Miller #215071 v. Prelesnik

Filing 6

OPINION; Judgment and Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KERRY D. MILLER,
Petitioner,
v.

Case No. 1:12-cv-370
Honorable Janet T. Neff

JOHN PRELESNIK,
Respondent.
_______________________________/
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether “it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.”
Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be
summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court
has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4
includes those petitions which raise legally frivolous claims, as well as those containing factual
allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir.
1999). After undertaking the review required by Rule 4, the Court concludes that the petition must
be dismissed because it fails to raise a meritorious federal claim.

Factual Allegations
Petitioner Kerry D. Miller presently is incarcerated at the Richard A. Handlon
Correctional Facility. Petitioner originally was charged with five felony counts: (1) producing child
sexually abusive materials, MICH. COMP. LAWS § 750.145c(2); (2) using a computer to commit a
felony with maximum imprisonment of 20 years to life, MICH. COMP. LAWS § 752.797(3)(f);
(3) possessing child sexually abusive material, MICH. COMP. LAWS § 750.145c(4); (4) using a
computer to commit a felony with maximum imprisonment of four to ten years, MICH. COMP. LAWS
§ 732.797(3)(d); and (5) being a fourth felony offender, MICH. COMP. LAWS § 769.12. In exchange
for dismissal of the remaining counts, Petitioner pleaded guilty on August 23, 2010 to count four.
The charges arose out of separate criminal conduct that occurred on August 13, 2008.
On that date, Mary Ann Buzzitta filed a police complaint alleging that Petitioner had assaulted and
abducted her after an act of prostitution. According to the report, Petitioner came to Buzzitta’s
apartment as part of a bi-monthly prostitution arrangement. Buzzitta said that Petitioner offered her
extra money if she agreed to be restrained to the bed with chains and padlocks. She agreed. After
binding her, Petitioner covered Buzzitta’s mouth with duct tape, something Buzzitta had not agreed
to. When Buzzitta began to struggle, Petitioner struck her in the side of the face with his fist and
went to another bedroom and retrieved a small, gray pistol that Buzzitta kept. Petitioner held the
gun in his hand during the sex act. Afterward, holding a folding knife against her ribs, Petitioner
led Buzzitta to his car and transported her to the Clarksville exit of I-96, where he originally planned

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to leave her. He subsequently drove her home, but threatened to shoot her if she called the police.
(8/13/08 Police Report, docket #1-1, Page ID#155.)1
On September 8, 2008, police obtained a search warrant for Petitioner’s home, which
authorized a search for and seizure of a small gray/black pistol. (9/8/08 Warrant, docket #1-1, Page
ID#147.) During the course of their search, officers found a red three-ring binder. When the officer
opened the binder to look for the gun, he saw a page protector with what appeared to be child
pornography printed from the internet. The officers also noted the presence of a Compaq computer
and Epson printer. Based on this information, the officers sought and obtained a warrant on
September 9, 2008 to search for physical evidence, including the computer and the binder,
connecting Petitioner to the crime of possessing or creating child sexually abusive material. (9/9/08
Warrant and Aff. in Supp., docket #1-1, Page ID#139-42.) The search warrant return listed three
notebooks taken from under the bed in the southwest bedroom and the Compaq computer from the
dining room. (Warrant Return, Page ID#168.) After the computer was taken into evidence, a search
of computer files revealed dozens of photographs of minors in sexual situations. (List of data files,
Page ID##66-114.) In addition, a number of fingerprints belonging to Petitioner were found on the
plastic sleeves covering the printed child sexually abusive materials. (Prelim. Exam Tr., Page
ID#121.)
Petitioner’s first trial attorney represented him at the preliminary examination, held
May 20, 2009. During the preliminary examination, counsel moved to suppress the evidence on the
ground that the evidence of child sexually abusive materials contained in the red binder was outside

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Based on these facts, Petitioner was charged and, following a jury trial, convicted of unlawful imprisonment,
MICH. COMP. LAWS § 750.349b, and first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b(1)(e). On July
16, 2009, Petitioner was sentenced as a fourth habitual offender, MICH. COMP. LAWS § 769.12, to respective prison terms
of 15 to 30 years and 26 to 40 years.

