AI Case Brief
Generate an AI-powered case brief with:
đKey Facts
âď¸Legal Issues
đCourt Holding
đĄReasoning
đŻSignificance
Estimated cost: $0.10â$0.50 per brief, depending on opinion length and retries
Full Opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MELVIN ERVING, 2:21-CV-12348-TBG-DRG
Petitioner,
vs. OPINION & ORDER DENYING
THE HABEAS PETITION &
MICHAEL BURGESS,
DENYING A CERTIFICATE OF
Respondent. APPEALABILITY
Michigan prisoner Melvin Erving (âErvingâ), through counsel, has
filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Erving was convicted of kidnapping and two counts of first-degree
criminal sexual conduct following a jury trial in the Wayne County
Circuit Court. He was sentenced to 15 to 30 years in prison on the
kidnapping conviction and to concurrent terms of 20 to 40 years in prison
on the each of the sexual assault convictions in 2019. In his habeas
petition, he raises claims concerning the impartiality of the trial judge,
the admission of the victimâs preliminary examination testimony and his
confrontation rights, the prosecutionâs efforts to produce the witness, and
the effectiveness of trial counsel. For the reasons below, the Court
DENIES and DISMISSES WITH PREJUDICE the habeas petition
and DENIES a certificate of appealablity.
I. FACTS AND PROCEDURAL HISTORY
Ervingâs convictions arise from his kidnapping and sexual assault
of a woman in August 2011. The Michigan Court of Appeals described the
relevant facts, which are presumed correct on habeas review, 28 U.S.C.
§ 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as
follows:
On August 25, 2011, between 10:45 p.m. and 11:45 p.m., the
victim was walking alone to a gas station near her home when
a man driving a 2009 burgundy Impala stopped the victim
and asked for directions. When the victim leaned towards the
car, the man grabbed the victimâs arm, âsnatchedâ her into the
front-passenger seat of his vehicle, locked the door, and drove
away. The man held the victim down with one hand and
stated, âI think you know what Iâm about to do to you.â When
the victim looked in the manâs direction, he punched the
victim in the face and said, âDonât look at me.â
The man drove to an isolated area and parked, then
penetrated the victim vaginally, flipped her over, and
penetrated her anally. The man did not use a condom and
ejaculated. When the victim tried to look in the manâs
direction, he hit her. After the sexual assault, the man forced
the victim to remove her clothing and kicked her out of his
vehicle. The victim ran to a nearby building and cried for help.
Employees at the building saw the victim, gave her a shirt,
and called 911. One employee observed two vehicles
âcreepingâ as if they were looking for someone, and one of the
vehicles appeared to be a dark-colored four-door Impala.
The victim was taken to a hospital, where Julie Carol Groat,
a sexual assault nurse examiner (SANE), administered an
examination and collected evidence for a DNA rape kit. The
victim told Groat that the man penetrated her vaginally and
anally, and ejaculated near her anal-rectal area. The victim
also told Groat that she had sex with her boyfriend within
ninety-six hours of the sexual assault. Groat noted the victim
had facial, neck, and anal pain, bruising on her right upper
arm, and tearing in her anal canal, with active bleeding.
Groat described the victimâs demeanor as easily agitated and
tearful, with outbursts of crying.
Detective Robert Kane with the Detroit Police Departmentâs
(DPD) Sex Crimes Unit spoke with the victim at the hospital
the morning after the sexual assault. The victim described the
perpetrator as a black male, around 39 to 40 years old, dark
complexioned, with a round face, six feet in height, and with
a medium build. The victim also told Detective Kane that the
man drove a 2009 burgundy Impala.
The DNA rape kit that Groat collected was released to
Detective Kane and received by Bode Technology in December
2011. A sperm fraction sample from the victimâs labia majora
contained the DNA of at least two individuals, with the
victimâs boyfriendâs DNA being the major component.
However, a sperm fraction sample from the victimâs right
interior thigh was consistent with a male contributor, but the
victimâs boyfriend was excluded. Eventually, the Michigan
State Police (MSP) entered the DNA profile from the victimâs
right interior thigh into the Combined DNA Index System,
which matched that DNA with defendantâs DNA. Detective
Regina Swift took defendantâs buccal swab, and in September
2018, the MSP confirmed that defendantâs buccal swab DNA
extract matched the DNA profile from the victimâs right thigh.
When Detective Swift interviewed the victim, she was unable
to identify defendant in a photographic array. At defendantâs
preliminary examination, however, the victim identified
defendant as her assailant.
People v. Erving, No. 347728, 2020 WL 5582263, *1 (Mich. Ct. App. Sept.
17, 2020).
