Brown v. Vashaw

                  UNITED STATES DISTRICT COURT                           
                  EASTERN DISTRICT OF MICHIGAN                           
                       SOUTHERN DIVISION                                 

MILON JARR BROWN,                                                         


                   Petitioner,            Case No. 2:20-cv-11716         
                                                 Hon. Nancy G. Edmunds   
v.                                                                        

ROBERT VASHAW,                                                            

                   Respondent.                                           
________________________________________/                                 

OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS,        
    (2) DENYING CERTIFICATE OF APPEALABILITY, AND (3) DENYING            
            PERMISSION TO APPEAL IN FORMA PAUPERIS                       

    Milton Jarr Brown (“Petitioner”) filed this petition for a writ of habeas corpus under 28 
U.S.C. § 2254. Petitioner, who was a juvenile at the time of the offense, is serving a prison sentence 
of 30-to-60 years as well as lesser terms for his Saginaw Circuit Court jury trial conviction of first-
degree murder, MICH. COMP. LAWS § 750.316(1)(b), armed robbery, MICH. COMP. LAWS § 
750.529, assault with intent to commit armed robbery, MICH. COMP. LAWS § 750.89, and three 
counts of felony-firearm. MICH. COMP. LAWS § 750.227b.                    
    The petition raises four claims: (1) Petitioner’s right to present a defense was violated when 
a defense witness was permitted to invoke her Fifth Amendment right against self-incrimination; 
(2) witnesses were erroneously allowed to identify Petitioner as the person depicted in security 
camera videos; (3) Petitioner’s confrontation rights were violated by the erroneous admission of 
hearsay statements as excited utterances; and (4) Petitioner’s trial was rendered fundamentally 
unfair by the admission of gruesome autopsy photos. (ECF No. 1, PageID.40-44.) 
    The Court will deny the petition because the claims are without merit. The Court will also 
deny a certificate of appealability and deny permission to appeal in forma pauperis. 
                          I. Background                                  
    The Michigan Court of Appeals summarized the facts surrounding Petitioner’s case: 
         Defendant’s convictions arise from the June 26, 2016, shooting death of 
    Cameron Pennywell during the course of a robbery in Saginaw. The prosecution’s 
    main  witness  was  Daveon  Thompson,  who  testified  that  he  was  visiting  the 
    Bridgton Townhomes in his mother’s truck, along with the victim and Amaris 
    Kinnard, when they encountered defendant. Kinnard passed defendant a book bag 
    or backpack through an open window. According to Thompson, several minutes 
    later, at an abandoned house near the Bridgton Townhomes, defendant produced a 
    gun  and  accosted  Thompson  and  the  victim.  Thompson  said  that  defendant 
    attempted to rob him but found nothing to take, did take some cash and a cell phone 
    from the victim, and then shot the victim several times; resulting in the latter’s death 
    shortly  thereafter.  Surveillance  video  footage  from  the  Bridgton  Townhomes 
    substantially comported with this account. A paramedic attending to the victim 
    shortly  after  the  shooting  testified  that  the  victim  repeatedly  volunteered  the 
    apparent name “Cornel,” including as his only reply to several questions put to him 
    by the paramedic.                                                    

People v. Brown, 2019 WL 2146238, at *1 (Mich. Ct. App. May 16, 2019).    
    Further  facts  surrounding  Petitioner’s  trial  will  be  discussed  below.  Following  trial, 
Petitioner pursued a direct appeal. The appellate brief filed by Petitioner’s counsel raised three 
claims:                                                                   
    I.  The  Confrontation  Clause  of  the  Sixth  Amendment  guarantees  criminal 
    defendants a meaningful opportunity to present a complete defense. Milon Brown 
    was denied a meaningful opportunity to present a complete defense when a witness 
    for  the  defense  invoked  a  specious  Fifth  Amendment  claim  against  self-
    incrimination.                                                       

    II. A witness cannot provide his or her opinion on a matter when the jury is equally 
    capable of reaching its own conclusion on that same issue because this invades the 
    province of the jury. The province of the jury was invaded when lay witnesses 
    provided their opinion that Milon Brown was the person depicted in videos. 