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the scope of the first search warrant for the gun. The court held that, as a factual matter, a binder
was of sufficient size to have concealed a gun. As a consequence, the opening of the binder did not
exceed the scope of the first search warrant. (Id., Page ID#121.) Following the preliminary
examination, Petitioner was bound over for trial. Defense counsel filed a motion for discovery on
June 2, 2009. (Cir. Ct. Docket Sheet, Page ID#130.) Shortly thereafter, on June 9, 2009, Petitioner
attempted to file a pro se motion to suppress, which was denied on June 10, 2009 because Petitioner
was represented by counsel and therefore not permitted to file pro se motions. (Id.) On July 17,
2009, defense counsel moved to withdraw from the case. (Id.) After a hearing held August 14,
2009, the motion was granted and a new attorney was appointed. (Id.) On September 1, 2009,
Petitioner rejected a plea agreement, and the case was set for trial. On September 25, 2009, newly
appointed counsel filed a second motion for discovery, delineating what already had been received
and what remained outstanding. (Id., Page ID#132; Mot. for Discovery, Page ID##180-81.) That
same date, counsel also filed a demand for the preliminary examination transcript and a motion to
extend the time for motions. (Id., Page ID#132.) The motion was adjourned multiple times between
October 23, 2009 and March 2010. At a hearing on March 4, 2010, the court issued an order
allowing Petitioner’s expert to inspect the computer consistent with a Contraband Court Order. (Id.,
Page ID##133-34; Stip. & Ord. Mar. 4, 2010, Page ID#64; Contraband Ct. Ord., Page ID##61-62.)
Thereafter, on July 15, 2009, defense counsel filed a motion to compel access to the computer by
Petitioner’s expert. (Mot. to Compel, Page ID##56-57.) The court granted the motion to compel,
directing inspection of the computer during the week of August 2, 2010. (7/27/10 Cir. Ct. Ord.,
Page ID#151.)

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On August 23, 2010, the date set for trial, Petitioner pleaded guilty to Count 4, and
the remaining three charges were dismissed. (Id., Page ID#133; Plea Tr., Page ID#125-26.) On
September 9, 2010, Petitioner filed a motion to suppress evidence, a motion to represent himself,
and a motion to withdraw his plea. Defense counsel filed objections to the presentence report and
guidelines scoring. On September 29, 2010, the date scheduled for sentencing, the court granted
Petitioner’s motion to represent himself and dismissed his attorney. The court also denied
Petitioner’s motion to withdraw his plea and his motion to suppress. The court then sentenced
Petitioner to a prison term of three years and two months to seven years. (See Cir. Ct. Docket Sheet,
Page ID##135-36.)
Petitioner filed a notice of appeal, and the State Appellate Defender’s Office was
appointed as counsel on October 11, 2010. (Id.) According to the brief in support of the habeas
petition, appellate counsel advised Petitioner to dismiss his appeal based on a lack of appellate issues
and the favorable plea agreement. Petitioner signed an affidavit in support of the withdrawal of
appellate counsel and the dismissal of the appeal. Counsel then forwarded Petitioner the transcripts.
After reviewing the documents, Petitioner filed a delayed application for leave to appeal raising the
same three issues presented in his habeas petition:
I.

THE SEARCH WARRANT HAS THE WRONG ADDRESS AND THE
WRONG DISCRIPTION [SIC] OF THE RESIDENCE, EVIDENCE
TAKEN OUTSIDE THE SCOPE OF THE WARRANT, FALSE
STATEMENTS TO OBTAIN A SEARCH WARRANT. MR. MILLER IS
ENTITLED TO A NEW TRIAL.

II.

PROSECUTION MISCONDUCT BY NOT ALLOWING MR. MILLER’S
EXPERT WITNESS TO EXAMINE THE COMPUTER, BY WITH
HOLDING DISCOVERY REQUEST. MR. MILLER IS ENTITLED TO A
NEW TRIAL.