Following his convictions and sentencing, Erving filed a motion for
a new trial or Ginther hearing with the state trial court, which granted
the Ginther hearing request. Mot. Hrg. Tr., ECF No. 10-14.
At that hearing, trial counsel testified that Erving told him that he
had used prostitutes at the time of the crime and that he did so after
getting off work around 2:00 a.m. Evid. Hrg. Tr., ECF No. 10-15,
PageID.945. Counsel could not recall whether they discussed Ervingâs
appearance in 2011. Id. at PageID.945â946. Counsel testified that Erving
told him that he never owned a red or burgundy Impala or Malibu. Id. at
PageID.947. He recalled Ervingâs mother telling him the same. Id. at
PageID.948. Counsel testified that he did not think Ervingâs appearance
was âstrikingly differentâ from the victimâs description and that he did
not focus on the car because of the DNA evidence. Id. at PageID.949.
Counsel recalled that DNA evidence not attributed to Erving or the
victimâs boyfriend was found on the victim so his strategy was to argue
that someone else was responsible for the assault and create reasonable
doubt that Erving committed the crime. Id. at PageID.949â951. He also
recalled arguing the prostitution angle based on police testimony that the
area in question was frequented by prostitutes. Id. at PageID.951â952.
Counsel also testified that he talked to Erving about testifying at trial
and initially wanted him to testify, but changed his advice when the
victim failed to appear to testify because he could challenge the timeline
of events better without Ervingâs testimony. Id. at PageID.952â953.
Counsel recalled advising Erving that certain prior convictions could be
used for impeachment, but he did not have convictions involving theft or
dishonesty such that it did not affect his advice. Id. at PageID.953â954.
Counsel stated that he did not call Ervingâs mother to testify at trial
because of the DNA evidence and credibility concerns. Id. at PageID.954â
955.
Ervingâs mother testified that she met with trial counsel about
three times and told him that Erving drove a Lexus not a burgundy
Malibu and that he âdidnât have no hairâ in 2011. Id. at PageID.976â978.
Erving testified that he told trial counsel that he did not have hair
or a beard in 2011 and that he did not have a red Chevrolet in 2011, but
drove a Lexus. Id. at PageID.982â983. He recalled discussing whether he
should testify at trial and stated that counsel advised him not to testify
because he had a prior criminal history. Id. at PageID.983â985. Erving
claimed that he had consensual sex with the victim for money and denied
raping her. Id. at PageID.990â991. Erving admitted that he was asked
about testifying at trial and that he told the trial court that it was his
choice not to testify and that he had not been promised anything or
threatened. Id. at PageID.991.
At the close of the hearing, the trial court concluded that Erving
failed to show that trial counsel was ineffective and denied the motion for
new trial. Id. at PageID.1005â1006.
Erving then filed an appeal of right with the Michigan Court of
Appeals essentially raising the same claims presented on habeas review.
The court denied relief on those claims and affirmed his convictions and
sentences. Erving, 2020 WL 5582263 at *2â8. Erving also filed an
application for leave to appeal with the Michigan Supreme Court, which
was denied in a standard order. People v. Erving, 507 Mich. 931, 957
N.W.2d 781 (2021).
Erving, through counsel, thereafter filed his federal habeas
petition. He raises the following claims:
I. The Michigan Courts unreasonably applied Supreme
Court law in denying him a new trial where the trial
judge, in her previous occupation as an assistant
prosecuting attorney, prosecuted him for an assault
which resulted in an acquittal, and she should have
recused herself to avoid the appearance of impropriety.
II. The Michigan Courts unreasonably applied Supreme
Court law in denying him a new trial where he was
denied his right to confrontation and a fair trial by the
introduction, over objection, of complainantâs
preliminary examination testimony.
III. The Michigan Courts unreasonably applied Supreme
Court law in denying him a new trial where complainant
was deemed unavailable to testify in person at trial, and
that the prosecution was permitted to read her prior
recorded testimony from the preliminary examination to
the jury, as the prosecution failed to present a sufficient
demonstration of the exercise of due diligence to ensure
her appearance, thus denying him his constitutional
right to confront his accuser.
IV. The Michigan Courts unreasonably applied Supreme
Court law in denying him a new trial where counsel
rendered ineffective assistance by advising him that his
prior convictions were impeachable, thereby causing
him to remain silent and not describe his 2011
appearance and vehicle and not explain how his DNA
became located on complainant where there was
evidence that unknown male DNA was also present and
by failing to call him and others to testify that in 2011
he did not drive a burgundy Impala and was clean
shaven.
