Smith v. Rivard
MEMORANDUM OPINION and ORDER Denying Petition for Writ of Habeas Corpus, Denying a Certificate of Appeabability, Denying Permission to Appeal in Forma Pauperis, Denying Motion to Appoint Counsel 10 , Denying Motion for Extension of Time to File Reply 7 , and Denying Motion to Stay Petition 2 - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-cv-10208
Judith E. Levy
United States District Judge
Mag. Judge Anthony P. Patti
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF
APPEALABILITY, DENYING PERMISSION TO APPEAL IN
FORMA PAUPERIS, DENYING MOTION TO APPOINT
COUNSEL , DENYING MOTION FOR EXTENSION OF TIME
TO FILE REPLY , AND DENYING MOTION TO STAY
This is a habeas case brought by a Michigan prisoner under 28
U.S.C. ' 2254. Petitioner William Smith was convicted after a jury trial
in the Wayne Circuit Court of second-degree murder, MICH. COMP. LAWS
' 750.317, and he was sentenced as a fourth-time habitual felony
offender to a term of fifty to eighty years’ imprisonment.
The pro se petition raises eight claims: (1) insufficient evidence
was presented at trial to sustain Petitioner’s conviction, (2) the
admission of gruesome autopsy photographs rendered Petitioner’s trial
fundamentally unfair, (3) a police officer impermissibly testified that a
prosecution witness was truthful, (4) the verdict went against the great
weight of the evidence, (5) an insufficient foundation was offered for
admission of the autopsy photographs, (6) the admission of hearsay
evidence rendered the evidence supporting the conviction insufficient,
(7) the cumulative effect of trial errors violated due process, and (8) the
prosecutor committed misconduct. The Court will deny the petition
because the claims are without merit. The Court will also deny
Petitioner a certificate of appealability and deny him permission to
proceed on appeal in forma pauperis. Petitioner’s motions for
appointment of counsel and to stay his petition will also be denied.
The Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct on habeas
review pursuant to 28 U.S.C. § 2254(e)(1). Wagner v. Smith, 581 F.3d
410, 413 (6th Cir. 2009).
Defendants’ convictions arise from the fatal beating of 52–
year–old Dale Glenn outside defendant McConer’s Detroit
home in the late evening of July 28, 2011. The prosecutor’s
theory at trial was that defendants Smith and McConer beat
Glenn because they suspected him of stealing. The
prosecution’s principal witness, DB, was sitting outside
defendant McConer’s house during the offense. According to
DB, as Glenn was walking down the street, defendant Smith
called him over. When Glenn approached, defendant Smith
struck Glenn in the head with a 40–ounce beer bottle,
causing Glenn to fall to the cement sidewalk. Defendant
Smith then kicked and stomped Glenn several times in his
head and face. Defendant McConer, who had been
barbequing nearby, then walked over and joined in the
assault by kicking Glenn in the lower part of his body. Both
defendants stopped the beating because of oncoming cars.
The defendants then carried Glenn across the street and left
him in a vacant field. Glenn was discovered and taken to the
hospital where he died on July 30, 2011, from blunt force
head trauma. The defense theory for both defendants was
that they were not involved in Glenn's death. Both
defendants argued that DB, who admittedly had consumed
160 ounces of beer that evening, and the other prosecution
witnesses were not credible. They were convicted and
sentenced as outlined above and now appeal as of right.
People v. Smith, No. 309422, 2014 WL 1510056, at *1 (Mich. Ct. App.
Apr. 15, 2014).
After he was sentenced, Petitioner filed an appeal of right. His
appellate counsel filed a brief on appeal raising three claims:
I. Was Appellant denied due process when he was convicted
of second-degree murder where the prosecutor failed to prove
that his acts or encouragement, as either a principal or an
aider and abettor, caused the death, and because of these
proof deficiencies must his conviction be vacated?
II. Did the judge deny Appellant a fair trial by admitting,
over objection, two particularly gruesome autopsy
photographs that were far more prejudicial than probative?
III. Was Appellant denied a fair trial by Sergeant McGinnis’
“human lie-detector” testimony, in which he told the jury
that eyewitness Darral Bolden was being truthful and was
counsel ineffective for not moving for a mistrial?