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III.

INEFFECTIVE ASSISTANCE OF COUNSEL BY ALLOWING THE
PROSECUTION TO NOT COMPLY WITH A COURT ORDER, BY NOT
DILIGENTLY GETTING DISCOVERY SO THAT COUNSEL COULD
REPRESENT MILLER TO HIS FULLEST. MR. MILLER IS ENTITLED
TO A NEW TRIAL.

(Br. in Supp. of Pet., docket #1, Page ID#14.) On October 13, 2011, the court of appeals denied
leave to appeal for lack of merit in the grounds presented. Petitioner sought leave to appeal the same
issues to the Michigan Supreme Court, which denied leave to appeal on March 5, 2012. Petitioner
filed the instant habeas petition on or about April 12, 2012.2
Discussion
This action is governed by the Antiterrorism and Effective Death Penalty Act, 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). An application for
writ of habeas corpus on behalf of a person who is incarcerated pursuant 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). Where, as

2

Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing
to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner dated his application on April 12,
2012, and it was received by the Court on April 16, 2012. Thus, it must have been handed to prison officials for mailing
at some time between April 12 and 16. For purposes of this opinion, the Court has given Petitioner the benefit of the
earliest possible filing date. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner
signs the document is deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins v. Saunders,
206 F. App’x 497, 498 n.1 (6th Cir. 2006)).

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here, the state appellate court has issued a summary affirmance, it is presumed to have been made
on the merits, and a federal court cannot grant relief unless the state court’s result is not in keeping
with the strictures of the AEDPA. See Harrington v. Richter, 131 S. Ct. 770, 784 (2011).
Petitioner pleaded guilty to the offense in issue. It has long been the case that a valid
guilty plea bars habeas review of most non-jurisdictional claims alleging antecedent violations of
constitutional rights. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Among claims not barred
are those that challenge “the very power of the State to bring the defendant into court to answer the
charge against him,” Blackledge v. Perry, 417 U.S. 21, 30 (1974), and those that challenge the
validity of the guilty plea itself. See Hill v. Lockhart, 474 U.S. 52, 58 (1985); Haring v. Prosise,
462 U.S. 306, 320 (1983); Tollett, 411 U.S. at 267. A plea not voluntarily and intelligently made
has been obtained in violation of due process and is void. See McCarthy v. United States, 394 U.S.
459, 466 (1969). Petitioner’s claims do not challenge the power of the state to bring him into court.
Thus, the only means available for challenging his conviction is to claim that his plea is invalid, i.e.,
it was not knowingly and voluntarily entered into. See Mabry v. Johnson, 467 U.S. 504, 508 (1984)
(“It is well-settled that a voluntary and intelligent plea of guilty made by an accused person, who
has been advised by competent counsel, may not be collaterally attacked.”).
A constitutionally valid guilty plea has several requirements.

The defendant

pleading guilty must be competent, see Brady v. United States, 397 U.S. 742, 756 (1970), and must
have notice of the nature of the charges against him, see Henderson v. Morgan, 426 U.S. 637, 645
n.13 (1976); Smith v. O’Grady, 312 U.S. 329, 334 (1941). The plea must be entered “voluntarily,”
i.e., not be the product of “actual or threatened physical harm, or . . . mental coercion overbearing
the will of the defendant” or of state-induced emotions so intense that the defendant was rendered

