Dothard #140378 v. Berghuis
Filing
40
OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEVIN PAUL DOTHARD,
Petitioner,
Case No. 1:11-cv-753
v.
Honorable Robert J. Jonker
MARY BERGHUIS,
Respondent.
____________________________________/
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Petitioner is serving concurrent terms of 20 to 40 years, imposed by the Ingham County
Circuit Court on August 6, 2008, after a jury convicted Petitioner of one count of unarmed robbery,
MICH. COMP. LAWS § 750.530, and one count of armed robbery, MICH. COMP. LAWS § 750.529.
Petitioner was sentenced as an habitual offender, MICH. COMP. LAWS § 769.12. In his pro se second
amended petition (ECF No. 18) Petitioner raises six grounds for relief. Petitioner’s issues are stated
most clearly in his response (ECF No. 37) to the answer to the second amended petition:
1.
STATE TRIAL COURT VIOLATED PETITIONER’S DUE PROCESS
RIGHTS WHEN IT FAILED TO REFER HIM TO THE FORENSIC
CENTER FOR A COMPETENCY HEARING.
2.
THE TRIAL COURT DID NOT OBTAIN A PROPER WAIVER OF
PETITIONER’S RIGHT TO COUNSEL WHEN IT FORCED HIM TO
REPRESENT HIMSELF.
3.
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE
CONVICTION.
4.
PETITIONER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
AT A CRITICAL STAGE. TRIAL COUNSEL SHOWED CONFLICT OF
INTEREST, FAILED TO INVESTIGATE, HAD NOT DEVELOPED A
TRIAL STRATEGY, AND WAS NOT PREPARED FOR TRIAL.
5.
THE PROSECUTOR ENGAGED IN PREJUDICIAL MISCONDUCT.
PROSECUTOR CREATED FALSE TESTIMONY CHANGING FACTS OF
CASE. THE PROSECUTOR SOLICITED AND ARGUED FALSE
TESTIMONY AND INTRODUCTION OF FALSE EVIDENCE KNOWN
TO BE FALSE TO THE PROSECUTOR. THE PROSECUTOR DENIED
THE PETITIONER THE RIGHT TO PRESENT HIS DEFENSE AND
SUBJECT THE PROSECUTION’S CASE TO ADVERSARIAL TESTING
WHEN REPEATEDLY INTERRUPTING, OBJECTING, AND
COMMENTS. THE PROSECUTOR VOUCHED FOR HIS WITNESSES
DESPITE THE PHYSICAL AND SCIENTIFIC EVIDENCE SHOWING
HIS WITNESSES WERE DELIBERATELY PERJURING THEMSELVES
ON THE WITNESS STAND.
6.
THE TRIAL JUDGE ENGAGED IN MISCONDUCT AND WAS
IMPROPERLY IMPARTIAL [SIC] TO THE PROSECUTION’S CASE.
THE TRIAL JUDGE OPENLY DENIED THE PETITIONER THE RIGHT
TO PRESENT HIS DEFENSE AND SUBJECT THE PROSECUTION’S
CASE TO ADVERSARIAL TESTING WHEN IT REPEATEDLY
INTERRUPTED, OBJECTED AND COMMENTED ON THE
PETITIONER’S ATTEMPTS AT CROSS-EXAMINATION, OPENING
STATEMENT, AND CLOSING ARGUMENTS. THE TRIAL JUDGE’S
MISCONDUCT WAS NOT THAT EXPECTED OF WHAT ORDINARY
PEOPLE DO. THE TRIAL JUDGE SUPPORTED THE FALSE
TESTIMONY AND EVIDENCE OF THE PROSECUTOR’S CASE.
MAKING PREJUDICIAL RULINGS, OFTEN OBJECTING HIMSELF.
THE TRIAL JUDGE BELITTLED AND DEGRADED THE PETITIONER
REPEATEDLY. THE TRIAL JUDGE EVEN AT ONE POINT TOLD THE
PROSECUTOR “WHEN HE ASKS QUESTIONS, YOU ARE TO OBJECT.
I’M TIRED OF DOING THIS BY MYSELF.” THESE THINGS WERE
DONE IN FRONT OF THE JURY AND THE PETITIONER WAS DENIED
THE FAIR TRIAL GUARANTEED HIM BY CLEARLY SUPREME
COURT LAW AND THE U.S. CONSTITUTION.
(ECF No. 37, PageID.1373-74.) Respondent has filed an answer to the petition (ECF No. 27) and
submitted the state-court record (ECF No. 28) as required under Rule 5, RULES GOVERNING §2254
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CASES. Upon review of the pleadings and the record, the Court will deny the petition for failure to
raise a meritorious federal claim.
Procedural History
A.
Trial Court Proceedings
On November 15, 2007, at around 8:00 p.m., Petitioner walked into the Rite Aid
pharmacy at 5032 South Cedar Street in Lansing. (TTII V1, ECF No. 28-9, PageID.726.)1 Firmesk
Silevany was working as a loss prevention officer at the Rite Aid that night. (Id. at PageID.725-26.)
She had trained for a month, but that night Ms. Silevany was working solo and Ms. Reyes, her trainer
and supervisor, observed from more of a distance. (Id.) Ms. Silevany watched Petitioner stuff his
pockets with deodorants. (Id. at PageID.728.) Ms. Silevany contacted Ms. Reyes. (Id. at
PageID.727-28.) They both observed Petitioner; Ms. Silevany contacted the police, Ms. Reyes
confronted Petitioner. (Id. at PageID.728-29.)
