prosecutor’s remarks about Abdur-Rahim’s credibility were proper
because her credibility was attacked by the defense at trial. Moreover,
the prosecutor argued that Abdur-Rahim’s testimony was corroborated
and supported by the other evidence at trial. A prosecutor may argue
reasonable inferences from the evidence, United States v. Crosgrove,
637 F.3d 646, 664 (6th Cir. 2011); Byrd v. Collins, 209 F.3d 486, 535
(6th Cir. 2000), and may argue from the facts that a witness is or is not
worthy of belief. Portuondo v. Agard, 529 U.S. 61, 69 (2000). The
prosecutor’s remarks were appropriate in this case.
14

To the extent that the prosecutor’s remarks could be seen as
improper, they were not so pervasive or misleading as to affect the
fairness of the trial.

Any potential prejudice to Petitioner was

mitigated by the fact that the trial court properly instructed the jurors
on the law, explained that the attorneys’ comments were not evidence,
and directed them not to let sympathy or prejudice influence their
decision. See Knapp v. White, 296 F. Supp. 2d 766, 776 (E.D. Mich.
2003).

Jurors are presumed to follow the court’s instructions.

See

Penry v. Johnson, 532 U.S. 782, 799 (2001) (citing Richardson v.
Marsh, 481 U.S. 200, 211 (1987)); United States v. Powell, 469 U.S. 57,
66 (1984) (“Jurors ... take an oath to follow the law as charged, and
they are expected to follow it.”).
prosecutor

engaged

in

Petitioner fails to establish the

misconduct

that

rendered

his

trial

fundamentally unfair.
Petitioner

also

asserts

that

the

prosecutor

and/or

police

improperly coerced Abdur-Rahim into testifying against him by
threatening her with the loss of her child.

The trial court was

presented with this claim on collateral review and denied relief finding
that it was the same as or similar to claims raised on direct appeal.
15

Greene, Ogemaw Co. Cir. Ct. Nos. 11-3674, 11-3678 at *2.

The

Michigan appellate courts denied relief pursuant to Michigan Court
Rule 6.508(D), which sets forth the grounds on which a criminal
defendant may be entitled to post-appellate relief from a conviction or
sentence.
The United States Court of Appeals for the Sixth Circuit has held
that the form order used by the Michigan Supreme Court to deny leave
to appeal in this case is considered unexplained because its citation to
Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a
procedural default or a rejection on the merits. Guilmette v. Howes,
624 F.3d 286, 291-92 (6th Cir. 2010) (en banc). Under Guilmette, this
Court must “look through” the unexplained order of the Michigan
appellate courts to the lower court’s decision to determine the basis for
the denial of state post-conviction relief.
In this case, as Respondent concedes, the lower court simply (and
erroneously) stated that the collateral review claims were the same as
or similar to those raised on direct appeal. Therefore, this claim was
not addressed on the merits by the state courts. The Court reviews the
claim de novo. See Torres v. Bauman, 677 F. App’x 300, 302 (6th Cir.
16

2017) (ruling that the district court erred in applying a deferential
standard of review to a habeas claim that was not addressed on the
merits by the state courts).1

The Court would reach the same result on this claim under a deferential standard
of review, as well as the other claims that were first raised on collateral review and
are addressed below.
1

17

Assuming that Petitioner states a due process claim on habeas
review, he is not entitled to relief. The record does not support his
claim of improper witness coercion. Rather, it reveals that the police
allowed Abdur-Rahim to call her mother to pick up her child before she
cooperated with them, informed her that they could contact DHS but
were not going to do so, and told her that she was not under arrest,
would not have to go to jail, and could leave after the interview. See
Trial Tr., pp. 534-36. This conduct was not coercive.2
Additionally,

informing

a

witness

about

the

potential

consequences of cooperating or not cooperating with the authorities,
without more, does not constitute coercion.

See generally Brady v.