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unable to weigh rationally his options with the help of counsel. Brady, 397 U.S. at 750;
Machibroda v. United States, 368 U.S. 487, 493 (1962) (“A guilty plea, if induced by promises or
threats which deprive it of the character of a voluntary act, is void.”). The defendant must also
understand the consequences of his plea, including the nature of the constitutional protection he is
waiving. Henderson, 426 U.S. at 645 n.13; Brady, 397 U.S. at 755; Machibroda, 368 U.S. at 493
(“Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall
not be accepted unless made voluntarily after proper advice and with full understanding of the
consequences.”) (internal quotations and citation omitted). Finally, the defendant must have
available the advice of competent counsel. Tollett, 411 U.S. at 267-68; Brady, 397 U.S. at 756;
McMann v. Richardson, 397 U.S. 759, 771 & n.14 (1970). The advice of competent counsel exists
as a safeguard to ensure that pleas are voluntarily and intelligently made. Cf. Henderson, 426 U.S.
at 647 (“[I]t may be appropriate to presume that in most cases defense counsel routinely explain the
nature of the offense in sufficient detail to give the accused notice of what he is being asked to
admit.”); Brady, 397 U.S. at 754 (suggesting that coercive actions on the part of the state could be
dissipated by counsel).
Petitioner, however, makes no claim that his plea was not knowing, intelligent or
voluntary. He does not contend that his plea was coerced. Instead, Petitioner merely argues that
certain matters preceding his decision to plead guilty should have been pursued or resolved
differently. As the Supreme Court noted in Tollett:
A guilty plea, voluntarily and intelligently entered, may not be vacated
because the defendant was not advised of every conceivable constitutional plea in
abatement he might have to the charge, no matter how peripheral such a plea might
be to the normal focus of counsel’s inquiry. And just as it is not sufficient for the
criminal defendant seeking to set aside such a plea to show that his counsel in
retrospect may not have correctly appraised the constitutional significance of certain
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historical facts, McMann, supra, it is likewise not sufficient that he show that if
counsel had pursued a certain factual inquiry such a pursuit would have uncovered
a possible constitutional infirmity in the proceedings.
411 U.S. at 267. Because Petitioner fails entirely to allege that his plea was involuntary or
unknowing, he cannot demonstrate entitlement to habeas relief.3
Moreover, even if Petitioner’s claims were not barred by the entry of his guilty plea,
all of those claims are either meritless or noncognizable on habeas review.
A.

Search Warrant

In his first habeas ground, Petitioner contends that the search warrant was defective
in its description of Petitioner’s residence, because it listed Petitioner’s address as a single-family
dwelling, despite the fact that it was one apartment in a multi-residence building. He also contends
that the affidavit in support of the search warrant contained false statements. In addition, he
suggests that the police officers exceeded the scope of the first search warrant, leading to their
discovery of the contents of the red binder, which in turn supported their second search warrant. He
therefore argues that the items seized in the second search should have been rejected as inadmissible.
Petitioner’s claim is barred by the doctrine of Stone v. Powell, 428 U.S. 465 (1976);
see also Queen v. Scroggy, 99 F.3d 1302, 1332 (6th Cir. 1996) (noting that it is well-settled that
Stone v. Powell bars Fourth Amendment claims). In Stone v. Powell, the Supreme Court held that

3

Petitioner’s decision not to challenge his plea as unknowing and involuntary undoubtedly arises from the
content of his own responses to the trial court’s inquiry at the plea hearing. Petitioner has not provided the full plea
hearing transcript. Instead, he attached to his petition only the first five pages of the transcript. Nevertheless, even in
the course of the few pages submitted, Petitioner stated that he wished to plead guilty, acknowledged that he was a highschool graduate, that he understood the proceedings, that he understood the nature of the charge, and that he understood
the full content of the plea agreement, including the fact that his sentence could not exceed seven years. It is equally
apparent that the trial court engaged in a full inquiry of Petitioner’s understanding of all of the rights being waived.
Moreover, inasmuch as the Michigan Court of Appeals affirmed the conviction on the merits, Petitioner was required
to do more than raise a question of voluntariness. He was required to demonstrate that the state-court’s determination
constituted an unreasonable application of established Supreme Court precedent. 28 U.S.C. § 2254(d). Petitioner has
wholly failed to meet his burden.

