Harris v. Skipper
OPINION and ORDER Denying 1 , 8 Petition for Writ of Habeas Corpus; Denying Certificate of Appealability; and Granting Permission to Appeal in forma pauperis. Signed by District Judge Judith E. Levy. (WBar)
Case 5:18-cv-11915-JEL-SDD ECF No. 9, PageID.1240 Filed 11/18/21 Page 1 of 20
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Marcus J. Harris,
Case No. 18-cv-11915
Judith E. Levy
United States District Judge
OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS, DENYING CERTIFICATE OF
APPEALABILITY, AND GRANTING PERMISSION TO APPEAL
IN FORMA PAUPERIS
Petitioner Marcus Harris was convicted of assault with intent to
commit murder, Mich. Comp. Laws § 750.83, armed robbery, Mich.
Comp. Laws § 750.529, discharging a firearm in a building causing
serious impairment, Mich. Comp. Laws § 750.234b(4), assault with a
dangerous weapon, Mich. Comp. Laws § 750.82, and possession of a
firearm during the commission of a felony, Mich. Comp. Laws § 750.227b.
He seeks habeas corpus relief under 28 U.S.C. § 2254 on the grounds that
Case 5:18-cv-11915-JEL-SDD ECF No. 9, PageID.1241 Filed 11/18/21 Page 2 of 20
he was denied his right to a fair trial by the admission of irrelevant and
prejudicial evidence and his defense counsel was ineffective.
Because the Michigan Court of Appeals’ decision denying these
claims was neither contrary to Supreme Court precedent nor an
unreasonable application of it, the petition for habeas corpus is denied.
The Court also denies a certificate of appealability and grants Petitioner
leave to proceed in forma pauperis on appeal.
Petitioner’s convictions arise from a robbery and shooting which
occurred at a hotel in Redford, Michigan. In December 2014, Laquilla
Tyner advertised prostitution services on backpage.com. On December 9,
2014, she was working out of the Hilltop Motel and had a couple of
customers before she was contacted by a man she later identified as
Petitioner. She gave him her room number and sometime later, he
arrived there. After he paid Tyner fifty dollars, Petitioner went into the
bathroom to put on a condom. When he emerged, Tyner briefly turned
her back to him. As she turned to face him once again, Petitioner was
pointing a gun at her and demanding all her money. Tyner pushed him
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to the floor and reached for her cellphone. Petitioner grabbed the phone
out of her hand, shot her multiple times, and fled.
Tyner originally identified another man, Leonard Irvin, as the
perpetrator. She picked him out of a photographic lineup shown to her
while she was being treated at the hospital on the day of the shooting.
During a preliminary examination, Tyner recanted her previous
identification and testified that Irvin was not the perpetrator.
Several months later, Tyner was shown another photographic
lineup and identified Petitioner as the perpetrator. She again identified
him from an in-person lineup and at a preliminary examination.
The prosecutor also presented testimony from Ashley Sellenraad
who testified as an expert in the field of latent fingerprint analysis.
Sellenraad obtained a very high-quality print from Tyner’s cellphone and
was able to say “with a reasonable degree of scientific certainty” that the
latent fingerprint matched Petitioner’s fingerprint. (ECF No. 6-10,
Police detective James Meade accessed the call history on Tyner’s
cellphone and determined that the last number to call the phone before
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the shooting came from a phone registered to Sharae Ivey, the mother of
Federal special agent Stan Bure, an expert in the field of forensic
cellular analysis, testified that Petitioner’s cell phone was in the vicinity
of the Hilltop Motel around the time of the shooting.
Petitioner was convicted by a Wayne County Circuit Court jury,
and, on December 3, 2015, he was sentenced to twenty to fifty years for
assault with intent to commit murder and armed robbery, five to twenty
years for discharging a firearm in a building causing serious impairment,
one to four years for felonious assault, and two years for possession of a
firearm when committing a felony.
Petitioner filed an appeal as of right in the Michigan Court of
Appeals raising two claims: (i) the trial court improperly admitted
prejudicial evidence under Mich. R. Evid. 404(b), and (ii) counsel was
ineffective in failing to impeach the victim with a prior inconsistent
statement and failing to present evidence that Petitioner did not fit the
physical description of the perpetrator. The Michigan Court of Appeals
affirmed Petitioner’s convictions. People v. Harris, No. 330934, 2017 WL
2791030 (Mich. Ct. App. June 27, 2017). The Michigan Supreme Court
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denied Petitioner’s application for leave to appeal. People v. Harris, 501
Mich. 953 (Mich. 2018).