Upon being confronted, Petitioner headed to the front door to grab some bags he had
dropped off when he entered the store. (Id. at PageID.729.) He picked up his bags and started to
leave the store. (Id. at PageID.729-30.) As he passed the cash registers and approached the doors,
1
The Rule 5 materials submitted by Respondent include several transcripts that shall be referenced herein as
follows:
December 7, 2007 Preliminary Examination Hearing
March 24, 2008 Hearing Transcript
May 27, 2008 Trial Transcript I (Volume 1)
May 29, 2008 Trial Transcript I (Volume 2)
May 30, 2008 Trial Transcript I (Volume 3)
July 7, 2008 Trial Transcript II (Volume 1)
July 8, 2008 Trial Transcript II (Volume 2)
July 10, 2008 Trial Transcript II (Volume 3)
August 6, 2008 Sentencing Transcript
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(PE, ECF No. 28-2, p. __)
(HT, ECF No. 28-3, p. __)
(TTI V1, ECF No. 28-4, p. __)
(TTI V2, ECF No. 28-7, p. __)
(TTI V3, ECF No. 28-8, p. __)
(TTII V1, ECF No. 28-9, p. __)
(TTII V2, ECF No. 28-10, p. __)
(TTII V3, ECF No. 28-11, p. __)
(ST, ECF No. 28-12, p. __)
Ms. Reyes and Ms. Silevany informed Petitioner that he still had Rite Aid merchandise that he had
not paid for. (Id. at PageID.730-31.)
Petitioner headed out of the building.
Ms. Silevany could tell he still had
merchandise because his pockets were still bulging. (Id.) Ms. Silevany tried to stop Petitioner from
leaving. (Id.) He pushed her out of the way and even hit her. (Id. at PageID.731.) Petitioner
punched Ms. Reyes as well. (Id. at PageID.732.) Petitioner tripped and fell; he dropped his bag.
(Id. at PageID.732-33.) Ms. Silevany attempted to help him up. (Id.) He threatened to kill her. (Id.)
Ms. Silevany continued her attempt to detain Petitioner until the police arrived. (Id.
at PageID.733-34.) Petitioner continued to push her forward, eventually into the street. (Id.)
Petitioner dropped the backpack, but continued down Cedar Street. (Id. at PageID.734.) Petitioner
also left his coat; it had come off during the scuffle. (Id. at PageID.735.)
Ms. Reyes confirmed that she had observed Petitioner stuffing his clothing with
deodorant cans. (TTII V2, ECF No. 28-10, PageID.757-58.) As she approached and questioned him,
Petitioner started returning some of the items to the shelf. (Id. at PageID.759.) Petitioner headed
toward the front exit. (Id. at PageID.759-60.) On the way out, he gave back one can of Axe
deodorant spray. (Id.) Ms. Reyes confirmed the punching and pushing that Ms. Silevany had
described. (Id. at PageID.761-62.) She saw Petitioner pull a knife from his pocket. (Id. at
PageID.762.) She believed he was going to stab Ms. Silevany, so she grabbed him. (Id.) As he
quickly turned, Petitioner threatened to kill Ms. Reyes and stabbed her in the side with a pocketknife.
(Id. at PageID.763.) Ms. Reyes believed that the knife blade was not fully extended. (Id. at
PageID.763, 778.) After Petitioner fled, Ms. Reyes retrieved the duffle bag, backpack, and coat he
had left in the parking lot. (Id. at PageID.764-65.) The part of the incident that occurred in the store
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was captured on surveillance video; Ms. Reyes narrated that video as it played for the jury. (Id. at
PageID.765-66.)
The Lansing Police arrived shortly after Petitioner had fled. Officer Brian Rendon
and his canine partner, Recon, tracked Petitioner. (Id. at PageID.780-82.) Recon located Petitioner
quickly in a clump of trees near the Family Independence Agency not far from the Rite Aid
pharmacy. (Id.) Petitioner was placed under arrest. (Id. at PageID.785.) Officer Brian Whitsitt
located a knife and a gold watch under the pine trees where Recon found Petitioner. (TTII V1, ECF
No. 28-9, PageID.749.) Officer Kristi Pratl went through the bags Petitioner had left behind. (TT
II V2, ECF No. 28-10, PageID.787.) She found items that had been taken from Rite Aid as well as
items taken from the Walgreen’s pharmacy across the street. (Id.)
Ms. Reyes and Ms. Silevany testified at Petitioner’s preliminary examination on
December 7, 2007. (PE, ECF No. 28-2.) Petitioner was represented by Attorney Raymond
Reynolds. (Id.) Petitioner was bound over to the circuit court on charges of armed and unarmed
robbery. (Id. at PageID.95.)
Trial was initially set for February 25, 2008. (ECF No. 28-1, PageID.447.) It was
adjourned to March 24, 2008. (Id.) Before that date, however, Attorney Reynolds moved to
withdraw as counsel and for the circuit court to refer Petitioner to the forensic center to assess his
competency. (HT, ECF No. 28-3, PageID.499.) The court denied the motion to refer Petitioner to
the forensic center. The court noted its suspicion that Petitioner’s dissatisfaction with his attorney
and any suggestion that he was not competent was simply a ploy to foster delay. Petitioner
adamantly denied that he was incompetent. The court granted the motion to withdraw, appointed
new counsel, Attorney Todd Robinson, and rescheduled the trial for May 27, 2008.