United States, 397 U.S. 742, 750-51 (1970); McKinney v. Ludwick, 649
F.3d 484, 491-92 (6th Cir. 2011) (citing cases for rule that informing a

Also, because Supreme Court precedent controls, see 28 U.S.C. § 2254(d)(1),
Petitioner fails to state a claim upon which habeas relief may be granted as to this
issue. While the Sixth Circuit has indicated that the use of a witness’s coerced
testimony may violate a defendant’s rights under the Due Process Clause of the
Fourteenth Amendment, see Bradford v. Johnson, 476 F.2d 66 (6th Cir. 1973), the
Supreme Court has never reached this same conclusion. See Samuel v. Frank, 526
F.3d 566, 569 (7th Cir. 2008); see also Johnson v. Bell, 525 F.3d 466, 479-81 (6th
Cir. 2008) (distinguishing Webb v. Texas, 409 U.S. 95 (1972), and Washington v.
Texas, 388 U.S. 14 (1967), and denying relief on claim that authorities coerced a
witness into providing favorable prosecution testimony).
2

suspect about legal consequences of crime and cooperation benefits is
not inherently coercive so as to render police statements involuntary).
Finally, the record shows that the circumstances of AbdurRahim’s police statement and her plea deal were disclosed at trial, see
Trial Tr., pp. 431-33, 465, 534-36, which allowed the jury to consider
her motivation for cooperating with the authorities and to evaluate her
credibility.

Accordingly, Petitioner fails to establish a due process

violation and habeas relief is not warranted on this claim.

2. Ineffective

Assistance

of

Appellate

Counsel

Claim
Petitioner also asserts that he is entitled to habeas relief because
appellate counsel was ineffective for failing to raise several claims on
direct appeal.

The trial court was presented with this claim on

collateral review and denied relief finding that it was the same as or
similar to claims he raised on direct appeal. Greene, Ogemaw Co. Cir.
Ct. Nos. 11-3674, 11-3678, at *2. The Michigan appellate courts denied
relief pursuant to Michigan Court Rule 6.508(D). As set forth above,

19

this claim was not considered on the merits. The Court reviews the
claim de novo. See Torres, 677 F. App’x at 302.
The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the right to the effective assistance of
counsel at trial and on direct appeal. In Strickland v. Washington, 466
U.S. 668 (1984), the Supreme Court set forth a two-prong test for
determining whether counsel was ineffective. First, a petitioner must
prove that counsel’s performance was deficient.

This requires a

showing that counsel made errors so serious that he or she was not
functioning as counsel as guaranteed by the Sixth Amendment.
Strickland, 466 U.S. at 687. Second, the petitioner must establish that
counsel’s deficient performance prejudiced the defense.

Counsel’s

errors must have been so serious that they deprived the petitioner of a
fair trial or appeal. Id.
With regard to appellate counsel, it is well-established that a
criminal defendant does not have a constitutional right to have
appellate counsel raise every non-frivolous issue on appeal. Jones v.
Barnes, 463 U.S. 745, 751 (1983). The Supreme Court has explained:
For judges to second-guess reasonable professional judgments
and impose on appointed counsel a duty to raise every
20

“colorable” claim suggested by a client would disserve the . . .
goal of vigorous and effective advocacy . . . . Nothing in the
Constitution or our interpretation of that document requires
such a standard.
Id. at 754. Strategic and tactical choices regarding which issues to
pursue on appeal are “properly left to the sound professional judgment
of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990).
“[T]he hallmark of effective appellate advocacy” is the “process of
‘winnowing out weaker arguments on appeal and focusing on’ those
more likely to prevail.” Smith v. Murray, 477 U.S. 527, 536 (1986)
(quoting Barnes, 463 U.S. at 751-52). “Generally, only when ignored
issues are clearly stronger than those presented will the presumption
of effective assistance of appellate counsel be overcome.”

Monzo v.

Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate counsel may
deliver deficient performance and prejudice a defendant by omitting
issues that were obvious from the trial record and would have resulted
in reversal on appeal. Meade v. Lavigne, 265 F. Supp. 2d 849, 870
(E.D. Mich. 2003).
Petitioner fails to show that appellate counsel’s performance fell
outside the wide range of professionally competent assistance.
21

Appellate counsel raised significant prosecutorial misconduct claims on
direct appeal, including a challenge to the testimony of the main
prosecution witness. None of the other claims subsequently raised by
Petitioner on collateral review are clearly stronger than those
presented, as evidenced by this Court’s denial of relief (and the state
courts’ denial of relief) on those claims. Nor has Petitioner shown that
appellate counsel failed to subject his case to meaningful adversarial
testing.