Petitioner also filed a supplemental pro se brief raising the
I. Is the Defendant entitled to a new trial where witnesses
testimony contradicts indisputable facts and defies realities?
II. Was the Defendant denied his due process rights where
the probative force of photographs were substantially out
weighed by the danger of unfair prejudice?
III. Did the trial court err in violation of the Defendants due
process rights where insufficient evidence was presented at
trial to sustain his conviction?
IV. The cumulative effect of errors.
V. Did the prosecutor violate Defendants due process rights
by prodigious use of improper testimony and knowingly
make improper comments to the jury in closing arguments?
The Michigan Court of Appeals affirmed Petitioner’s conviction in
an unpublished opinion. Smith, 2014 WL 1510056, at *17. Petitioner
subsequently filed an application for leave to appeal in the Michigan
Supreme Court which raised the same claims as in the Michigan Court
of Appeals. The Michigan Supreme Court denied the application
because it was not persuaded that the questions presented should be
reviewed by the Court. People v. Smith, 497 Mich. 1026 (2015) (table).
Standard of Review
28 U.S.C. § 2254(d)(1) curtails a federal court’s review of claims
raised by a state prisoner in a habeas action if they were adjudicated on
the merits by the state courts. Relief is barred under this section unless
the state court adjudication was contrary to or resulted in an
unreasonable application of clearly established Supreme Court law.
“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 [this] precedent.’”
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam), quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
“[T]he ‘unreasonable application’ prong of the statute 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. “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), quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004); see also Woods v. Etherton, ___ U.S. _____, 136 S.Ct. 1149, 1152
(2016) (habeas relief precluded if state court decision is “not beyond the
realm of possibility [from what] a fairminded jurist could conclude.”)
“Section 2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice systems, not
a substitute for ordinary error correction through appeal. . . . As a
condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
A. Sufficiency of the Evidence
Petitioner’s first, fourth, and sixth habeas claims challenge the
sufficiency of the evidence to support his conviction. His first claim
asserts that insufficient evidence was presented at trial to show that his
acts, as either the principal or as an aider/abettor, caused the death of
the victim. His fourth claim asserts that the verdict was “against the
great weight of the evidence,” warranting a new trial. And his sixth
claim asserts that if inadmissible hearsay statements are subtracted
from the evidence, then the remaining admissible evidence was
insufficient to sustain his conviction.
A “daunting, doubly deferential standard of review” applies to a
sufficiency-of-the-evidence inquiry on habeas review. Keys v. Booker,
798 F.3d 442, 450 (6th Cir. 2015). First, a review “must determine
whether, viewing the trial testimony and exhibits 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.” Brown
v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Second, even if the reviewing court concludes
that a rational trier of fact could not have found the petitioner guilty
beyond a reasonable doubt, it “must still defer to the state appellate
court’s sufficiency determination as long as it is not unreasonable.” Id.
As an initial matter, Petitioner erroneously claims that the Court
must subtract out evidence that he argues should have been excluded as
inadmissible hearsay. In assessing the sufficiency of the evidence the
Court is required to weigh all of the evidence, even that evidence which
was improperly admitted. See Lockhart v. Nelson, 488 U.S. 33, 38-39
(1988) (in assessing whether the evidence was sufficient for purposes of
determining whether retrial is permitted under the Double Jeopardy
Clause, court looks at all of the evidence admitted, even that which was
improperly admitted); Kowalak v. Scutt, 712 F.Supp.2d 657, 681 (E.D.
Mich. 2010). Accordingly, the Court is required to consider even the
allegedly improperly admitted hearsay evidence in determining
whether constitutionally sufficient evidence was presented to support
Under Michigan law, to establish the crime of second-degree
murder, the prosecution must prove: (1) a death, (2) caused by an act of
the defendant, (3) committed with malice, and (4) without justification
or excuse. People v. Smith, 478 Mich 64, 70 (2007). “Malice” is defined
as “the intent to kill, the intent to cause great bodily harm, or the intent
to do an act in wanton and willful disregard of the likelihood that the
natural tendency of such behavior is to cause death or great bodily
harm.” People v. Goecke, 457 Mich. 442, 464 (1998). Malice may be
inferred from the use of a weapon, from circumstantial evidence, or
from evidence that the defendant intentionally set into motion a force
likely to cause either death or great bodily harm. People v. Roper, 286
Mich. App. 77, 84-86 (2009).