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Petitioner became dissatisfied with Attorney Robinson shortly before the scheduled
trial date. On the day scheduled for trial, Attorney Robinson raised the issue with the court. (TTI
V1, ECF No. 28-4, PageId.505-07.) The court, unwilling to accept further delay, granted Petitioner’s
request to represent himself and instructed Attorney Robinson to continue on as standby counsel.
(Id.) The trial resulted in a hung jury. (TTI V3, ECF No. 28-8, PageID.704.) The court declared
a mistrial and scheduled the matter for a new trial. (Id.)
The second trial commenced on July 7, 2008. (TTII V1, ECF No. 28-9.) The
prosecution moved the court to order Attorney Robinson, still appearing in a standby capacity, to
appear as Petitioner’s appointed counsel instead of permitting Petitioner to represent himself. (Id.
at PageID.707.) Attorney Robinson, on Petitioner’s behalf and with Petitioner’s blessing, argued
that Petitioner wanted to represent himself, had proven his ability to do so in the first trial, and had
committed to avoid practices that had been problematic in the first trial. (Id. at PageID.707-08.)
The trial proceeded and evidence was introduced as outlined above.2 The jury began
deliberations on July 10, 2008, at about 11:30 a.m. (TTII V3, ECF No. 28-11, PageID.817.) After
deliberating for a couple of hours, they posed a question: “If we find all four elements are present
for armed robbery, must we find him guilty of armed robbery?” (Id.) In response, the court
instructed them: “I have told you what the law of this case is. However, a jury is free–or I should
say a jury is free to act as it chooses.” (Id.) Three hours later, the jury returned a verdict of guilty
on both counts. (Id. at PageID.819.) On August 6, 2008, Petitioner was sentenced as outlined above.
(ST, ECF No. 28-12.)
2
The evidence that was introduced at both trials was virtually the same; however, the record citations in the
factual statement above are all taken from the second trial, the trial that resulted in Petitioner’s convictions.
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B.
Direct Appeal
Petitioner appealed as of right to the Michigan Court of Appeals. The brief filed by
counsel, raised, arguably, three issues: “[1] The Court erred in not remanding defendant to the Center
for Forensic Psychiatry . . . [; 2] No valid waiver of the right to counsel occurred. . . . [; and 3]
Standby defense counsel was constitutionally ineffective when he supported defendant’s request to
represent himself.”3 (See Def.-Appellant’s Br. on Appeal, ECF No. 28-17, PageID.887.) Petitioner
filed a supplemental brief (ECF No. 28-17, PageID.937-96) raising the following additional issues:
1.
The trial court deprived Petitioner of his Sixth Amendment right to counsel.
2.
The trial court erred in denying the motion for a directed verdict or there was
insufficient evidence to convict.
3.
The trial court improperly instructed the jury.
4.
Counsel provided ineffective assistance.
5.
Judicial misconduct–the trial judge was biased against Petitioner.
6.
The prosecutor knowingly introduced and argued false testimony.
7.
Petitioner’s jury was not a fair cross section of the community because it
systematically excluded African Americans.
(Id. at PageID.938-39.) By unpublished opinion issued on February 9, 2010, the Michigan Court of
Appeals rejected Petitioner’s arguments and affirmed Petitioner’s convictions and sentences. (Mich.
Ct. of Appeals Op. (“MCAO”), ECF No. 28-17.)
Petitioner filed a pro per application for leave to appeal to the Michigan Supreme
Court. Petitioner raised all of the claims raised before and rejected by the Michigan Court of
Appeals except issue 3, regarding improper instructions, and issue 7, regarding the jury pool. (Pro
3
The brief purports to state only one issue, but presents three distinct arguments. (ECF No. 28-17.)
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Per Appl. for Leave to Appeal, ECF No. 28-18.) By order entered July 26, 2010, the Michigan
Supreme Court denied his application for leave to appeal because it was not persuaded that the
questions presented should be reviewed. (Mich. Sup. Ct. Ord., ECF Nos. 28-18.)
C.
Post-conviction relief
On December 29, 2011, Petitioner filed a motion for relief from judgment in the
Ingham County Circuit Court raising three claims of error: (1) the court abused its discretion in not
referring Petitioner to the Forensic Center; (2) improper waiver of counsel and ineffective assistance
of counsel; and (3) insufficient evidence to convict. (Pet’r’s Mot. for Relief from J., ECF No. 28-13,
PageID.827.) These are all issues he had raised on direct appeal. Petitioner’s motion was denied
for that reason: he had raised each of the issues on direct appeal and the court of appeals had
addressed and rejected them. (Ord., ECF No. 28-14, PageID846.) Petitioner sought and was denied
reconsideration. (ECF Nos. 28-14, 28-15.) Petitioner sought leave to appeal in the Michigan Court
of Appeals and the Michigan Supreme Court. Both courts denied leave to appeal under M.C.R.
6.508(D), on December 14, 2012 and July 30, 2013, respectively. (See Mich. Ct. App. Ord., ECF
No. 28-19; Mich. Ord. ECF No. 28-20.)
Standard of Review
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996,
PUB. L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The
AEDPA “prevents federal habeas ‘retrials’” and ensures that state court convictions are given effect
to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). The AEDPA has
“drastically changed” the nature of habeas review. Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir.