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federal habeas review is not available to a state prisoner alleging that his conviction rests on
evidence obtained through an unconstitutional search or seizure, as long as the state has given the
petitioner a full and fair opportunity to litigate the Fourth Amendment claim. Id.; see also Rashad
v. Lafler, No. 09-2371, slip op. at 7 (6th Cir. Apr. 5, 2012).
In order for the rule of Stone v. Powell to apply, the state must have provided, in the
abstract, a mechanism by which to raise the Fourth Amendment claim, and the presentation of the
claim in the case before the court must not have been frustrated by failure of that mechanism. See
Gilbert v. Parke, 763 F.2d 821, 823 (6th Cir. 1985). If these two inquiries are satisfied, federal
habeas review of the Fourth Amendment claim is precluded, even if the federal court deems the
state-court determination of the claim to have been in error. Id. at 824; accord Jennings v. Rees, 800
F.2d 72 (6th Cir. 1986); Markham v. Smith, 10 F. App’x 323, 326 (6th Cir. 2001).
In the present case, Petitioner cannot satisfy either prong of the Stone v. Powell
standard. First, it is beyond dispute that Michigan has a state procedural mechanism that presents
a defendant a full opportunity to raise a Fourth Amendment claim before trial. Even before the
United States Supreme Court decided that the federal exclusionary rule applied to state criminal
proceedings, the Michigan courts applied the exclusionary rule to the fruits of unconstitutional
searches and seizures. See People v. Margelis, 186 N.W. 488 (Mich. 1922). After Mapp v. Ohio,
367 U.S. 643 (1961), the Michigan courts consistently have acknowledged their duty, under both
the federal and state constitutions, to suppress evidence seized in violation of the Fourth
Amendment. See, e.g., People v. David, 326 N.W.2d 485, 488 (Mich. Ct. App. 1982). Consequently, Michigan affords criminal defendants a vehicle by which to raise Fourth Amendment
challenges.

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Second, to satisfy the remaining prong of Stone v. Powell, Petitioner must allege facts
showing that the state corrective mechanism has somehow broken down. See, e.g., Agee v. White,
809 F.2d 1487, 1490 (11th Cir. 1987) (habeas review not barred when state appellate court
completely ignored Fourth Amendment claim). The Sixth Circuit pointedly has held that the
doctrine of Stone v. Powell applies, even if the federal court deems the state-court determination of
the Fourth Amendment claim to have been in “egregious error.” Gilbert v. Parke, 763 F.2d at 824
(citing Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982)).
Petitioner has not alleged any facts showing that the state’s mechanism has broken
down. Rather, it is clear that the Michigan courts gave Petitioner’s Fourth Amendment claim full
and proper consideration. Petitioner has attached to his petition the transcript of the preliminary
examination on the motion to suppress evidence. The transcript demonstrates that the district court
fully and thoughtfully considered Petitioner’s motion to suppress. The Michigan Court of Appeals
reviewed Petitioner’s application for leave to appeal and determined that it lacked merit. Petitioner
applied for leave to appeal to the Michigan Supreme Court, which denied his application. Therefore,
even if this Court were to disagree with the determination of the Michigan courts, that disagreement
would be insufficient to satisfy the second prong of the Sixth Circuit standard. Gilbert, 763 F.2d
at 824.
Because Petitioner has failed to demonstrate either prong of Stone v. Powell, his
claim of illegal search and seizure is barred on habeas review.
B.

Prosecutorial Misconduct

Petitioner next argues that the failure of the prosecution to provide Plaintiff’s expert
access to the computer’s hard drive amounted to prosecutorial misconduct. As previously discussed,