Further, even if appellate counsel erred in some fashion,

Petitioner cannot show that he was prejudiced by counsel’s conduct
given that the underlying claims lack merit.

Habeas relief is not

warranted on this claim.
3. Insufficient Evidence Claims
Petitioner next asserts that he is entitled to habeas relief because
the prosecution presented insufficient evidence to support his
convictions for larceny between $1,000 and $20,000 (the trailer theft)
and for racketeering. The trial court was presented with these claims
on collateral review and denied relief, finding that they were the same
as or similar to claims raised on direct appeal. Greene, Ogemaw Co.
Cir. Ct. Nos. 11-3674, 11-3678 at *2. The Michigan appellate courts
22

denied relief pursuant to Michigan Court Rule 6.508(D). As set forth
above, that review was not on the merits.

The Court reviews the

claims de novo. See Torres, 677 F. App’x at 302.
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). The question on a sufficiency of the evidence claim 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.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). The Jackson standard must be applied “with
explicit reference to the substantive elements of the criminal offense as
defined by state law.” Brown v. Palmer, 441 F.3d 347, 351 (6th Cir.
2006) (quoting Jackson, 443 U.S. at 324 n.16).
Additionally, “it is the responsibility of the jury – not the court –
to decide what conclusions should be drawn from the evidence
admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam).
“A reviewing court does not re-weigh the evidence or re-determine the
credibility of the witnesses whose demeanor has been observed by the
23

trial court.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003)
(citing Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). The “mere
existence of sufficient evidence to convict . . . defeats a petitioner’s
claim.” Matthews, 319 F.3d at 788-89.
Under Michigan law, larceny of property valued at $1,000 or more
but less than $20,000 requires proof that the defendant stole property,
such as money, goods, or chattels, valued at $1,000 or more but less
than $20,000. Mich. Comp. Laws § 750.356(3)(a). In order to prove the
charge of racketeering, the prosecutor had to prove, in relevant part,
that Petitioner was “associated” with an “enterprise” and that he
“knowingly” participated “in the affairs of the enterprise directly or
indirectly through a pattern of racketeering activity.”

Mich. Comp.

Laws § 750.159i(1); People v. Martin, 271 Mich. App. 280, 320 (2006).
A pattern of racketeering activity means “the commission of not less
than two incidents of racketeering,” which involve “‘the same or a
substantially similar purpose, result, participant, victim, or method of
commission,

or

are

otherwise

interrelated

by

distinguishing

characteristics and are not isolated acts, pose a threat of continued
criminal activity,’ and fall within certain time constraints . . . .”
24

Martin, 271 Mich. App. at 289-90 (quoting Mich. Comp. Laws §
750.159f(c)).
The prosecutor also had to prove that Petitioner committed the
underlying racketeering offenses for financial gain. Id. at 290 (citing
Mich. Comp. Laws § 750.159g). Under Michigan law, when “several
persons are engaged in one common unlawful enterprise, whatever is
said or done by any one of them in the prosecution of the common
enterprise, or while it is still in progress, is evidence against all the
parties to it.”

People v. Beller, 294 Mich. 464, 468 (1940) (quoting

People v. Pitcher, 15 Mich. 397, 403-04 (1867)).
To convict a defendant under an aiding and abetting theory, the
prosecution must establish that the crime was committed by the
defendant or some other person, that the defendant performed acts or
gave encouragement that aided or assisted in the commission of the
crime, and that the defendant either intended to commit the crime or
knew that the principal intended to commit the crime at the time he or
she gave the aid or encouragement.

Carines, 460 Mich. at 757-58;

People v. Moore, 470 Mich. 56 (2004); Mich. Comp. Laws § 767.39. An
aider and abettor's state of mind may be inferred from all the facts and
25

circumstances, including a close association between the defendant and
the principal, the defendant’s participation in the planning or
execution of the crime, and evidence of flight after the crime. Carines,
460 Mich. at 757-58.
The prosecution must prove every element of a charged offense
beyond a reasonable doubt.