2001). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant
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to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits
in state court unless the adjudication: “(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 upon an unreasonable determination
of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d).
This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. __, 135 S. Ct. 1372,
1376 (2015) (internal quotation marks omitted).
The AEDPA limits the source of law to cases decided by the United States Supreme
Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and
not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey, 271 F.3d
at 655. In determining whether federal law is clearly established, the Court may not consider the
decisions of lower federal courts. Lopez v. Smith, 135 S. Ct. 1, 3 (2014); Bailey, 271 F.3d at 655.
Moreover, “clearly established Federal law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S. Ct. 38
(2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have
appeared to the Michigan state courts in light of Supreme Court precedent at the time of the statecourt adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene,
132 S. Ct. at 44).
A federal habeas court may issue the writ under the “contrary to” clause if the state
court applies a rule different from the governing law set forth in the Supreme Court’s cases, or if it
decides a case differently than the Supreme Court has done on a set of materially indistinguishable
facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas
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petitioner is required to ‘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.’” Woods, 2015 WL 1400852, at
*3 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, “[w]here the precise
contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a
prisoner’s claims.” White v. Woodall, 572 U.S. ___, 134 S. Ct. 1697, 1705 (2014) (quotations marks
omitted).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy,
160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is
presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir.
2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state
appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v.
Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989). Applying the foregoing standards under the AEDPA,
I find that Petitioner is not entitled to relief.
Discussion
A.
Petitioner’s competence
A criminal defendant who is incompetent may not be tried. Godinez v. Moran, 509
U.S. 389, 396 (1993); Drope v. Missouri, 420 U.S. 162, 171 (1975). The test for a defendant’s
competency to stand trial is “whether he has sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding – and whether he has a rational as well as factual
understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 411 (1960);
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see also Godinez, 509 U.S. at 396; United States v. Denkins, 367 F.3d 537, 547 (6th Cir. 2004)
(quoting United States v. Ford, 184 F.3d 566, 580 (6th Cir. 1999). A court’s failure to hold a proper
hearing where substantial evidence exists of the defendant’s incompetency violates the defendant’s
due process right to a fair trial. Mackey v. Dutton, 217 F.3d 399, 411 (6th Cir. 2000). “[T]he
standard . . . for requiring competency hearings prior to trial or the entry of a guilty plea is not merely
whether extant evidence raises ‘doubt’ as to the defendant’s capacity to stand trial, but rather whether
evidence raises a ‘bona fide doubt’ as to a defendant’s competence.” Warren v. Lewis, 365 F.3d 529,
533 (6th Cir. 2004). In reaching its determination regarding competency, a court should consider
evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion
concerning his competence. Mackey, 217 F.3d at 411.
With regard to this issue, the Michigan Court of Appeals stated:
Absent evidence that raises a bona fide doubt as to a criminal defendant's
competence, the defendant is presumed competent to stand trial. MCL 330.2020(1);
[People v.] Harris, 185 Mich.App. at 102, 460 N.W.2d 239. Criminal proceedings
may not proceed against an incompetent defendant. MCL 330.2022(1). “The issue
of a defendant’s competence to stand trial may be raised by either party or the court.”
Harris, 185 Mich.App. at 102, 460 N.W.2d 239; see also MCL 330.2024. “Upon a
showing that the defendant may be incompetent to stand trial, the court shall order
the defendant to undergo an examination....” MCL 330.2026(1).
The record reflects that while defendant’s first-appointed trial counsel filed
a motion requesting that defendant be referred to the forensic center for evaluation,
defendant vehemently denied that he suffered from a mental illness and argued that
he should not be referred to the forensic center. As such, defendant waived this issue
for appeal. People v. Carter, 462 Mich. 206, 215–216, 612 N.W.2d 144 (2000). But
even if defendant had not waived this issue, based on our review of the record, we
find that the trial court was not presented with any evidence that raised a bona fide
doubt as to defendant’s competency to stand trial. Moreover, contrary to defendant’s
argument, defendant did not exhibit any signs that he suffered from a mental illness.
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(Mich. Ct. of Appeals Op., ECF No. 28-17, PageID.873-74.) The Michigan Court of Appeals’
resolution reasonably applied the standard called for by clearly established federal law. There was
simply no record evidence to support Petitioner’s referral to the forensic center. Indeed, it would be
virtually impossible to conclude that Petitioner did not enjoy a reasonable degree of rational
understanding of the proceedings where Petitioner represented himself sufficiently to “hang” the
jury, despite video evidence of the larceny, eyewitness testimony regarding the use of a knife, and
the presence of the knife where the police found Petitioner.
B.
Waiver of right to counsel
Petitioner contends that the trial court should not have permitted him to represent
himself. Petitioner principally complains that the trial court failed to comply with MICH. CT. R.
6.005 regarding the initial waiver of counsel and waiver at subsequent proceedings. The court of
appeals determined that the trial court had substantially complied with the rule and that state law
requires nothing more. (MCAO, ECF No. 28-17, PageID.873-75) (“A trial court’s failure to comply
with each of these requirements will not render an otherwise valid waiver invalid, as long as the
court has substantially complied. . . . We similarly conclude that the trial court substantially
complied with MCR 6.005(D).”)