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Petitioner’s original counsel sought discovery, and his substitute attorney filed a motion for further
discovery. On March 4, 2010, the state court ordered the prosecution to provide the expert with
access to the computer to inspect the files identified as containing child sexually abusive materials.
(Page ID#64.) When the opportunity for inspection subsequently was not provided, defense counsel
moved to compel the inspection and the court ordered that inspection during the week of August 2,
2010. (Page ID##56-57, 151.)
In order to demonstrate that a prosecutor committed discovery misconduct violating
the Due Process Clause, Petitioner must show that the state failed to disclose exculpatory evidence
to the defense. See Brady v. Maryland, 373 U.S. 83(1963). In order to establish a Brady claim,
Petitioner must demonstrate that: (1) evidence was suppressed by the prosecution in that it was not
known to petitioner and not available from another source; (2) the evidence was favorable or
exculpatory; and (3) the evidence was material to the question of petitioner’s guilt. See Strickler v.
Greene, 527 U.S. 263, 281-82 (1999); Carter v. Bell, 218 F.3d 581, 601 (6th Cir. 2000); see also
Moore v. Illinois, 408 U.S. 786, 794-95 (1972). Petitioner bears the burden of establishing each of
these three elements. See Carter, 218 F.3d at 601.
Petitioner fails even to identify the constitutional question, much less to allege facts
supporting any of the three Brady elements. Petitioner provides no evidence that the prosecution
actually suppressed defense access to the computer. Although defense counsel admittedly was
delayed in obtaining the information, nothing in the record indicates that the prosecutor did not
comply with the court’s July 27, 2010 order to allow inspection during the week of August 2, 2010,
more than three weeks before the date set for trial, at which Petitioner pleaded guilty. In addition,
Petitioner does not allege that any information on the computer was exculpatory or favorable or that

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it was material to his case. Accordingly, Petitioner wholly fails to demonstrate prosecutorial
misconduct with regard to the suppression of evidence.
C.

Ineffective Assistance

Petitioner’s final claim of ineffective assistance of counsel is based on two assertions:
(1) counsel did not meet with Petitioner for eight months and did not allow Petitioner to examine
all evidence before he pleaded guilty; and (2) counsel permitted the prosecution to refuse to provide
discovery material. 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.

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The two-part Strickland test applies to challenges to guilty pleas based on ineffective
assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Regarding the first prong, the court
applies the same standard articulated in Strickland for determining whether counsel’s performance
fell below an objective standard of reasonableness. Id. In analyzing the prejudice prong, the focus
is on whether counsel’s constitutionally deficient performance affected the outcome of the plea
process. “[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Id. at 59.
When a federal court reviews a state court’s application of Strickland under
§ 2254(d), the deferential standard of Strickland is “doubly” deferential. Richter, 131 S. Ct. at 788
(citing Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009)); Premo v. Moore, 131 S. Ct. 733, 740
(2011). In those circumstances, the question before the habeas court is “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
Petitioner wholly fails to demonstrate either prong of the Strickland/Hill standard.
With respect to the performance prong, during the entire period of his representation, defense
counsel engaged in vigorous representation of Petitioner. Counsel filed a second motion for
discovery, which carefully delineated what had been originally requested, what had been provided,
and what remaining discovery was sought. After obtaining an order granting discovery, counsel
moved to compel that discovery, again prevailing on his motion. In addition, counsel engaged a
computer expert to examine the electronic evidence upon which the prosecution relied and to rebut
the prosecution’s expert. Finally, counsel negotiated a plea agreement under which Petitioner was
permitted to plead to an offense with a maximum sentence of seven years, in exchange for the

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dismissal of three other counts that could have exposed Petitioner to substantially longer maximum
terms of imprisonment. Nothing about this history undermines the presumption that counsel
rendered fully competent assistance during the pretrial stages or in recommending that Petitioner
plead guilty to the lesser offense.
With respect to the prejudice prong of Strickland/Hill, Petitioner at no time represents
that he would have refused the plea offer if counsel had done anything differently. He therefore fails
even to allege the requisite prejudice under Hill, 474 U.S. at 59.
For both reasons, Petitioner fails to demonstrate that the state courts unreasonably
rejected his claim of ineffective assistance of counsel. See Richter, 131 S. Ct. at 788.
Conclusion
In light of the foregoing, the Court will summarily dismiss Petitioner’s application
pursuant to Rule 4 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). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court has already determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.

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Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr. of New York, 865 F.2d 44, 46 (2d Cir.
1989) (it was “intrinsically contradictory” to grant a certificate when habeas action does not warrant
service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing
certificate would be inconsistent with a summary dismissal).
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 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 dismissal
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: May 3, 2012

/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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