Petitioner then filed this habeas corpus petition. (ECF No. 1,
PageID.9.) He raises these claims:
I. Mr. Harris was denied his right to a fair trial by the trial
court’s admission of evidence under MRE 404(b) which was
irrelevant and highly prejudicial.
II. Mr. Harris was denied his right to effective assistance of
counsel by trial counsel’s failure to impeach Mr. Harris’s
accuser with a previous description of her attacker which was
inconsistent with Mr. Harris’s appearance and failure to
present evidence Mr. Harris could not have ever fit the earlier
Respondent filed an answer in opposition arguing that the Petition
should be dismissed because it was not signed and verified and that the
claims are meritless. (See ECF No. 5.) Petitioner has now submitted a
signed Petition. (See ECF No. 8.)
II. Legal Standard
A § 2254 habeas petition is governed by the heightened standard of
review set forth in the Anti-Terrorism and Effective Death Penalty Act
(AEDPA). 28 U.S.C. § 2254. To obtain relief, habeas petitioners who raise
claims previously adjudicated by state courts must “show that the
relevant state-court ‘decision’ (1) ‘was contrary to, or involved an
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unreasonable application of, clearly established Federal law,’ or (2) ‘was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.’” Wilson v. Sellers, 138
S. Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 2254(d)). The focus of this
standard “is not whether a federal court believes the state court’s
determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007). “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) (internal citations and quotation marks omitted). Ultimately,
“[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)). Additionally, a state court’s factual determinations are presumed
correct on federal habeas review, 28 U.S.C. § 2254(e)(1), and review is
“limited to the record that was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
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A. Admission of Evidence
Petitioner maintains that the trial court improperly admitted
evidence of his cellphone’s browser history under Mich. R. Evid. 404(b).
Petitioner’s browser history showed that he accessed backpage.com
approximately 100 times from March 2015 through his arrest on July 23,
2015. (ECF No. 6-7, PageID.138-39.)
The Michigan Court of Appeals considered this issue on direct
appeal and held that the evidence was properly admitted:
[T]he Michigan Supreme Court stated the framework for
analyzing admissibility under MRE 404(b):
Evidence relevant to a noncharacter purpose is
admissible under MRE 404(b) even if it also reflects on
a defendant’s character. Evidence is inadmissible under
this rule only if it is relevant solely to the defendant’s
character or criminal propensity .... Any undue
prejudice that arises because the evidence also
unavoidably reflects the defendant’s character is then
considered under the MRE 403 balancing test, which
permits the court to exclude relevant evidence if its
“probative value is substantially outweighed by the
danger of unfair prejudice . . . .” MRE 403. . . .
The trial court properly admitted the evidence.
Defendant contacted the victim to engage her in her “escort
service,” a service the victim advertised on Backpage.com.
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Shortly after he arrived at the victim’s motel room at the
Hilltop Motel, defendant shot and then robbed the victim.
The browser history showed that defendant visited
Backpage.com after the incident with the victim took place.
The trial court ruled that the browser history extracted
from defendant’s personal cellphone was admissible only
“for purposes of scheme or plan[.]” Those are proper
purposes under MRE 404(b). If the jury found that
defendant’s visits to Backpage.com after the incident were
for the purpose of locating “escort services,” then
defendant’s visits to Backpage.com were highly probative
as to how defendant identified and then contacted the
victim prior to the incident.
Defendant contends on appeal that the trial court erred
when it admitted defendant’s browser history into evidence
to establish a common plan or scheme by defendant. The
browser history extracted from defendant’s phone
indicated that defendant visited Backpage.com on multiple
occasions after the incident occurred at the Hilltop Motel.
Defendant argues that his subsequent visits to
Backpage.com cannot be part of a common plan or scheme
because the acts in question must be part of a single
common plan, and therefore, his subsequent visits to
Backpage.com are irrelevant because those visits could not
be part of a common plan to rob the victim after she had
already been robbed.