This burden includes proving that the

defendant is the person who committed the crime. People v. Oliphant,
399 Mich. 472, 489 (1976); People v. Kern, 6 Mich. App. 406, 409 (1967).
Direct or circumstantial evidence and reasonable inferences arising
from that evidence may constitute satisfactory proof of the elements of
an offense. People v. Nowack, 462 Mich. 392, 399-400 (2000); People v.
Jolly, 442 Mich. 458, 466 (1993). This includes establishing identity,
Kern, 6 Mich. App. at 409-10, and intent or state of mind. People v.
Dumas, 454 Mich. 390, 398 (1997); see also Nowack, 462 Mich. at 40203.
In this case, the prosecution presented sufficient evidence to
support Petitioner’s convictions. For larceny of the trailer, the trial
testimony showed that a white trailer was stolen from the West Branch
NAPA Truck and Trailer late in the evening of August 22, 2010, or
26

during the early morning hours of August 23, 2010. See Trial Tr., pp.
300-20. The trailer was then observed as part of a caravan of vehicles
on a gas station surveillance video and used during the larceny at
Willard’s Equipment Company in Ogemaw County that same day. See
Trial Tr., pp. 347-48, 404-12. The trailer was found on August 24,
2010, during a search of co-defendant Ritchie’s residence in Taylor,
Michigan, with stolen equipment from Willard’s still inside the trailer.
See Trial Tr., pp. 279-81, 308, 507-10, 608. Co-defendant Misr AbdurRahim testified that she and co-defendant Ritchie scouted the Willard’s
location and a place that sold trailers two weeks earlier, that she was
present during a conversation about the trailer theft with Petitioner,
co-defendant Ritchie, and two others, that she and those same
individuals traveled from Taylor, Michigan to Ogemaw County in
several vehicles to commit the larcenies, and that she participated (as a
lookout) in the larceny at Willard’s with Petitioner, co-defendant
Ritchie, and the other two men. See Trial Tr., pp. 365-69, 371-72, 38081, 395-98, 404-13.
Such testimony, and reasonable inferences drawn from it,
provided sufficient evidence of Petitioner’s guilt of the trailer larceny
27

as an aider and abettor because it shows that he knew that one or more
of his co-defendants intended to steal a trailer, that he was involved in
the planning of the thefts, that he drove to the area where the larcenies
occurred at the same time as the co-defendants, that he knew the
trailer was needed to facilitate the larceny at Willard’s, and that he
directly participated in the larceny at Willard’s with the co-defendants.
On the racketeering charge, the trial testimony showed that
Petitioner was associated with co-defendant Ritchie (and the other codefendants) who had a history and pattern of breaking into businesses
and stealing tractors and other outdoor equipment, see Trial Tr., pp.
366,

381-87,

425-31,

503-04,

536,

that

Petitioner

knowingly

participated in such activities, see Trial Tr., pp. 366, 387, 397-98, 415,
425, that Petitioner was involved in at least two larcenies, the
Willard’s larceny and the trailer larceny, which fit the same pattern of
illegal activity, see discussion supra, and that Petitioner (and his codefendants) did so for financial gain.

See Trial Tr., p. 365.

Such

evidence, and reasonable inferences drawn from it, was sufficient to
establish that Petitioner engaged in the crime of racketeering.

28

Petitioner challenges the inferences the jury drew from the
testimony presented at trial. However, it is the job of the fact-finder at
trial, not a federal habeas court, to resolve evidentiary conflicts.
Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618 (6th
Cir. 2002); Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A
federal habeas corpus court faced with a record of historical facts that
supports conflicting inferences must presume – even if it does not
affirmatively appear in the record – that the trier of fact resolved any
such conflicts in favor of the prosecution, and must defer to that
resolution.”).

The jury’s verdict was reasonable.

The evidence

presented at trial, viewed in a light favorable to the prosecution,
established Petitioner’s guilt of the trailer larceny and racketeering
beyond a reasonable doubt. Habeas relief is not warranted on these
claims.