    III. The excited utterance exception states that hearsay is admissible if it is a 
    “statement relating to a startling event or condition made while the declarant was 
    under the stress of excitement caused by the event or condition.” Inadmissible 
    hearsay was admitted into the case against Milon Brown under the guise of an 
    excited utterance when there was time to contrive and misrepresent and this 
    inadmissible evidence was a key component in convicting Brown.       

    Petitioner then filed a supplemental pro se appellate brief that raised three additional 
claims:                                                                   
    IV. Defendant Brown was deprived of a fair trial [when] the trial judge repeatedly 
    and improperly interjected impartial [sic] comments and question[s].  And where 
    Judge Janet M. Boes drastically altered trial procedure.             

    V. Defendant Brown was deprived of a fair trial [from the] trial court decision to 
    allow the introduction of gruesome crime scene photos and photos of the autopsy 
    [which] were highly inflammatory and highly prejudicial in violation of the Sixth 
    and Fourteenth Amendment to the United States Constitution and Article I section 
    10 and 16 of the Michigan Constitution.                              

    VI. The defendant was deprived of a fair trial where the prosecutor objected to the 
    admission of a dying declaration of Cameron Pennywell when he made multiple 
    comments on who killed him.                                          

    The Michigan Court of Appeals affirmed in an unpublished opinion, but it vacated 
Petitioner’s second-degree murder conviction and one of his felony-firearm convictions on double-
jeopardy grounds. Brown, 2019 WL 2146238, at *1. Brown subsequently filed an application for 
leave to appeal in the Michigan Supreme Court, raising the same claims he raised in the Michigan 
Court of Appeals. The Michigan Supreme Court denied the application by standard form order. 
People v. Brown, 934 N.W.2d 246 (Mich. 2019) (Table).                     
                       II. Standard of Review                            
    28  U.S.C.  §  2254(d)  curtails  federal  habeas  review  of  state  convictions  for  claims 
adjudicated on the merits by state courts. A habeas petitioner must demonstrate that the state court 
adjudication was “contrary to” or “involved an unreasonable application of” clearly established 
Supreme Court law. A decision is “contrary to” clearly established Supreme Court law if the state 
court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law 
or if the state court decides a case differently than the Supreme Court has on a set of materially 
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable 
application” occurs when “a state court decision unreasonably applies the law of [the Supreme 
Court] to the facts of a prisoner’s case.” Id. at 409. Under this standard, a federal habeas court may 
not “issue the writ simply because that court concludes in its independent judgment that the 

relevant state-court decision applied clearly established federal law erroneously or incorrectly.” 
Id. at 410-11.                                                            
                          III. Discussion                                
A. Right to Present a Defense                                             
    Petitioner’s first claim asserts that his Sixth Amendment right to present a defense was 
violated when the trial court excused defense witness Amaris Kinnard from testifying after she 
invoked her Fifth Amendment right against self-incrimination. The prosecutor suggested that 
Kinnard may have been involved in the crime, and that the murder weapon may have been inside 
the bookbag she gave to Petitioner a few minutes before the crime. Petitioner asserts that he was 

deprived of the opportunity to present a counter narrative when he was prevented from presenting 
Kinnard’s testimony that there was no firearm in the bag she gave Petitioner.  
    After reciting the constitutional standard and the facts surrounding the claim, the Michigan 
Court of Appeals denied relief as follows:                                
         Defendant argues that the trial court should have undertaken further inquiry 
    to establish that Kinnard’s invocation  of the Fifth Amendment was justified. 
    Defendant contends that Kinnard’s testimony could have been limited such that she 
    would not have incriminated herself. He also  argues that Kinnard should have been 
    given “use immunity” to testify so that her testimony could not have been used 
    against her at her trial. We decline to address the questions posed by defendant, 
    however, because we conclude that Kinnard would not have provided him with a 
    substantial defense.                                                 
         To obtain appellate relief, defendant must show that he was denied the right 
    to present a substantial defense. See People v. Petri, 279 Mich. App. 407, 420; 760 
    N.W.2d 882 (2008); see also People v. Whitfield, 425 Mich. 116, 124 n 1; 388 
    N.W.2d 206 (1986) (applying harmless-error review to defendant’s claim that he 
    was denied the right to present a defense). “A substantial defense is one that could 
    have affected the outcome of the trial.” People v. Putnam, 309 Mich. App. 240, 
    248; 870 N.W.2d 593 (2015).                                          