Petitioner’s claim does not present a close question. According to
Darral Bolden’s testimony, Petitioner was the person who called the
victim over from across the street just prior to the attack. When the
victim leaned over the gate, Petitioner hit him with a forty-ounce glass
bottle causing the victim to fall to the sidewalk. Bolden testified that
Petitioner then started stomping and kicking the victim in the face.
McConer then joined in the stomping of the victim.
According to Bolden, the beating lasted around three minutes. The
victim was lying on the ground the whole time without defending
himself as he was being kicked by Petitioner and McConer. The two
men only stopped kicking the victim when cars drove down the street.
After the cars passed, Petitioner and McConer dragged the victim
across the street. Smith and McConer then returned to McConer’s
house. Bolden recalled Petitioner saying something about the victim
deserving the beating for stealing.
According to the testimony of the medical examiner, the victim
suffered multiple injuries to his head and right eye. The victim had
fractures to the bones around the eye, and the eye itself was filled with
blood and extruded from the socket. The victim’s head had a continuous
layer of hemorrhage under the scalp, indicating that many blows were
inflicted. The victim also had numerous fractures to the skull, extensive
injuries in the layer between the skull and the brain, and injuries to the
right hemisphere of the brain itself. The cause of death was multiple
blunt force trauma to the head.
Given the eyewitness testimony of Bolden and the testimony of
the medical examiner, the jury was presented with sufficient evidence
to allow them to find beyond a reasonable doubt that Petitioner
attacked the victim with any of the three versions of malice. Viewing
the evidence most favorably to the prosecution, Petitioner intentionally
incapacitated the victim by striking him with the bottle, and then he
proceeded to stomp him to death by kicking him in the head for a period
of minutes. Even on direct review, a court may not “reweigh the
evidence, reevaluate the credibility of witnesses, or substitute [its]
judgment for that of the jury.” Brown v. Konteh, 567 F.3d 191, 205 (6th
Cir. 2009). The state appellate court’s conclusion that the evidence
presented against Petitioner was sufficient to support his conviction
was not unreasonable.
Petitioner argues that there was evidence presented that no glass
was found in the victim’s wound or on the sidewalk, that Boldin was
examined with leading questions, and that McConer struck the fatal
blows after the victim was dragged across the street. But these
assertions ignore the standard requiring the Court to view the evidence
most favorably to the prosecution while assuming that the jury resolved
conflicts in the evidence in favor of the prosecution. White v. Steele, 602
F.3d 707, 709 (6th Cir. 2009). A habeas court must defer to the fact
finder for its assessment of the credibility of witnesses. Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003).
Finally, Petitioner’s fourth claim makes the related argument that
the “great weight of the evidence” was contrary to the verdict and
entitles him to a new trial. This claim is a state-law evidentiary claim
that is not cognizable on habeas review. See Wainright v. Goode, 464
U.S. 78, 84 (1983) (holding that only federal constitutional claims are
cognizable on habeas review). Accordingly, none of Petitioner’s claims
concerning the sufficiency of the evidence provide a basis for granting
B. Autopsy Photographs
Petitioner’s second claim asserts that admission of exhibits from
the medical examiner, depicting the condition of the victim’s body and
showing the extruded eyeball, were so inflammatory so as to render his
trial fundamentally unfair in violation of due process.
The Sixth Circuit repeatedly has held that the introduction of
graphic photographs of a victim’s corpse in a murder case does not
offend the Constitution when there is some legitimate evidentiary
purpose for demonstrating the nature of the injuries. See, e.g., Biros v.
Bagley, 422 F.3d 379, 391 (6th Cir. 2005) (“The [state] court found,
however, that the photographs were properly admitted as they
meticulously dissected her body with two different knives.”); Frazier v.