Petitioner’s claim that the court’s consideration of his waiver of counsel did not meet
the requirements of MICH. CT. R. 6.005 is not cognizable on habeas review. “[A] federal court may
issue the writ to a state prisoner ‘only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.’” Wilson v. Corcoran, 562 U.S. 1, 5 (2010)
(quoting 28 U.S.C. § 2254(a)). A habeas petition must “state facts that point to a ‘real possibility
of constitutional error.’” Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory
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Committee Notes on Rule 4, RULES GOVERNING HABEAS CORPUS CASES). It is not the province of
a federal habeas court to re-examine state-law determinations on state-law questions. Bradshaw v.
Richey, 546 U.S. 74, 76 (2005); Estelle v. McGuire, 502 U.S. 62, 68 (1991). The decision of the
state courts on a state-law issue is binding on a federal court. See Wainwright v. Goode, 464 U.S.
78, 84 (1983). As a consequence, any habeas claim based on violation of MICH. CT. R. 6.005 is
without merit.
Although violation of a state court rule does not establish a habeas claim, there may
still be constitutional issues with regard to the court’s acceptance of Petitioner’s request for selfrepresentation. The Sixth Amendment provides that a criminal defendant shall have the right to the
assistance of counsel for his defense. U.S. Const. amend. VI. At issue here is a corollary to that
right, the right to self-representation. Adams v. U.S. ex rel. McCann, 317 U.S. 269, 279 (1942) (“The
right to assistance of counsel and the correlative right to dispense with a lawyer’s help are not legal
formalisms.”). The clearly established federal law regarding self-representation is expressed in two
Supreme Court cases: Faretta v. California, 422 U.S. 806 (1975), and Martinez v. Ct. of Appeal of
Cal., Fourth App. Dist., 528 U.S. 152 (2000).
In Faretta, the Court found support for the right of self-representation in the structure
of the Sixth Amendment right to the assistance of counsel:
The Sixth Amendment does not provide merely that a defense shall be made
for the accused; it grants to the accused personally the right to make his defense. It
is the accused, not counsel, who must be ‘informed of the nature and cause of the
accusation,’ who must be ‘confronted with the witnesses against him,’ and who must
be accorded ‘compulsory process for obtaining witnesses in his favor.’ Although not
stated in the Amendment in so many words, the right to self-representation—to make
one’s own defense personally—is thus necessarily implied by the structure of the
Amendment. The right to defend is given directly to the accused; for it is he who
suffers the consequences if the defense fails.
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The counsel provision supplements this design. It speaks of the ‘assistance’
of counsel, and an assistant, however expert, is still an assistant. The language and
spirit of the Sixth Amendment contemplate that counsel, like the other defense tools
guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ
of the State interposed between an unwilling defendant and his right to defend
himself personally. To thrust counsel upon the accused, against his considered wish,
thus violates the logic of the Amendment. In such a case, counsel is not an assistant,
but a master; and the right to make a defense is stripped of the personal character
upon which the Amendment insists. It is true that when a defendant chooses to have
a lawyer manage and present his case, law and tradition may allocate to the counsel
the power to make binding decisions of trial strategy in many areas. . . . This
allocation can only be justified, however, by the defendant’s consent, at the outset,
to accept counsel as his representative. An unwanted counsel ‘represents’ the
defendant only through a tenuous and unacceptable legal fiction. Unless the accused
has acquiesced in such representation, the defense presented is not the defense
guaranteed him by the Constitution, for, in a very real sense, it is not his defense.
Faretta, 422 U.S. at 819-821 (footnotes and citations omitted). Although the Court recognized a
criminal defendant’s right to self-representation, it acknowledged that the right was a qualified one.
The Constitutional mandate to provide counsel to a criminal defendant is premised upon the fact that
“[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel’s
guidance than by their own unskilled efforts.” Id. at 834. Because a criminal defendant representing
himself relinquishes that benefit, his waiver must be “‘knowingly and intelligently’” made. Id. at
835. Moreover, the right to self-representation must yield to “‘the dignity of the courtroom.’” Id.
at 834, n. 46. It is not a license to ignore the rules of procedure or engage in “obstructionist
misconduct.” Id.
In Martinez, 528 U.S. 152, the Supreme Court concluded that the right of selfrepresentation did not extend to appeals. In reaching its conclusion, the Supreme Court commented
on the scope of the right of self-representation established in Faretta, stating:
As the Faretta opinion recognized, the right to self-representation is not
absolute. The defendant must “‘voluntarily and intelligently’” elect to conduct his
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own defense, and most courts require him to do so in a timely manner. He must first
be “made aware of the dangers and disadvantages of self-representation.” A trial
judge may also terminate self-representation or appoint “standby counsel”- even over
the defendant’s objection - if necessary. We have further held that standby counsel
may participate in the trial proceedings, even without the express consent of the
defendant, as long as that participation does not “seriously undermin[e]” the
“appearance before the jury” that the defendant is representing himself. Additionally,
the trial judge is under no duty to provide personal instruction on courtroom
procedure or to perform any legal “chores” for the defendant that counsel would
normally carry out. Even at the trial level, therefore, the government’s interest in
ensuring the integrity and efficiency of the trial at times outweighs the defendant's
interest in acting as his own lawyer.
Martinez, 528 U.S. at 161-162 (citations and footnote omitted).
Neither the trial court nor the state appellate court referenced Faretta or Martinez in
evaluating Petitioner’s waiver of the right to counsel. Instead, the state courts relied on People v.