         Defendant argues that Kinnard’s testimony would have been critical to the 
    defense because it would have contradicted the prosecution’s theory that the murder 
    weapon was in the backpack that Kinnard gave defendant shortly before the 
    shooting. We conclude that testimony from Kinnard countering any implication 
    that she provided the murder weapon to defendant would have had little bearing on 
    the outcome of the case. Thompson testified that defendant produced a gun from 
    his waistband, and where the gun came from was not a significant factor in the case. 
    Indeed, in argument the prosecutor emphasized to the jury that it was irrelevant 
    whether Kinnard gave defendant the weapon. Accordingly, the jury’s determination 
    whether defendant was the shooter did not depend on whether the jury believed that 
    Kinnard handed defendant a backpack with a gun concealed inside. Defendant fails 
    to establish that he was denied his right to present a substantial defense as a 
    consequence of Kinnard invoking her right against self-incrimination. 

Brown, 2019 WL 2146238, at *1-2 (footnote omitted).                       
    The state appellate court found, in essence, that any error in failing to compel Kinnard to 
testify was harmless. A violation of the right to present a defense is amenable to harmless error 
review. See Fleming v. Metrish, 556 F.3d 520, 536 (6th Cir. 2009); Couturier v. Vasbinder, 385 F. 
App’x 509, 517 n.2 (6th Cir. 2010) (applying harmless error analysis to a claim that exclusion of 
evidence violated defendant’s right to present a complete defense). On  federal  habeas  review, 
harmless error review requires the court to ask whether the alleged error “had substantial and 
injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 
619, 637 (1993).                                                          
    There is debate whether apart from satisfying the Brecht standard, a habeas petitioner must 
also show that the state court unreasonably determined that the alleged error was harmless. Indeed, 
rather than assert that Petitioner fails to satisfy the Brecht standard, Respondent asserts that the 
state court reasonably determined that the alleged error was harmless under § 2254(d). The Sixth 
Circuit, however, recently confirmed that habeas courts need only apply the Brecht standard 
because it “‘subsumes’” § 2254(d)’s unreasonableness inquiry. Davenport v. MacLaren, 964 F.3d 
448, 454-455 (6th Cir. 2020) (citing Davis v. Ayala, 576 U.S. 257 (2015) and Fry v. Pliler, 551 
U.S. 112, 119-20 (2007)). This is in keeping with the Sixth Circuit’s previous statement that 

“Brecht is always the test, and there is no reason to ask both whether the state court ‘unreasonably’ 
applied  Chapman  under  the  AEDPA  and,  further,  whether  the  constitutional  error  had  a 
‘substantial and injurious’ effect on the jury’s verdict.” Ruelas v. Wolfenbarger, 580 F.3d 403, 412 
(6th Cir. 2009); see also Reiner v. Woods, 955 F.3d 549, 556 (6th Cir. 2020) (“The Supreme Court 
and this court have made clear that ‘Brecht is always the test’ for evaluating harmless error on 
collateral review, even where AEDPA applies.”)                            
    The sole question here, then, is whether the purported error of failing to compel Kinnard 
to testify for the defense “had a substantial and injurious effect or influence in determining the 
jury’s verdict.” Brecht, 507 U.S. at 637. In applying this standard, the fact that the evidence was 

otherwise sufficient to sustain the convictions is not enough to justify a finding of harmlessness. 
Rather, the question is “whether the evidence is so strong that a reviewing court can be assured 
that the [alleged trial error] did not affect the jury’s conclusions.” Ruimveld v. Birkett, 404 F.3d 
1006, 1017 n.5. (6th Cir. 2005).                                          
    Here, though trial counsel failed to make an offer of proof as to Kinnard’s proposed 
testimony, Petitioner asserts that she would have testified that there was not a gun in the backpack 
she handed to Petitioner minutes before the robbery, and that she was not part of any plan to set-
up Pennywell and Thompson to be robbed. It is true that the prosecutor suggested to the jury that 
Kinnard  was  involved  in  the  robbery.  In  closing  argument  she  stated,  “So  once  the  white 
Expedition arrives in the complex, the defendant obtains the backpack. And what’s in the 
backpack? The gun that was used.” (Tr. V, at 41.) That argument was not based on sheer 
speculation; it was founded on in inference from the testimony of Demetrice Daniel, who said that 
when Petitioner walked past her apartment with the backpack just before the shooting he told her, 
“Grams, you don’t want what’s in this bag.” (Tr. III, at 121-122.)        