4. Ineffective Assistance of Trial Counsel Claims
Petitioner also asserts that he is entitled to habeas relief because
trial counsel was ineffective for failing to object to an amendment to
29

the information, for failing to object to speculative testimony at trial,
and for failing to object to the testimony of a witness who was allegedly
coerced by the police. The trial court was presented with these claims
on collateral review and denied relief, finding that they were the same
as or similar to claims raised on direct appeal. Greene, Ogemaw Co.
Cir. Ct. Nos. 11-3674, 11-3678 at *2. The Michigan appellate courts
denied relief pursuant to Michigan Court Rule 6.508(D). As set forth
above, this claim was not considered on the merits. The Court reviews
the claims de novo. See Torres, 677 F. App’x at 302.
The Sixth Amendment guarantees a criminal defendant the right
to the effective assistance of counsel. In Strickland v. Washington, 466
U.S. 668 (1984), the Supreme Court set forth a two-prong test for
determining

whether

assistance of counsel.

a

habeas

petitioner

received

ineffective

First, a petitioner must prove that counsel’s

performance was deficient. This requires a showing that counsel made
errors so serious that he or she was not functioning as counsel as
guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687.
Second,

the

petitioner

must

establish

30

that

counsel’s

deficient

performance prejudiced the defense. Counsel’s errors must have been
so serious that they deprived the petitioner of a fair trial or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts
that were “outside the wide range of professionally competent
assistance.” Id. at 690. The reviewing court’s scrutiny of counsel’s
performance is highly deferential.

Id. at 689.

There is a strong

presumption that trial counsel rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional
judgment. Id. at 690. The petitioner bears the burden of overcoming
the presumption that the challenged actions were sound trial strategy.
As to the prejudice prong, a petitioner must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. A
reasonable probability is one that is sufficient to undermine confidence
in the outcome of the proceeding. Id. “On balance, the benchmark for
judging any claim of ineffectiveness must be whether counsel’s conduct
so undermined the proper functioning of the adversarial process that
the [proceeding] cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.

A federal court’s consideration of
31

ineffective assistance of counsel claims arising from state criminal
proceedings is quite limited on habeas review due to the deference
accorded trial attorneys and, when applicable, to state appellate courts
reviewing their performance. Harrington, 562 U.S. at 105.
Petitioner first asserts that trial counsel was ineffective for failing
to object to the amendment of the information to include two receiving
and concealing offenses in Wayne County.

These charges were for

larcenies that occurred in Houghton and Ontonogan Counties, where
there was no bindover hearing at which the court determined whether
there was sufficient evidence to prosecute Petitioner, or motion for the
admission of evidence of similar acts under Mich. R. Evid. 404(b).
Even assuming that counsel erred by failing to object, however,
Petitioner cannot establish that he was prejudiced by counsel’s
conduct.

As discussed above, Petitioner was not convicted of those

charges given that the trial court granted Petitioner’s motion for a
directed verdict on those offenses, see Trial Tr., pp. 697-705, and the
trial court instructed the jurors not to consider those incidents in
assessing Petitioner’s guilt.

See Trial Tr., pp. 723-34.

Jurors are

presumed to follow the court’s instructions. See Penry, 532 U.S. at 799
32

(citing Richardson, 481 U.S. at 211); Powell, 469 U.S. at 66. Petitioner
thus cannot establish that trial counsel was ineffective under the
Strickland standard.
Petitioner also asserts that trial counsel was ineffective for failing
to object to “speculative” testimony, presumably the similar or other
acts evidence, presented at trial. The similar or other acts evidence,
however, was relevant and admissible for the racketeering charges
against Petitioner and/or his co-defendants. Counsel cannot be deemed
deficient for failing to make an argument that lacks merit or would
have been futile. See Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2014)
(“Omitting meritless arguments is neither professionally unreasonable
nor prejudicial.”); United States v. Steverson, 230 F.3d 221, 225 (6th
Cir. 2000). Moreover, to the extent the similar acts evidence concerned
the larcenies in Houghton and Ontonagon Counties, Petitioner cannot
establish that he was prejudiced by counsel in failing to object because
the trial court instructed the jury not to consider those incidents in
assessing Petitioner’s guilt.
Finally, Petitioner asserts that trial counsel was ineffective for
failing to object to the testimony of Misr Abdur-Rahim whom he asserts
33

was coerced by the police.