Anderson, 247 N.W.2d 857 (Mich. 1976). In Anderson the Michigan Supreme Court established
three requirements that must be met before a criminal defendant in Michigan can proceed pro se:
First, the request must be unequivocal . . . . Second, once the defendant has
unequivocally declared his desire to proceed Pro se the trial court must determine
whether defendant is asserting his right knowingly, intelligently and
voluntarily. . . . The third and final requirement is that the trial judge determine that
the defendant’s acting as his own counsel will not disrupt, unduly inconvenience and
burden the court and the administration of the court’s business.
Anderson, 247 N.W.2d at 859-860.4 The Michigan Supreme Court drew the requirements directly
from the circumstances that swayed the Faretta Court to recognize the right of self-representation.
Id. at 859 (“[T]he [Faretta] Court carefully noted the circumstances under which Faretta was
deprived of his constitutional right to conduct his own defense. The circumstances, affirmatively
shown by the record, involved a clear and unequivocal request, weeks before trial, by a literate,
4
In moving to compel Petitioner to accept representation, the prosecutor did not suggest that Petitioner’s selfrepresentation request was equivocal or that it was anything other than knowing, intelligent, and voluntary. The
prosecutor claimed only that Petitioner would disrupt the proceedings.
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competent, and understanding individual.”) Thus, considering Petitioner’s request for selfrepresentation under Anderson is consistent with and not contrary to clearly established federal law.
Here, the trial court considered and ruled on Petitioner’s request for the first time on
May 27, 2008, the first day scheduled for trial. Petitioner raised his dissatisfaction with Attorney
Robinson. The court informed Petitioner that Mr. Robinson was the appointed attorney but that
Petitioner could represent himself. The court cautioned Petitioner about representing himself, and
then asked: “So you want to represent yourself?” (Id. at PageID.506.) Petitioner replied: “Yes I do.”
(Id.) Mr. Robinson remained as standby counsel.
The issue came up again on the first day of the second trial. It was not brought up by
Petitioner; the prosecutor asked the court to require Petitioner to proceed with Attorney Robinson’s
representation. (TTII V1, ECF No. 28-9, PageID.707.) Attorney Robinson, on behalf of Petitioner,
reported that Petitioner wanted to continue to represent himself and that he had already proven
himself in the earlier trial. (Id. at PageID.707-08.) The court agreed. (Id.)
The court of appeals found that there was no ambiguity in Petitioner’s request to
represent himself; thus, the trial court did not err when it determined Petitioner’s request was
unequivocal. (MCAO, ECF No. 28-17, PageID.875.) The court of appeals also found that the trial
court informed Petitioner of the inherent risks of self-representation and that Petitioner was fully
aware of the charges and the penalties he faced. (Id.) Clearly established federal law requires
nothing more. As the Sixth Circuit stated in Glass v. Pineda, 635 F. App’x 207 (6th Cir. 2015):
[T]he Supreme Court “ha[s] not ... prescribed any formula or script to be read to a
defendant who states that he elects to proceed without counsel. The information a
defendant must possess in order to make an intelligent election ... will depend on a
range of case-specific factors, including the defendant’s education or sophistication,
the complex or easily grasped nature of the charge, and the stage of the proceeding.”
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Iowa v. Tovar, 541 U.S. 77, 88 (2004). Indeed, the inquiry “is whether [petitioner's]
waiver was knowing and voluntary,” so we look to “what the defendant understood
—not what the court said or understood.” Akins, 648 F.3d at 398 (quoting United
States v. Erskine, 355 F.3d 1161, 1169–70 (9th Cir. 2004)). And “the burden of proof
rests upon [the defendant] to establish that he did not competently and intelligently
waive his constitutional right to assistance of Counsel.” Johnson, 304 U.S. at
468–69; see also Akins, 648 F.3d at 395.
Glass, 635 F. App’x at 214 (parallel citations omitted). Moreover, in light of the state court of
appeals’ findings, Petitioner must meet his burden with clear and convincing evidence. He has
offered no such evidence here. Accordingly, his habeas claim is without merit.
C.
Insufficient evidence
A § 2254 challenge to the sufficiency of the evidence is governed by the standard set
forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979), which 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.” This standard of
review recognizes the trier of fact’s responsibility to resolve reasonable conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Issues
of credibility may not be reviewed by the habeas court under this standard. See Herrera v. Collins,
506 U.S. 390, 401 02 (1993). Rather, the habeas court is required to examine the evidence
supporting the conviction, in the light most favorable to the prosecution, with specific reference to
the elements of the crime as established by state law. Jackson, 443 U.S. at 324 n.16; Allen v.
Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).
The Jackson v. Virginia standard “gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Moreover, because both
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the Jackson standard and AEDPA apply to Petitioner’s claims, “‘the law commands deference at two
levels in this case: First, deference should be given to the trier of fact’s verdict, as contemplated by
Jackson; second, deference should be given to the Michigan [appellate court’s] consideration of the
trier of fact’s verdict, as dictated by AEDPA.’” Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)
(en banc) (quoting Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008)). This standard erects “a
nearly insurmountable hurdle” for petitioners who seek habeas relief on sufficiency of the evidence
grounds. Id. at 534 (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).
The Michigan Court of Appeals resolved Petitioner’s sufficiency challenge as
follows:
After reviewing the evidence in a light most favorable to the prosecution . . .
we conclude that a rational trier of fact could have reasonably concluded beyond a
reasonable doubt from the evidence adduced that defendant was guilty of unarmed
and armed robbery.