    That said, whether Kinnard supplied Petitioner with the weapon was not a material part of 
the prosecutor’s theory of guilt. It would be one thing if the identity of the shooter somehow hinged 
on possession of the backpack, but Petitioner’s identity as the shooter was shown in a much more 
direct  way.  First  and  foremost,  his  identity  was  established  through  the  surviving 
victim/eyewitness Thompson, who had been friends with Petitioner for years. (Tr. III, at 30-31.) 
Immediately after the shooting, Thompson ran to Hooper’s nearby apartment, and he told Hooper 
that Petitioner shot Pennywell. (Tr. III, at 136-139.)                    
    Mathew Mahoney, a security guard at the adjacent apartment complex, analyzed footage 
from the complex’s security cameras. (Tr. II, at 101-102.) He identified Petitioner, Donquavius 

White, and Kinnard (persons known to him because of prior contacts over the years) as the three 
individuals heading towards the scene just prior to the shooting. (Tr. II, at 110-115.) Detective 
Patrick  Busch,  who  was  also  familiar  with  Petitioner  from  prior  contacts,  also  recognized 
Petitioner on the same footage. (Tr. IV, at 40-42.)                       
    Then there was the identification testimony of Alizae Vanburen-Buford, who was another 
resident of the apartment complex who knew Petitioner for a period of years. She was standing on 
the sidewalk outsider her apartment when the shooting occurred. (Tr. III, at 156.) She identified 
Petitioner and White as two individuals she saw heading towards the scene just prior to the 
shooting. (Tr. III, at 156-164, 167, 170.) She then saw Petitioner arguing with someone in a white 
vehicle, Petitioner pulled out a gun, Petitioner shot the victim, the victim ran and fell, and then 
Petitioner continued to shoot him. (Id., at 168-170.)                     

    The suggestion that the gun may have originally been supplied by Kinnard, therefore, was 
an insignificant part of the prosecutor’s argument as to why the jury should find that Petitioner 

was the shooter. In rebuttal argument, she conceded that how Petitioner obtained the gun was 
unimportant:                                                              
         [Defense counsel] says that the government wants to say that the gun was 
    in the backpack. Well, if the gun wasn’t in the backpack, ladies and gentlemen, then 
    the defendant had it on him or he got it from Donquavius White. But we know that 
    he had it on him at the time of the robberies and the shooting.      

(Tr. V, at 88.)                                                           
    On this record, the Court finds that the strength of the evidence presented establishing 
Petitioner’s identity as the shooter, which was not based in any material way on evidence that 
Kinnard passed him the backpack, assures the Court that any error in failing to compel Kinnard to 
testify did not affect the outcome of the trial. Petitioner has therefore failed to show that the alleged 
error had a substantial impact or influence on the result of his trial, precluding habeas relief under 
Brecht.                                                                   
B. Admission of Lay Opinion Testimony                                     
    Petitioner’s second claim asserts that the trial court erred in allowing Thompson, Mahoney, 
and Busch to testify that Petitioner was one of the people depicted on the videos seen headed to 
the scene of the shooting. After discussing the standard for the admission of opinion testimony 
under Michigan Rule of Evidence 701, the Michigan Court of Appeals found that the testimony 
was properly admitted:                                                    
         In this case, the trial court held an evidentiary hearing to decide whether to 
    allow the challenged witnesses to offer opinions regarding the identities of the 
    persons depicted on the surveillance video footage. At the hearing, Thompson 
    testified that he had known defendant as a friend for a “[c]ouple years,” during 
    which time he saw him “[a]most every day.” The security guard testified that he 
    was familiar with defendant as part of the complex’s “no-trespassing list,” having 
    removed defendant from the premises multiple times. The security guard explained 
    that he was able to identify defendant because he recognized defendant’s facial 
    features, physical build, and tendency to walk in “fairly large strides for his size.” 
    The police detective was also familiar with defendant, having worked “road patrol” 
    several years earlier in the area where defendant lived. The detective testified that 
    he sometimes saw defendant “a couple times a shift.”                 