Defendant’s contention is without merit. Under MRE
404(b)(1), evidence of defendant’s acts “subsequent to the
conduct in the case” are admissible to show a “scheme” or
“plan.” As such, the mere fact that defendant visited
Backpage.com after the incident occurred does not render
the evidence irrelevant. And defendant’s contention that
evidence of defendant’s subsequent visits to Backpage.com
must necessarily have been part of his scheme or plan to
rob the victim is without merit. “[R]elevant similar acts are
not limited to circumstances in which the charged and
uncharged acts ‘are part of a single continuing conception
or plot.’” People v. Ackerman, 257 Mich. App. 434, 440
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(2003), citing People v. Sabin, 463 Mich. 43, 64 (2000).
“[E]vidence of other acts ‘must indicate the existence of a
plan rather than a series of similar spontaneous acts,’ but
unlike evidence of other acts used to prove identity, ‘the
plan need not be unusual or distinctive; it need only exist
to support the inference that the defendant employed that
plan in committing the charged offense.’” Ackerman, 257
Mich. App. at 440, citing Sabin 463 Mich. at 65 (citation
and quotation marks omitted). The victim testified that she
advertised her escort services on Backpage.com, and she
confirmed that defendant contacted her on the number she
listed on that website. Therefore, defendant’s subsequent
usage of the same website that the victim advertised her
escort services on supports the inference that he previously
used the website to identify and contact the victim.
Harris, 2017 WL 2791030, at *2–3.
The Michigan Court of Appeals’ decision was not contrary to, or an
unreasonable application of, Supreme Court precedent. First, to the
extent that Petitioner raises this claim as a violation of state law, his
claim is not cognizable on federal habeas review. See Shoemaker v. Jones,
600 F. App’x 979, 984 (6th Cir. 2015). A federal court may grant an
application for writ of habeas corpus only on the ground that the
petitioner is in custody in violation of the Constitution, laws, or treaties
of the United States, and not for perceived errors of state law. See 28
U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
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Second, Petitioner fails to show a due process violation. The
admission of evidence may violate the Due Process Clause (and thereby
provide a basis for habeas relief) where the admission “is so extremely
unfair that its admission violates ‘fundamental conceptions of justice.’”
Dowling v. United States, 493 U.S. 342, 352 (1990) (quoting United States
v. Lovasco, 431 U.S. 783, 790 (1977)); see also Wilson v. Sheldon, 874 F.3d
470, 475 (6th Cir. 2017). The Supreme Court “defined the category of
infractions that violate ‘fundamental fairness’ very narrowly.” Estelle,
502 U.S. at 73 (quoting Dowling, 493 U.S. at 352). To violate due process,
an evidentiary decision must “offend[ ] some principle of justice so rooted
in the traditions and conscience of our people as to be ranked as
fundamental.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003)
Here, the disputed evidence was admitted for a proper purpose: to
show Petitioner’s familiarity with and frequent use of backpage.com.
Further, the Supreme Court has not held that a state violates due process
by admitting evidence of a defendant’s other bad acts. See Bey v. Bagley,
500 F.3d 514, 520 (6th Cir. 2007). Given the state court's conclusion that
the evidence was properly admitted under state law and the absence of
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any clearly established Supreme Court precedent prohibiting this type of
testimony, the Court cannot conclude that the admission of this evidence
was unconstitutionally egregious or fundamentally unfair such that
Petitioner was deprived of his right to a fair trial.
The Michigan Court of Appeals further held that, even if the trial
court abused its discretion in admitting the browser history, any error
was harmless. Harris, 2017 WL 2791030 at *3. The court of appeals
characterized the evidence of Petitioner’s guilt as “overwhelming” citing
this evidence: Ashley Sellenraad’s testimony that the fingerprint found
on the victim’s phone matched Petitioner’s, Special Agent Brue’s
testimony that an analysis of cellphone activity on December 9, 2014
during the relevant time period placed Petitioner in the approximate
location of the Hilltop Motel, and that the last phone number that made
a call to the victim’s phone before the robbery was registered to the
mother of Petitioner’s child. Id.
A state court’s decision that an error was harmless constitutes an
adjudication “on the merits” to which the highly deferential AEDPA
standard applies. See Davis v. Ayala, 576 U.S. 257, 269 (2015). Thus, this
Court may not grant relief unless the state court’s “‘harmlessness
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determination itself was unreasonable.’” Id. (quoting Fry v. Pliler, 551
U.S. 112, 119 (2007)); accord Stewart v. Trierweiler, 867 F.3d 633, 636
(6th Cir. 2017).
The Court sees nothing in the record which would call into question
the Michigan Court of Appeals’ determination that any error was
harmless. Accordingly, relief is denied on this claim.