Huffman, 343 F.3d 780, 789 (6th Cir. 2003) (“The Ohio Supreme Court
directly addressed this evidentiary issue, concluding that the multiple
photographs ‘were introduced during the coroner’s testimony to
illustrate the testimony,’ that ‘[e]ach photograph presents a different
perspective of the victim,’ and that the photographs ‘were used to
illustrate’ the nature of the encounter that immediately preceded
Skiba’s death.”) (citation omitted); Cooey v. Coyle, 289 F.3d 882, 893
(6th Cir. 2002) (observing that “although the photographs were
gruesome, they were highly probative”).
Here, the photographs were relevant to illustrate the trial
testimony regarding the extent of the victim’s injuries and were
relevant to demonstrate the degree of malice with which the assault
was conducted. Certainly, the photographs in this case were less
inflammatory than in Biros, where the Sixth Circuit upheld the
admission of photographs depicting a victim’s severed head, severed
breast, and severed body parts placed near the victim’s torso. Biros, 422
F.3d at 391. Accordingly, Petitioner cannot establish a due process
violation arising from admission of the photographs.
Petitioner’s related fifth claim asserts that the prosecutor failed to
offer a proper evidentiary foundation for admission of the photographs.
As previously discussed, the Michigan Court of Appeals’ resolution of
this issue of state evidentiary law cannot be questioned by this Court.
Wainwright, 464 U.S. at 84. The Sixth Circuit has repeatedly
recognized that a state court's interpretation of state law, including one
announced on direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus. Stumpf v. Robinson, 722 F.3d 739, 746
n.6 (6th Cir. 2013) (collecting cases). Thus, the Michigan Court of
Appeals’ determination that the photographs were admissible under the
Michigan Rules of Evidence conclusively resolves this state law issue
Petitioner’s second and fifth claims therefore do not provide a
basis for granting habeas relief.
C. Admission of Testimony that Witness was Truthful
Petitioner’s third claim asserts that his trial was rendered
fundamentally unfair when a police officer testified that Bolden’s
statement to him was truthful.
The testimony in question occurred on cross examination of the
police officer. When defense counsel questioned the officer about
Bolden’s statement that the bottle shattered when the victim was
struck, he asked: “Of course, we never know if [Bolden] was telling the
truth about that or not, do we?” The officer responded, “I believe he
was.” Smith, 2014 WL 1510056, at *12-13. This brief exchange,
prompted by defense counsel’s question during the course of a severalday long trial, did not render Petitioner’s entire trial fundamentally
unfair. See, e.g., Maldonado v. Wilson, 416 F.3d 470, 477 (6th Cir. 2005)
(holding that state appellate court’s decision to uphold conviction,
despite arguably erroneous admission on redirect of police officer’s
testimony that key prosecution witness passed “test” for truthfulness,
was not contrary to or unreasonable application of federal due process
law, in that statements implying truth testing do not render trial
fundamentally unfair). This claim is without merit.
D. Cumulative Error
Petitioner’s seventh claim asserts that the cumulative effect of the
alleged trial errors rendered his trial unfair. The claim is not
cognizable. No United States Supreme Court precedent recognizes the
cumulative error doctrine. Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), a court only may grant habeas relief based on a
misapplication of Supreme Court law. Bailey v. Mitchell, 271 F.3d 652,
655 (6th Cir. 2001). Both because he has failed to demonstrate any
errors to aggregate and because his claim depends on non-Supreme
Court precedent, Petitioner is not entitled to habeas corpus relief on
this ground. Baze v. Parker, 371 F.3d 310, 330 (6th Cir. 2004).
E. Prosecutorial Misconduct
Petitioner’s eighth and final claim asserts that the prosecutor
committed misconduct. He alleges that the prosecutor improperly
informed the jury that defense counsel was requesting Petitioner be
convicted of the lesser crime of manslaughter, vouched for the
credibility of her witnesses, appealed for sympathy for the victim, and
indicated secret knowledge of Petitioner’s guilt.
To be entitled to habeas relief on a prosecutorial misconduct
claim, the petitioner must show that the prosecutor’s conduct so
infected the trial so as to render the conviction fundamentally unfair.