See Pet., ECF No. 3, PageID.158â159. Respondent has filed an answer to
the petition contending that it should be denied because the claims lack
merit. Ans., ECF No. 9.
II. LEGAL STANDARDS
The Antiterrorism and Effective Death Penalty Act of 1996
(âAEDPAâ), codified at 28 U.S.C. §§ 2241â2255, sets forth the standard of
review that federal courts must use when considering habeas petitions
brought by prisoners challenging their state convictions. AEDPA
provides in relevant part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim â
(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 on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
âA state courtâs decision is âcontrary toâ ... clearly established law if
it âapplies a rule that contradicts the governing law set forth in [Supreme
Court cases]â or if it âconfronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [that] precedent.ââ Mitchell
v. Esparza, 540 U.S. 12, 15â16 (2003) (per curiam) (quoting Williams v.
Taylor, 529 U.S. 362, 405â406 (2000)); see also Bell v. Cone, 535 U.S. 685,
694 (2002). â[T]he âunreasonable applicationâ prong of § 2254(d)(1)
permits a federal habeas court to âgrant the writ if the state court
identifies the correct governing legal principle from [the Supreme] Court
but unreasonably applies that principle to the factsâ of petitionerâs case.â
Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S.
at 413); see also Bell, 535 U.S. at 694. However, â[i]n order for a federal
court to find a state courtâs application of [Supreme Court] precedent
âunreasonable,â the state courtâs decision must have been more than
incorrect or erroneous. The state courtâs application must have been
âobjectively unreasonable.ââ Wiggins, 539 U.S. at 520â521 (citations
omitted); see also Williams, 529 U.S. at 409. The âAEDPA thus imposes
a âhighly deferential standard for evaluating state-court rulings,â and
âdemands that state-court decisions be given the benefit of the doubt.ââ
Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521
U.S. 320, 333 n.7 (2010); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
curiam)).
A state courtâs determination that a claim lacks merit âprecludes
federal habeas relief so long as âfairminded jurists could disagreeâ on the
correctness of the state courtâs decision.â Harrington v. Richter, 562 U.S.
86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The Supreme Court has emphasized âthat even a strong case for relief
does not mean the state courtâs contrary conclusion was unreasonable.â
Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Under § 2254(d),
âa habeas court must determine what arguments or theories supported
or ... could have supported, the state courtâs decision; and then it must
ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior
decisionâ of the Supreme Court. Id. at 102.
Thus, in order to obtain habeas relief in federal court, a state
prisoner must show that the state courtâs rejection of his claim âwas so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.â Id. at 103; see also White v. Woodall, 572 U.S. 415, 419â
420 (2014). Federal judges âare required to afford state courts due respect
by overturning their decisions only when there could be no reasonable
dispute that they were wrong.â Woods v. Donald, 575 U.S. 312, 316
(2015). A petitioner cannot prevail as long as it is within the ârealm of
possibilityâ that fairminded jurists could find the state court decision to
be reasonable. Woods v. Etherton, 578 U.S. 113, 118 (2016).
Section 2254(d)(1) limits a federal habeas courtâs review to a
determination of whether the state courtâs decision comports with clearly
established federal law as determined by the Supreme Court at the time
the state conviction became final. Williams, 529 U.S. at 412; see also
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the
Supreme Court âhas held on numerous occasions that it is not âan
unreasonable application of clearly established Federal lawâ for a state
court to decline to apply a specific legal rule that has not been squarely
established by this Courtâ) (citing Wright v. Van Patten, 552 U.S. 120,
123 (2008) (per curiam)); Lockyer, 538 U.S. at 71â72. Section 2254(d)
âdoes not require a state court to give reasons before its decision can be
deemed to have been âadjudicated on the merits.ââ Harrington, 562 U.S.
at 100. Furthermore, it âdoes not require citation of [Supreme Court]
cases â indeed, it does not even require awareness of [Supreme Court]
cases, so long as neither the reasoning nor the result of the state-court
decision contradicts them.â Early v. Packer, 537 U.S. 3, 8 (2002); see also
Mitchell, 540 U.S. at 16.
The requirements of clearly established law are to be determined
solely by Supreme Court precedent. Thus, âcircuit precedent does not
constitute âclearly established Federal law, as determined by the
Supreme Courtââ and it cannot provide the basis for federal habeas relief.
Parker v. Matthews, 567 U.S. 37, 48â49 (2012) (per curiam); see also
Lopez v. Smith, 574 U.S. 1, 6 (2014) (per curiam). The decisions of lower
federal courts, however, may be useful in assessing the reasonableness of
the state courtâs resolution of an issue. Stewart v. Erwin, 503 F.3d 488,
493 (6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th
Cir. 2003)); Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich. 2002).