B. Ineffective Assistance of Counsel
Petitioner’s second claim concerns defense counsel’s performance.
Petitioner alleges that counsel was ineffective for failing to impeach
Laquilla Tyner with a prior inconsistent statement describing
Petitioner’s appearance and for failing to present evidence about
Petitioner’s appearance at the time of the shooting.
A violation of the Sixth Amendment right to effective assistance of
counsel is established where an attorney’s performance was deficient and
the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is
deficient if “counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. To establish that an attorney’s deficient
performance prejudiced the defense, the petitioner must show “a
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reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. Unless the petitioner demonstrates both deficient
performance and prejudice, “it cannot be said that the conviction [or
sentence] resulted from a breakdown in the adversary process that
renders the result unreliable.” Id. at 687.
The standard for obtaining habeas corpus relief is “‘difficult to
meet.’” White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Metrish v.
Lancaster, 569 U.S. 351, 358 (2013)). In the context of an ineffective
assistance of counsel claim under Strickland, the standard is “all the
more difficult” because “[t]he standards created by Strickland and §
2254(d) are both highly deferential and when the two apply in tandem,
review is doubly so.” Harrington, 562 U.S. at 105 (internal citations and
quotation marks omitted). “[T]he question is not whether counsel’s
actions were reasonable” but whether “there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Id.
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Petitioner contends that counsel should have cross-examined Tyner
about inconsistencies in Tyner’s description of his hairstyle. The state
court summarized the relevant testimony:
During the preliminary examination, defendant’s trial
counsel asked the victim about her attacker: “[s]o, did he have
clothes—was he undressed? ” The victim replied, “[n]o, he had
on all black. At the time he had braids.” During trial,
defendant’s trial counsel cross-examined the victim about
whether defendant's head was covered during the incident.
She testified that she did not remember whether defendant's
head was covered at the time of the incident. She noted that
“it was cold,” and she speculated “he probably had a skully
on,” however, she stated that “I didn’t pay attention. I just
wanted the money.” Defendant’s trial counsel replied, “[o]kay.
Now you recall at a preliminary examination indicating that
the person had braided hair?” The prosecutor interjected and
asked defendant’s trial counsel what page that testimony
could be found on, and he responded by apologizing for being
unable to find the page number. Ultimately, defendant’s trial
counsel stated, “[w]ell let’s move on,” and the victim did not
answer his question regarding her attacker's hairstyle at the
time of the incident.
Harris, 2017 WL 2791030, at *5.
Petitioner argues that by moving on, counsel missed an important
opportunity to impeach Tyner. The Michigan Court of Appeals held that
counsel was not ineffective:
[D]efendant’s trial counsel then cross-examined the victim
about her initial identification of a different individual as her
attacker. She confirmed that she had initially identified
another individual as her attacker while she was medicated
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and in the hospital after the incident. The victim stated that
individual “wasn’t the person,” and she noted that the police
had “asked me a dumb question while I was drugged up.”
During his closing argument, defendant’s trial counsel posed
the following question to the jury: did any of the juror’s recall
what the prosecutor was wearing two days earlier? The trial
court judge did not allow any of the jurors to answer this
question, however, defendant’s trial counsel stated that “the
point I’m trying to get at is that [the prosecutor] and I have
been before you for quite a few hours now trying this case, but
yet your memory as to what we were wearing is nil. That’s the
point I’m trying to make as far as identification is concerned.”
He then emphasized the importance of identification, and he
then asked the jury to be “very careful in rendering” the
The record on appeal does not provide an explanation as
to why defendant’s trial counsel decided to move on from his
attempt to impeach the victim regarding her earlier
testimony. However, “[t]his Court does not second-guess
counsel on matters of trial strategy, nor does it assess
counsel’s competence with the benefit of hindsight.” Russell,
297 Mich. App. at 716, citing Horn, 279 Mich. App. at 39.
Further, it is clear from the record that defendant’s trial
counsel pursued other avenues to undermine the credibility of
the victim’s identification of defendant during crossexamination and again in his closing argument. Therefore,
defendant has failed to carry his burden to demonstrate that
his trial counsel rendered an objectively unreasonable
Id. at *5-6. Further, considering the “overwhelming evidence of
[Petitioner’s] guilt[,]” even if defense counsel’s performance was deficient,
the court held that Petitioner “cannot demonstrate that error was
outcome determinative.” Id at *6.