Given that the record does not support

Petitioner’s assertion that Abdur-Rahim was improperly coerced, and
given this Court’s ruling that the prosecutorial misconduct claim
alleging witness coercion lacks merit, Petitioner cannot establish that
trial counsel erred and/or that he was prejudiced by counsel’s conduct
in this regard. As noted, counsel cannot be deemed deficient for failing
to make a meritless or futile objection.
Steverson, 230 F.3d at 225.

Coley, 706 F.3d at 752;

Petitioner fails to establish that trial

counsel was ineffective under the Strickland standard. Habeas relief is
not warranted on these claims.
5. Bindover/Amendment/Evidentiary Claim
Petitioner also asserts that he is entitled to habeas relief because
the prosecution amended the information to include two receiving and
concealing offenses in Wayne County for larcenies that occurred in
Houghton and Ontonogan Counties, without a bindover or a motion for
the admission of evidence of similar acts, resulting in the admission of
otherwise inadmissible allegations at trial.

The trial court was

presented with this claim on collateral review and denied relief finding
that it was the same as or similar to claims raised on direct appeal.
34

Greene, Ogemaw Co. Cir. Ct. Nos. 11-3674, 11-3678 at *2.

The

Michigan appellate courts denied relief pursuant to Michigan Court
Rule 6.508(D). As set forth above, that review was not on the merits.
The Court reviews the claim de novo. See Torres, 677 F. App’x at 302.
This claim lacks merit. First, to the extent Petitioner complains
about the lack of a bindover, he fails to state a claim upon which
habeas relief may be granted. The Supreme Court has held that the
federal Constitution does not require that a probable cause hearing (or
bindover hearing) be conducted prior to a criminal trial. Gerstein v.
Pugh, 420 U.S. 103, 119, 125 n. 26 (1975). The bindover decision is a
state law issue that does not implicate a federal constitutional right
and is not subject to review in a federal habeas proceeding. See Shacks
v. Tessmer, 9 Fed. Appx. 344, 351 (6th Cir. 2001) (refusing to review
state court determination that second-degree murder conviction
rendered bindover sufficiency of the evidence challenge moot); Dorchy
v. Jones, 320 F. Supp. 2d 564, 578-79 (E.D. Mich. 2004) (denying
habeas relief on state prisoner’s claim that there was insufficient
evidence to bind him over for trial).

35

Second, with respect to the amendment to the information,
prosecutors have significant discretion in determining what charges to
file against an accused provided that probable cause exists to believe
that an offense was committed by the accused under the charging
statute.

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); United

States v. Davis, 15 F.3d 526, 529 (6th Cir. 1994).

The Sixth

Amendment guarantees a criminal defendant the right to be informed
of the nature of the accusations against him. Cole v. Arkansas, 333
U.S. 196, 201 (1948); In Re Oliver, 333 U.S. 257, 273 (1948); Lucas v.
O'Dea, 179 F. 3d 412, 417 (6th Cir. 1999). Due process requires 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 defect in a state-court information or indictment does not
violate Constitutional rights unless a petitioner can establish that: (1)
he or she did not receive adequate notice of the charges; and that (2) he
or she was therefore denied the opportunity to defend against the
charges. Roe v. Baker, 316 F.3d 557, 570 (6th Cir. 2002); Sharrar v.
Foltz, 658 F. Supp. 862, 866-67 (E.D. Mich. 1987). Petitioner makes no
36

such showing.

The record indicates that he was aware of the two

receiving and concealing offenses in Wayne County for larcenies that
occurred in Houghton and Ontonogan Counties in advance of trial and
was able to defend against those charges. To be sure, the trial court
granted Petitioner’s directed verdict motion and did not submit the
charges to the jury.

See Trial Tr., pp. 697-705.