The elements of unarmed robbery are: “(1) a felonious taking of property
from another, (2) by force or violence or assault or putting in fear, and (3) being
unarmed.” . . . The elements of armed robbery are: “(1) an assault, and (2) a
felonious taking of property from a victim’s person or presence, and (3) the defendant
is armed with a weapon described in the statute.” . . . Both victims testified that
defendant concealed several items in his pockets without paying for them and
attempted to the leave the store. The victims testified that defendant resorted to
violence when they tried to prevent him from leaving the premises with the property.
There was also evidence that defendant had possessed a knife at the time. The
prosecution presented video and photographic evidence that corroborated the victims’
testimony. Any possible inconsistencies in the testimony went to the credibility of
the witnesses and the weight and that should be afforded their testimony. In deciding
whether to grant defendant’s motion for a directed verdict, the trial court properly left
these matters to the trier of fact.
(MCAO, ECF No. 28-17, PageID.877 (citations omitted).) The court of appeals’ resolution is not
contrary to or an unreasonable application of clearly established federal law. Petitioner does not
even make that claim. Instead, Petitioner’s argument with regard to sufficiency depends entirely on
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his contention that the prosecution witnesses lied. That sort of credibility determination is not
cognizable on habeas review.
D.
Ineffective assistance of counsel
In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court
established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To
establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel’s
performance fell below an objective standard of reasonableness; and (2) that counsel’s deficient
performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome.
A court considering a claim of ineffective assistance must “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The
defendant bears the burden of overcoming the presumption that the challenged action might be
considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also
Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel’s strategic decisions
were hard to attack). The court must determine whether, in light of the circumstances as they existed
at the time of counsel’s actions, “the identified acts or omissions were outside the wide range of
professionally competent assistance.” Strickland, 466 U.S. at 690. Even if a court determines that
counsel’s performance was outside that range, the defendant is not entitled to relief if counsel’s error
had no effect on the judgment. Id. at 691.
In resolving Petitioner’s claim of ineffective assistance of counsel the Michigan Court
of Appeals stated:
Defendant argues that he is entitled to a new trial because he was deprived of the
effective assistance of counsel. Again, we find that defendant waived his right to
counsel. Therefore, he was not entitled to the effective assistance of counsel. Nor
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was he entitled to effective standby counsel. People v Kevorkian, 248 Mich App
373, 425-426; 639 NW2d 291 (2001). Defendant’s argument in this regard must fail.
(MCAO, ECF No. 28-17, PageID.878.) That determination is not contrary to or an unreasonable
application of clearly established federal law. In Faretta, 422 U.S. at 806, the Court stated: “[A]
defendant who elects to represent himself cannot thereafter complain that the quality of his own
defense amounted to a denial of effective assistance of counsel.” Id. at 834. The Sixth Circuit has
recognized that “[t]o the extent [stand-by counsel] failed to act during trial, [the criminal defendant]
merely suffered the consequences of this decision to proceed pro se.” Wilson v. Parker, 515 F.3d
682, 696 (6th Cir. 2008). That is also true with respect to the affirmative acts undertaken by stand-by
counsel where there is “hybrid representation.” Marcusse v. United States, No. 1:09-cv-913, 2012
WL 5306258, at *21 (W.D. Mich. Oct. 26, 2012) (citing Blanton v. Thaler, No. 3:08-cv-1081-O,
2010 WL 5538408, at *3 (N.D.Tex. Dec.7, 2010) (holding that, where counsel and defendant split
some of the responsibilities at trial, defendant nevertheless remained pro se and could not challenge
standby counsel’s effectiveness)).
Petitioner also contends that Attorneys Reynolds and Robinson were ineffective
during the pretrial period when Petitioner was represented. In support of that contention, Petitioner
offers only conclusory statements of failure to investigate or prepare for trial. There is nothing in
the record to suggest that counsel were unprepared.5 Put simply, for the period of time before his
first trial, while he was represented, Petitioner has failed to demonstrate that counsel’s performance
fell short or that Petitioner was prejudiced thereby.
5
The heart of Petitioner’s complaint appears to be that counsel did not investigate whether surveillance cameras
at nearby businesses or the traffic light at the intersection of Jolly and Cedar might have contained exculpatory video of
the fracas in the Rite Aid parking lot. It is sheer speculation on Petitioner’s part that such videos exist or that they are
indeed exculpatory. Moreover, Petitioner fails to explain why he took no steps to pursue the issue on his own between
his first and second trial.
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E.
Prosecutorial misconduct and judicial bias
Petitioner claims that the prosecutor acted inappropriately by knowingly presenting
false testimony and by making several arguments in closing that were not supported by the evidence.
Petitioner claims that the trial court judge acted inappropriately by failing to treat Petitioner with
respect. Petitioner’s procedural default precludes habeas review of both claims.
When a state-law default prevents further state consideration of a federal issue, the
federal courts ordinarily are precluded from considering that issue on habeas corpus review. See Ylst
v. Nunnemaker, 501 U.S. 797, 801 (1991); Engle v. Isaac, 456 U.S. 107 (1982). To determine
whether a petitioner procedurally defaulted a federal claim in state court, the Court must consider
whether: (1) the petitioner failed to comply with an applicable state procedural rule; (2) the state
court enforced the rule so as to bar the claim; and (3) the state procedural default is an “independent
and adequate” state ground properly foreclosing federal habeas review of the federal constitutional
claim. See Hicks v. Straub, 377 F.3d 538, 551 (6th Cir. 2004); accord Lancaster v. Adams, 324 F.3d
423, 436-37 (6th Cir. 2003); Greer v. Mitchell, 264 F.3d 663, 672 (6th Cir. 2001); Buell v. Mitchell,
274 F.3d 337, 348 (6th Cir. 2001). In determining whether a state procedural rule was applied to bar
a claim, a reviewing court looks to the last reasoned state court decision disposing of the claim. See
Ylst, 501 U.S. at 803; Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010).