         The detective testified that in reviewing the subject video footage he had no 
    difficulty recognizing defendant on the basis of facial features, stature, and manner 
    of walking. Contrary to defendant’s argument, the trial court did not abuse its 
    discretion in deciding that the witnesses were in better position than the jury to 
    identify defendant in the surveillance video footage. Thompson was intimately 
    familiar with defendant, having been friends with him for years. We also note that 
    Thompson was at the scene and appears in the video footage himself. The security 
    guard and the detective were also familiar [with] defendant and his unique gait, 
    which the jury may or may not have had a chance to observe. Further, the court 
    found that the stills taken from the surveillance footage were not clear and that the 
    footage itself was “even less clear.” Under those circumstances, the witnesses’ 
    testimony did not invade the province of the jury.                   

Brown, 2019 WL 2146238, at *3 (footnotes omitted).                        
    Petitioner asserts that the court erred in admitting the identification evidence because the 
three witnesses were in no better position than the jury to determine whether Petitioner was one of 
the individuals depicted on the videos. Errors in the application of state law, especially rulings 
regarding the admissibility of evidence, however, cannot be questioned by a federal habeas court. 
Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000). Rather, federal habeas courts “‘must defer 
to a state court’s interpretation of its own rules of evidence and procedure’ when assessing a habeas 
petition.” Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (quoting Allen v. Morris, 845 F.2d 
610, 614 (6th Cir. 1988)). The Michigan Court of Appeals concluded that as a matter of state 
evidentiary law the three witnesses’ identification testimony was permissible. This Court sitting in 
federal habeas review may not conclude otherwise. See Wainwright v. Goode, 464 U.S. 78, 84 
(1983).                                                                   
    Petitioner argues that beyond violating state evidentiary rules, the identification testimony 
“invaded the province of the jury,” which the Court understands to be a reference to his Sixth 
Amendment right to a jury trial. There is generally no prohibition, however, on a witness offering 

opinion testimony which goes to an ultimate issue in a case. Both the Federal and Michigan Rules 
of Evidence permit such testimony. See Fed R. Evid. 704(a); Mich. R. Evid. 704. And there is no 
clearly established federal law as determined by the Supreme Court which suggests that the 
admission of such evidence violates the Constitution. See Davis v. Trierweiler, 2018 U.S. Dist. 
LEXIS 55604, 2018 WL 1586487, *10 (E.D. Mich. March 31, 2018). Petitioner therefore fails to 
demonstrate entitlement to habeas relief with respect to his second claim.  
C. Admission of Excited Utterance                                         
    Petitioner’s third claim asserts that his Sixth Amendment right to confront witnesses was 
violated by the admission of Hooper’s testimony that Thompson told him in his apartment that 

Petitioner was the shooter.  The Michigan Court of Appeals found that the testimony was properly 
admitted as an excited utterance under Michigan Rule of Evidence 803(2). Brown, 2019 WL 
2146238, at *4.                                                           
    As with the previous claim, whether the statement was properly admitted as an excited 
utterance is a question of state law that cannot form a cognizable basis for granting federal habeas 
relief. See Johnson v. Renico, 314 F. Supp. 2d 700, 706 (E.D. Mich. 2004).  
    Moreover, the admission of Thompson’s statement to Hooper did not contravene clearly 
established Supreme Court law. The Confrontation Clause of the Sixth Amendment gives the 
accused the right “to be confronted with the witnesses against him.” U.S. Const., Am. VI; Pointer 
v. Texas, 380 U.S. 400, 403-405 (1965). The Clause prohibits the admission of an out-of-court 
testimonial statement at a criminal trial unless the witness is unavailable to testify and the 
defendant had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 
59 (2004). In Davis v. Washington, 547 U.S, 813 (2006), the Supreme Court decided that the 
Confrontation Clause applied only to testimonial hearsay and not to non-testimonial hearsay. Id. 

at 823-824; see also Whorton v. Bockting, 549 U.S. 406, 420 (2007); Giles v. California, 554 U.S. 
353, 376 (2008).                                                          
    Admission of Thompson’s statement to Hooper did not violate Petitioner’s confrontation 
rights for two reasons. First, the statement was non-testimonial - it was a statement to a family 
member who was trying to calm the declarant. Second, because the declarant testified at trial and 
was subject to unrestricted cross-examination, Petitioner was able to confront the declarant 
regarding his out-of-court statement. See United States v. Owens, 484 U.S. 554, 560 (1988). 
Petitioner’s third claim is therefore without merit.                      
D. Admission of Gruesome Photos                                           