Petitioner fails to

establish a due process violation.
Even if an error occurred in the charging process, any such error
was harmless given that the trial court granted a directed verdict in
Petitioner’s favor. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(For purposes of federal habeas review, a constitutional error that
implicates trial procedures is considered harmless if it did not have a
“substantial and injurious effect or influence in determining the jury's
verdict.”); see also Fry v. Pliler, 551 U.S. 112, 117-18 (2007) (confirming
that the Brecht standard applies in “virtually all” habeas cases); Ruelas
v. Wolfenbarger, 580 F.3d 403, 411 (6th Cir. 2009) (ruling that Brecht is
“always the test” in the Sixth Circuit).
Third, Petitioner fails to show that the admission of the facts
underlying the charges violated his federal due process rights. Alleged
37

trial court errors in the application of state evidentiary law are
generally not cognizable as grounds for federal habeas relief.

See

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“it is not the province of
a federal habeas court to reexamine state-court determinations on
state-law questions”); Serra v. Mich. Dep't of Corr., 4 F.3d 1348, 1354
(6th Cir. 1993).

“Trial court errors in state procedure or evidentiary

law do not rise to the level of federal constitutional claims warranting
relief in a habeas action, unless the error renders the proceeding so
fundamentally unfair as to deprive the petitioner of due process under
the Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th
Cir. 2004) (quoting Estelle, 502 U.S. at 69-70); see also Wynne v. Renico,
606 F.3d 867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514,
519-20 (6th Cir. 2007)).
The Supreme Court has declined to hold that similar “other acts”
evidence is so extremely unfair that its admission violates fundamental
conceptions of justice. Dowling v. United States, 493 U.S. 342, 352-53
(1990). Thus, “[t]here is no clearly established Supreme Court
precedent which holds that a state violates due process by permitting
propensity evidence in the form of other bad acts evidence.” Bugh v.
38

Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Petitioner fails to state a
claim upon which habeas relief may be granted on this issue.
Further, even if Petitioner states a cognizable claim, he is not
entitled to relief. He fails to show that the admission of the evidence
relating to the two receiving and concealing offenses in Wayne County
for larcenies that occurred in Houghton and Ontonogan Counties
rendered his trial fundamentally unfair. The evidence was relevant
and admissible to the charges against his co-defendants, and provided
additional information relevant to the conspiracy to commit the
larcenies. Petitioner also fails to establish that he was prejudiced by
the admission of this evidence. The record shows that the trial court
granted Petitioner’s directed verdict motion as to those offenses, see
Trial Tr., pp. 697-705, and instructed the jurors not to consider those
incidents in assessing Petitioner’s guilt. See Trial Tr., pp. 723-34. As
set forth above, jurors are presumed to follow the court’s instructions.
See Penry, 532 U.S. at 799 (citing Richardson, 481 U.S. at 211); Powell,
469 U.S. at 66. Petitioner fails to establish that he was prejudiced by
the admission of this evidence or that he was otherwise denied a

39

fundamentally fair trial, and habeas relief is not warranted on this
claim.
6. Jury Instruction Claim
Petitioner next asserts that he is entitled to habeas relief because
the trial court failed to properly instruct the jury on the financial gain
element of the racketeering charge. The trial court was presented with
this claim on collateral review and denied relief finding that it was the
same as or similar to claims raised on direct appeal. Greene, Ogemaw
Co. Cir. Ct. Nos. 11-3674, 11-3678 at *2.

The Michigan appellate

courts denied relief pursuant to Michigan Court Rule 6.508(D). As set
forth above, that review was not on the merits. The Court reviews the
claim de novo. See Torres, 677 F. App’x at 302.
In order for habeas relief to be warranted on the basis of incorrect
jury instructions, a petitioner must show more than that the
instructions are undesirable, erroneous, or universally condemned.
Rather, taken as a whole, they must be so infirm that they rendered
the entire trial fundamentally unfair.

Estelle, 502 U.S. at 72;

Henderson v. Kibbe, 431 U.S. 145, 154 (1977). A jury instruction is not
to be judged in artificial isolation, but must be considered in the
40

context of the instructions as a whole and the trial record. Jones v.
United States, 527 U.S. 373, 391 (1999); Grant v. Rivers, 920 F. Supp.
769, 784 (E.D. Mich. 1996). The failure to give an instruction that is
supported by the evidence does not automatically justify habeas relief.
The failure to instruct must have rendered the trial fundamentally
unfair. Cupp v. Naughten, 414 U.S. 141, 147 (1973); Daniels v. Lafler,
501 F.3d 735, 741 (6th Cir. 2007).

