Bailey #201511 v. Lafler

Filing 103

ORDER regarding certificate of appealability; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK DAVID BAILEY #201511,
Plaintiff,

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BLAINE C. LAFLER
Respondent.
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No. 1:09-cv-460
HONORABLE PAUL L. MALONEY

ORDER REGARDING CERTIFICATE OF APPEALABILITY
A district court must issue a certificate of appealability either at the time the petition
for writ of habeas corpus is denied or upon the filing of a notice of appeal. Castro v. United

States, 310 F.3d 900, 903 (6th Cir. 2002) (per curiam).
A court may issue a certificate of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). See

Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). To satisfy this standard, the 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.’” Id. (quoting Slack v. McDaniel, 529 U.S.
473, 483 (2000)). Courts should undertake an individualized determination of each claim
presented by the petitioner when considering whether to issue a certificate of appealability.

Murphy v. Ohio, 551 F.3d 485, 492 (6th Cir. 2009).
Obviously, since the Court sustained Mr. Bailey’s objection as to Issue I, the Sixth
Circuit Court of Appeals may consider an appeal on that issue filed by the State.

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The Court finds that the entire record of this case, encompassing the two other issues
that Petitioner has preserved, should be analyzed by the Court of Appeals if the State files a
notice of appeal. Slack, 529 U.S. at 483 (noting a certificate may issue if the issues presented
are “adequate to deserve encouragement to proceed further”).
At a minimum, the ineffective assistance claim and the 404(b) evidentiary ruling are
relevant to Mr. Bailey’s meritorious Brady claim. More particularly, the questionable (but
ultimately, in this Court’s view, not unconstitutionally reversible) decisions of the state trial
court on Issues II and III are relevant to the question of whether Mr. Bailey “received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.” Strickler v. Greene,
527 U.S. at 290 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Because a Brady claim
necessarily looks to the other decisions at trial and the relative strength of the State’s case as
a whole, a full briefing on Issues II and III will be helpful to the Court of Appeals.
Because reasonable jurists could debate whether Mr. Bailey’s claims of error on
Issues II and III might be meritorious—particularly in light of the Court’s resolution of Issue
I and the effect of the suppressed evidence on the entire case—a certificate of appealability is
appropriate. Therefore, if the State files a notice of appeal with respect to the Court’s
issuance of a conditional writ of habeas corpus on Issue I, a Certificate of Appealability as to
Issues II and III is GRANTED.
IT IS SO ORDERED.
Date: September 20, 2016

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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