    Petitioner’s  final  claim  asserts  that  his  trial  was  rendered  fundamentally  unfair  by 
admission of two autopsy photos. The Michigan Court of Appeals found that the photos were 
properly admitted:                                                        
    Defendant characterizes the two autopsy photographs at issue as “gruesome” and 
    “inflammatory,” but does not otherwise attempt to explain how they might have 
    distorted  the  jurors’  judgment.  Further,  the  photographs  were  relevant  to  the 
    testimony describing the various wounds. In light of this cursory argument, given 
    the  deferential  principles  that  govern  review  of  decisions  on  objections  to 
    photographic evidence, even if we accept at face value defendant’s characterization 
    of the challenged images as “gruesome,” defendant’s offering of that, without more, 
    falls short of establishing a basis for concluding that the trial court erred by 
    admitting the evidence. Accordingly, defendant fails to show that the trial court 
    abused its discretion in admitting the photographs.                  

Brown ̧  2019 WL 2146238, at *4-5.                                        
    Fundamental fairness challenges based on the admission of graphic photographs at trial 
cannot be supported by clearly established Supreme Court law. See e.g. Franklin v. Bradshaw, 695 
F.3d 439, 456-57 (6th Cir. 2012) (state court’s determination that petitioner’s right to fair trial was 
not denied by admission of 18 gruesome autopsy photographs of his victims that were shown to 
jurors  on  large  projector  screen  during  trial  for  aggravated  arson,  aggravated  robbery,  and 

aggravated  murder,  was  not  contrary  to  clearly  established  federal  law).  In  particular,  the 
introduction of gruesome photographs of a murder victim does not entitle a petitioner to habeas 
relief where there is some legitimate evidentiary purpose for the photographs’ admission. See e.g., 
Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2005) (upholding the admission of photographs 
depicting a victim’s severed head, severed breast, and severed body parts placed near the victim’s 
torso; the photos were highly probative of the prosecutor’s claim that the petitioner beat the victim 
severely and meticulously dissected her body); Frazier v. Huffman, 343 F.3d 780, 789 (6th Cir. 
2003) (finding acceptable the admission of multiple photographs of the victim used by the coroner 
to illustrate the nature of the encounter preceding the victim’s death); Cooey v. Coyle, 289 F.3d 

882, 893 (6th Cir. 2002) (observing that “although the photographs were gruesome, they were 
highly probative.”).                                                      
    The autopsy photographs here were admitted to aid in the understanding of the medical 
examiner’s testimony regarding the nature of victim’s gunshot wounds. The testimony and photos 
were highly relevant to the issue of cause of death and intent. Because the photographs served a 
proper evidentiary purpose, the trial court’s decision to admit them did not render Petitioner’s trial 
fundamentally unfair.                                                     
    As none of Petitioner’s habeas claims merit relief, the petition will be denied. 
                    IV. Certificate of Appealability                     
    In order to appeal the Court’s decision, Petitioner must obtain a certificate of appealability. 
28 U.S.C. § 2253(c)(2). The applicant is required to show that reasonable jurists could debate 
whether the petition should have been resolved in a different manner, or that the issues presented 
were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 

483-84 (2000). A federal district court may grant or deny a certificate of appealability when the 
court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 
2002). Here, jurists of reason would not debate the Court’s conclusion that Petitioner has failed to 
demonstrate entitlement to habeas relief with respect to his claims because they are devoid of 
merit. Therefore, a certificate of appealability is denied.               
    Petitioner is denied permission to appeal in forma pauperis because any appeal would be 
frivolous. 28 U.S.C. § 1915(a)(3).                                        
                          V. Conclusion                                  
    Accordingly, the Court 1) DENIES WITH PREJUDICE the petition for a writ of habeas 

corpus, 2) DENIES a certificate of appealability, and 3) DENIES permission to appeal in forma 
pauperis.                                                                 
    SO ORDERED.                                                          
                                  s/ Nancy G. Edmunds_____               
                                  Hon. Nancy G. Edmunds                  
                                  United States District Judge           
Dated:  April 26, 2021