Parker v. Matthews, ___ U.S. _____, 132 S. Ct. 2148, 2153 (2012);
Gillard v. Mitchell, 445 F.3d 883, 897 (6th Cir. 2006) (citing Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). If the misconduct was
harmless, then as a matter of law, there was no due-process violation.
See Greer v. Miller, 483 U.S. 756, 765 & n.7 (1987). In federal habeas,
this means asking whether the error “had substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 623, 637-38 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)); see also Fry v. Pliler, 551 U.S.
112, 121-22 (2007).
With respect to the first allegation, immediately after the
comment regarding manslaughter was made, a side-bar was held after
which the trial court instructed the jury that the prosecutor’s remark is
“absolutely not accurate. [Defense counsel is] not asking anything.” The
court then directed the jury to disregard the remark. Smith, 2014 WL
1510056, *16. Jurors are presumed to follow their instructions. United
States v. Olano, 507 U.S. 725, 740 (1993). Indeed, Darden itself
contemplated that jury instructions could cure potential misconduct.
See Darden, 477 U.S. at 182 (finding significant that the trial court
“instructed the jurors several times that their decision was to be made
on the basis of the evidence alone, and that the arguments of counsel
were not evidence”). The trial court’s instruction here to disregard the
comment cured any prejudice caused by the remark.
Petitioner’s remaining allegations do not find support in the
record. Nothing in the transcript indicates that the prosecutor
expressed a personal opinion of Petitioner’s guilt based on secret
information. Her closing argument was based on the evidence presented
at trial. The prosecutor’s inferences about what happened derived from
Bolden’s description of the assault. Nor did the prosecutor play to the
sympathies of the jury – her use of the autopsy photographs were
relevant to show the brutal extent of the assault and supported her
position that Petitioner acted with malice. There was no impropriety in
any of the complained-of arguments, and this claim does not merit
F. Motion for Appointment of Counsel
Petitioner filed a motion for appointment of counsel. The
constitutional right to counsel in criminal proceedings provided by the
Sixth Amendment does not apply to an application for writ of habeas
corpus, which is a civil proceeding. Cobas v. Burgess, 306 F.3d 441, 444
(6th Cir. 2002). The Court has broad discretion in determining whether
counsel should be appointed. Childs v. Pellegrin, 822 F.2d 1382, 1384
(6th Cir. 1987). A habeas petitioner may obtain representation at any
stage of the case “[w]henever the United States magistrate or the court
determines that the interests of justice so require.” 18 U.S.C. §
3006A(a)(2)(B). In this case, the Court has determined that none of
Petitioner’s claims merit relief, and therefore appointment of counsel
would serve no useful purpose.
Motion to Stay Petition
On February 27, 2017, Petitioner filed a motion to stay his
petition so that he can return to the state court to exhaust claims
regarding the scored of the sentencing guidelines by the trial court.
(Dkt. 12.) A federal district court has discretion to stay a petition to
allow a petitioner to present unexhausted claims to the state courts and
then return to federal court on a perfected petition. Rhines v. Weber,
544 U.S. 269, 276 (2005). Stay and abeyance is not available, however,
where a petitioner’s unexhausted claims are “plainly meritless.” Id.at
277. The Court will deny the motion to stay the petition because
Petitioner's unexhausted sentencing guideline claims cannot form the
basis for granting future federal habeas relief. That is, his unexhausted
claims would be "plainly meritless" on federal habeas review after he
exhausts them in the state courts.
First, any argument that the sentencing guidelines were scored
incorrectly under state law is not cognizable. A state trial “court’s
alleged misinterpretation of state sentencing guidelines . . . is a matter
of state concern,” Howard v. White,76 F. App'x 52, 53 (6th Cir. 2003),
and “federal habeas corpus does not lie for errors of state law.” Lewis v.
Jeffers, 497 U.S. 764, 780 (1990). Consequently, Petitioner’s allegation
that the trial court incorrectly scored the offense variables of the state
sentencing guidelines is not a cognizable claim. Tironi v. Birkett, 252 F.
App'x 724, 725 (6th Cir. 2007).