“An omission, or an incomplete

instruction, is less likely to be prejudicial than a misstatement of the
law.” Henderson, 431 U.S. at 155. State law instructional errors rarely
form the basis for federal habeas relief. Estelle, 502 U.S. at 71-72.
In this case, Petitioner’s claim that the jury instructions violated
his due process rights is belied by the record at trial. The record shows
that the trial judge repeated the language of the racketeering statute,
including the financial gain requirement, in instructing the jury on the
racketeering charge. See Trial Tr., p. 808. Second, the record indicates
that the jury was well aware of the financial gain requirement, because
the parties argued that element during closing arguments. See Trial
Tr., pp. 760-61, 764, 766, 780. Petitioner fails to establish that the jury
instructions, considered as a whole and in light of the trial court
41

record, rendered his trial fundamentally unfair. Habeas relief is not
warranted on this claim.
7. Jurisdiction Claim
Finally, Petitioner asserts that he is entitled to habeas relief due
to a state jurisdictional defect.

In particular, he alleges that the

larceny for more than $1,000 but less than $20,000 (the trailer theft)
was dismissed before trial and should not have been part of the trial.
The trial court was presented with this claim on collateral review and
denied relief finding that it was the same as or similar to claims raised
on direct appeal. Greene, Ogemaw Co. Cir. Ct. Nos. 11-3674, 11-3678
at *2.

The Michigan appellate courts denied relief pursuant to

Michigan Court Rule 6.508(D). As set forth above, that review was not
on the merits. The Court reviews the claim de novo. See Torres, 677 F.
App’x at 302.
Petitioner argues that the trial court considered dismissed charges
to enhance the punishments and sanctions against him. (Dkt. 1 at 19.)
The Court construes this argument as relating to jurisdiction in the
sense that Petitioner is arguing that he faced prosecution on charges
over which the trial court did not have jurisdiction. Petitioner is not
42

entitled to relief because the record does not support his claim. As
explained by Respondent, the Motion/Order of Nolle Prosequi in Case
No. 11-3679-FH reflects that Count Four was dismissed without
prejudice so that it could be prosecuted as a count in Case No. 11-3674FH. (See Dkt. 1 at 34.)
Further, a challenge to the exercise of jurisdiction is not
cognizable on habeas review.

The determination of whether a

particular state court is vested with jurisdiction under state law and is
the proper venue to hear a criminal case is a “function of the state
courts, not the federal judiciary.” Wills v. Egeler, 532 F.2d 1058, 1059
(6th Cir. 1976). A state court’s interpretation of state jurisdictional
issues conclusively establishes jurisdiction for purposes of federal
habeas review. Strunk v. Martin, 27 F. App’x 473, 475 (6th Cir. 2001).
Habeas relief is not warranted on this claim.
IV.

Conclusion

For the reasons set forth above, Petitioner is not entitled to
federal

habeas

relief.

Accordingly,

the

Court

DENIES

and

DISMISSES WITH PREJUDICE the petition for a writ of habeas
corpus.
43

Before Petitioner may appeal, a certificate of appealability
(“COA”) must issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A
federal court may issue a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2).

When a district court denies relief on the merits, the

substantial showing threshold is met if the petitioner demonstrates
that reasonable jurists would find the court’s assessment of the
constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S.
473, 484-85 (2000).

“A petitioner satisfies this standard by

demonstrating that . . . jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).

In this case, Petitioner fails to

make a substantial showing of the denial of a constitutional right as to
his habeas claims. Accordingly, the Court DENIES a COA.
The Court also finds that an appeal from this decision cannot be
taken in good faith. Fed. R. App. P. 24(a). Accordingly, the Court

44

DENIES Petitioner leave to proceed in forma pauperis on appeal.
IT IS SO ORDERED.

Dated: April 13, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on April 13, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

45