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The Michigan Court of Appeals’ decision was not an unreasonable
application of, or contrary to, Strickland. Counsel did not entirely forego
impeachment of Tyner. Instead, he focused on Tyner’s original
identification of a different individual as the perpetrator. An attorney
acting reasonably could have concluded that it was more beneficial to
proceed to Tyner’s recanted identification than to focus on the offender’s
hair. Tyner already testified she did not “pay attention” to that detail and
no further questions followed her single reference to braids during the
preliminary examination. Accordingly, impeachment on the issue of
Petitioner’s hair was not clear or guaranteed.
The Michigan Court of Appeals did not specifically address
Strickland’s prejudice prong. Instead the court proceeded directly to a
harmless error analysis. AEDPA’s deferential standard applies to the
state court’s harmless error determination. Ayala, 576 U.S. at 269. The
Michigan Court of Appeals reasonably concluded that any failure to
cross-examine Tyner about Petitioner’s hairstyle was harmless when
balanced against other incriminating evidence including Petitioner’s
fingerprint on Tyner’s phone, testimony that cellphone records showed
Petitioner was in the vicinity of the hotel at the time of the crime, and
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that the last phone number to call Tyner’s phone was registered to the
mother of Petitioner’s child. The state court’s reasonable determination
that any error was harmless means that the error was not prejudicial
under Strickland. See Kyles v. Whitley, 514 U.S. 419, 435-436 (1995)
(where an error is harmless a petitioner cannot make a showing of
Strickland prejudice); Wright v. Burt, 665 F. App’x 403, 410 (6th Cir.
Finally, Petitioner argues that counsel was ineffective for failing to
present evidence that he did not wear braids at the time of the offense.1
Petitioner offered two affidavits in support of this argument, one from his
sister and the other from the mother of his children. (See ECF No. 6-12,
PageID.783-84, 789-90.) Both affidavits state that Petitioner has always
had thinning hair, has never had braids, and has never been able to grow
The Michigan Court of Appeals did not separately address this portion of
Petitioner’s ineffective assistance of counsel claim. Nevertheless, the deferential
standard set forth in § 2254(d) presumptively applies even where the state court
deciding a federal claim “issues an opinion that . . . does not expressly address the
federal claim in question.” Johnson v. Williams, 568 U.S. 289, 292 (2013). “[T]he
federal habeas court must presume (subject to rebuttal) that the federal claim was
adjudicated on the merits.” Id. at 293. Petitioner has not attempted to rebut the
presumption that the state court implicitly rejected this portion of Petitioner’s
ineffective assistance of counsel claim on the merits. The Court accordingly applies a
deferential standard of review.
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braids. It was not unreasonable for defense counsel not to present this
evidence because it would not have significantly impeached Tyner. Tyner
testified at trial that she “didn’t pay attention” to the perpetrator’s head
or hair. She thought he might have worn a hat because it was cold, but
emphasized that she was not concerned at the time about the
perpetrator’s hairstyle or what he may have worn on his head. This
testimony was not inconsistent with her statement made just after the
shooting that a hoodie covered the perpetrator’s head. (ECF No. 6-12,
PageID.979.) Considering this and the much greater impeachment value
from Tyner’s previous identification of a different individual as the
perpetrator, it was reasonable for counsel to focus on a different avenue
of impeachment. Further, for the reasons discussed above, Petitioner was
not prejudiced by any error.
Certificate of Appealability
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254
has no automatic right to appeal a district court’s denial or dismissal of
the petition. Instead, [the] petitioner must first seek and obtain a
[certificate of appealability.]” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). A certificate of appealability may issue “only if the applicant has
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made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To receive a certificate of appealability, “a petitioner
must show that reasonable jurists could debate whether (or, for that
matter, 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.” Miller-El, 537 U.S. at 336 (internal
quotes and citations omitted).
Reasonable jurists would not find the Court’s assessment of
Petitioner’s claims to be debatable or wrong. The Court therefore declines
to issue a certificate of appealability.
The Court grants Petitioner leave to appeal in forma pauperis
because an appeal could be taken in good faith. 28 U.S.C. § 1915(a)(3);
Fed. R. App. P. 24(a)(3)(A).
For the foregoing reasons, IT IS ORDERED that the petition for a
writ of habeas corpus and a certificate of appealability is DENIED and
the matter is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Petitioner may proceed on
appeal in forma pauperis.
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IT IS SO ORDERED.
Dated: November 18, 2021
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 November 18, 2021.
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