As for Petitioner’s Sixth Amendment claim, the United States
Supreme Court ruled that any fact that increases the mandatory
minimum sentence for a crime is an element of the criminal offense that
must be proven beyond a reasonable doubt. Alleyne v. United States, ___
U.S. _____, 133 S. Ct. 2151, 2155 (2013). Alleyne is an extension of the
Supreme Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466
(2000) and Blakely v. Washington,542 U.S. 296 (2004), which held that
any fact that increases or enhances a penalty for a crime beyond the
prescribed statutory maximum for the offense must be submitted to the
jury and proven beyond a reasonable doubt.
Alleyne, however, is inapplicable to Petitioner’s case because it
“dealt with judge-found facts that raised the mandatory minimum
sentence under a statute, not judge-found facts that trigger an
increased guidelines range.” See United States v. Cooper, 739 F.3d 873,
884 (6th Cir. 2014); see also United States v. James,575 F. App'x 588,
595 (6th Cir. 2014) (collecting cases and noting that at least four postAlleyne unanimous panels of the Sixth Circuit have “taken for granted
that the rule of Alleyne applies only to mandatory minimum
sentences.”); Saccoccia v. Farley, 573 F. App'x 483, 485 (6th Cir. 2014)
(“But Alleyne held only that ‘facts that increase a mandatory statutory
minimum [are] part of the substantive offense.’ . . . It said nothing
about guidelines sentencing factors. . . .”). Petitioner’s claim concerns
judicial findings that set the guideline range for his minimum sentence.
The Sixth Circuit has ruled that Alleyne did not decide the question
whether judicial factfinding under Michigan’s indeterminate sentencing
scheme violates the Sixth Amendment. See Kittka v. Franks, 539 F.
App'x 668, 673 (6th Cir. 2013) (unpublished).
Petitioner points to the fact that the Michigan Supreme Court
relied on Alleyne in holding that Michigan’s Sentencing Guidelines
scheme violated the Sixth Amendment right to a jury trial. See People v.
Lockridge, 498 Mich. 358 (2015). Petitioner cannot rely on a state court
decision, however, to obtain federal habeas relief. The § 2254(d)
standard of review prohibits the use of lower court decisions in
determining whether a habeas petitioner’s federal constitutional rights
were violated. Miller v. Straub, 299 F. 3d 570, 578-579 (6th Cir. 2002).
“The Michigan Supreme Court’s decision in Lockridge does not
render the result ‘clearly established’ for purposes of habeas review.”
Haller v. Campbell, No. 1:16-CV-206, 2016 WL 1068744, at *5 (W.D.
Mich. Mar. 18, 2016). Accordingly, Lockridge cannot form the basis for
granting any future federal habeas relief. Nor does it appear that the
state courts will give Petitioner the benefit of that decision on postconviction review. The Michigan Supreme Court made its holding in
Lockridge applicable only to cases still pending on direct review.
Lockridge, 498 Mich. at 396. Petitioner’s direct review ended on May
28, 2015, when the Michigan Supreme Court denied relief, and
Lockridge was issued about two months later on July 29, 2015. The
Court therefore denies Petitioner’s motion to stay this case.
Certificate of Appealability
In order to appeal the Court=s decision, Petitioner must obtain a
certificate of appealability. 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 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). A
federal district court may grant or deny a certificate of appealability
when the court issues a ruling on the habeas petition. Castro v. United
States, 310 F.3d 900, 901 (6th Cir. 2002). Here, jurists of reason would
not debate whether the petition should have been resolved in a different
manner because Petitioner’s claims are completely devoid of merit. The
Court will also deny permission to appeal in forma pauperis because
any appeal of this decision cannot be taken in good faith. 28 U.S.C. '
For the reasons set forth above, it is hereby ordered that:
The petition for a writ of habeas corpus is DENIED;
A certificate of appealability is DENIED;
Permission to appeal in forma pauperis is DENIED; and
Petitioner’s motions for appointment of counsel (Dkt. 10), motion
for extension to time to file a reply to the response (Dkt. 7), and motion
to stay this petition (Dkt. 12) are DENIED.
IT IS SO ORDERED.
Dated: May 18, 2017
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 May 18, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
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