The Michigan Court of Appeals expressly relied on Michigan’s contemporaneous
objection rule in denying Petitioner’s prosecutorial misconduct and judicial bias claims.6 It is clear
6
The court of appeals noted the Petitioner had failed to preserve either issue for appellate review; therefore, that
court’s review was limited to a “plain error” analysis. (MCAO, ECF No. 28-17, PageID.878.) In this circuit, “plain error
review does not constitute a waiver of state procedural default rules.” Seymour v. Walker, 224 F.3d 542 (6th Cir. 2000)
(citations omitted); Scott v. Mitchell, 209 F.3d 854, 866-68 (6th Cir. 2000); see also Coe v. Bell, 161 F.3d 320, 330 (6th
Cir. 1998) (state court’s alternative holding on the merits does not require federal court to disregard the procedural bar);
McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991) (same); Paprocki v. Foltz, 869 F.2d 281, 284-85 (6th Cir. 1989)
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that the contemporaneous objection rule was well-established at the time of Petitioner’s trial. See,
e.g., People v. Kelly, 378 N.W.2d 365, 369-70 (Mich. 1985). A rule designed to arm trial judges
with the information needed to rule reliably “serves a governmental interest of undoubted
legitimacy.” Lee v. Kemna, 534 U.S. 362, 385 (2002). Petitioner’s failure to comply with the state’s
independent and adequate state procedural rule, i.e., making a contemporaneous objection, caused
him to default his claims in state court. See Wainwright v. Sykes, 433 U.S. 72, 86 88 (1977); Taylor
v. McKee, 649 F.3d 446, 450 (6th Cir. 2011); Awkal v. Mitchell, 613 F.3d 629, 648 (6th Cir. 2010).
If a petitioner procedurally defaulted his federal claim in state court, the petitioner
must demonstrate either (1) cause for his failure to comply with the state procedural rule and actual
prejudice flowing from the violation of federal law alleged in his claim, or (2) that a lack of federal
habeas review of the claim will result in a fundamental miscarriage of justice. See House v. Bell, 547
U.S. 518, 536 (2006); Murray v. Carrier, 477 U.S. 478, 495 (1986); Hicks, 377 F.3d at 551-52. The
miscarriage-of-justice exception only can be met in an “extraordinary” case where a prisoner asserts
a claim of actual innocence based upon new reliable evidence. House, 547 U.S. at 536. A habeas
petitioner asserting a claim of actual innocence must establish that, in light of new evidence, it is
more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable
doubt. Id. (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)).
To show cause sufficient to excuse a failure to raise claims on direct appeal, Petitioner
must point to “some objective factor external to the defense” that prevented him from raising the
issue when appropriate. Murray, 477 U.S. at 488; see McCleskey v. Zant, 499 U.S. 467, 497 (1991).
(claim is defaulted even where the state court may excuse the default for “manifest injustice”); Federico v. Yukins, No.
93-2424, 1994 WL 601408, at *3-*4 (6th Cir. Nov. 2, 1994) (same, for “miscarriage of justice”).
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Petitioner does not offer cause for his procedural default, but the cause is apparent. Petitioner was
not sufficiently knowledgeable in the law to preserve appellate issues by making contemporaneous
objections. That is not sufficient. See Hannah v. Conley, 49 F.3d 1193, 1197 (6th Cir. 1995) (“a
petitioner’s pro se status and ignorance of his rights do not constitute cause”). Where a petitioner
fails to show cause, the court need not consider whether he has established prejudice. See Engle, 456
U.S. at 134 n.43; Leroy v. Marshall, 757 F.2d 94, 100 (6th Cir. 1985).
Petitioner also has not demonstrated that manifest injustice would result because he
has not shown that any constitutional error “probably” resulted in the conviction of one who was
actually innocent. Schlup v. Delo, 513 U.S. 298, 322 (1995) (citing Murray, 477 U.S. at 495). This
requires a showing “that “in light of the new evidence, no juror, acting reasonably, would have voted
to find him guilty beyond a reasonable doubt.’” Coleman v. Mitchell, 244 F.3d 533, 540 (6th Cir.
2001) (quoting Schlup, 513 U.S. at 329). Accordingly, I conclude that Petitioner’s prosecutorial
misconduct and judicial bias claims are procedurally defaulted.
Conclusion
In light of the foregoing, the Court will deny Petitioner’s application because it fails
to raise a meritorious federal claim.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit
Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability.
Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must “engage in a reasoned
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assessment of each claim” to determine whether a certificate is warranted. Id. at 467. Each issue
must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529
U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of
Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the
certificate, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id. “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 applying
this standard, the Court may not conduct a full merits review, but must limit its examination to a
threshold inquiry into the underlying merit of Petitioner’s claims. Id.
The Court finds that reasonable jurists could not conclude that this Court’s denial of
Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
of appealability.
A Judgment and Order consistent with this Opinion will be entered.
Dated:
August 23, 2016
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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