A state courtâs factual determinations are presumed correct on
federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner
may rebut this presumption only with clear and convincing evidence.
Warren v. Smith, 161 F.3d 358, 360â361 (6th Cir. 1998). Moreover,
habeas review is âlimited to the record that was before the state court.â
Cullen v. Pinholster, 563 U.S. 170, 180 (2011).
III. DISCUSSION
A. Judicial Bias Claim
Erving first asserts that he is entitled to habeas relief due to the
appearance of judicial bias because the state trial judge did not recuse
herself from his case even though she had previously, unsuccessfully
prosecuted him in an unrelated criminal case. Respondent contends that
this claim lacks merit.
The Due Process Clause of the Fourteenth Amendment requires a
fair trial in a fair tribunal before a judge with no actual bias against the
defendant or an interest in the outcome of the case. See Bracy v. Gramley,
520 U.S. 899, 904â905 (1997). Judicial misconduct claims involve two
types of cases. One kind addresses charges of judicial bias stemming from
a trial judgeâs personal interest in the outcome of a case, usually derived
from some extrajudicial association with the cause or one of the parties.
See In re Murchison, 349 U.S. 133, 136 (1955) (âno man is permitted to
try cases where he has an interest in the outcomeâ). The second kind
concerns charges of judicial misconduct in which the trial judge is
accused of conducting the proceedings in a manner which exhibits a
âdeep-seated favoritism or antagonism that would make fair judgment
impossible.â Liteky v. United States, 510 U.S. 540, 555â556 (1994).
Adverse rulings themselves are not sufficient to establish bias or
prejudice. See Liteky, 510 U.S. at 555 (âjudicial rulings alone almost never
constitute a valid basis for a bias or partiality motionâ); A constitutional
violation occurs only when a judgeâs rulings or statements show âa
predisposition âso extreme as to display clear inability to render fair
judgment.ââ Johnson v. Bagley, 544 F.3d 592, 597 (6th Cir. 2008) (citation
omitted). In reviewing a judicial bias claim, a federal habeas court should
presume that the trial judge properly discharged his or her official duties.
Johnson v. Warren, 344 F. Supp. 2d 1081, 1093 (E.D. Mich. 2004).
The Michigan Court of Appeals considered this claim on direct
appeal and denied relief, essentially finding that it was unsupported. The
court explained in relevant part:
âThe right to a fair tribunal is a right grounded in due
process.â People v. Lowenstein, 118 Mich. App. 475, 482â483;
325 N.W.2d 462 (1982). The party asserting that a judge is
biased must overcome the heavy presumption of judicial
impartiality. Wade, 283 Mich. App. at 470. In general, MCR
2.003 governs when disqualification of a judge is warranted.
Defendantâs argument for recusal â that the trial judge
appeared biased based on her prior prosecution of defendant
â is addressed in MCR 2.003(C)(1)(b), which states that
disqualification is warranted when:
(b) The judge, based on objective and reasonable
perceptions, has either (i) a serious risk of actual
bias impacting the due process rights of a party as
enunciated in Caperton v. Massey, [556 U.S. 868];
129 S. Ct. 2252; 173 L. Ed. 2d 1208 (2009), or (ii)
has failed to adhere to the appearance of
impropriety standard set forth in Canon 2 of the
Michigan Code of Judicial Conduct. [MCR
2.003(C)(1)(b).]
Defendant does not contend that the trial judge failed to
adhere to the appearance of impropriety standard set forth in
Canon 2 of the Michigan Code of Judicial Conduct. Instead,
defendant argues that the trial judge should have recused
herself because a reasonable and objective person could
perceive a serious risk of actual bias implicating due process
based on the trial judgeâs previous prosecution of defendant.
Yet defendantâs assertion is broad, and he does not relate it to
the facts of this case. That is, he appears to assert that it is a
per se rule that if a trial judge previously prosecuted a
defendant for a separate crime, then recusal is required.
Defendant cites no authority for such an assertion, persuasive
or otherwise, and we believe that such a per se rule is neither
necessary nor warranted. A prosecutorâs role is to seek justice,
not merely convict defendants. People v. Dobek, 274 Mich.
App. 58, 63; 732 N.W.2d 546 (2007). Yet prosecutors are
people, and Caperton, 556 U.S. at 883, requires âa realistic
appraisal of psychological tendencies and human weakness.â
Thus, we recognize that it is possible for a prosecutor-turned-
judge to harbor ill-will towards a defendant that was
acquitted in a separate criminal case that the judge
prosecuted. On the other hand, it seems equally (if not more)
likely that a prosecutor-turned-judge could view a defendantâs
acquittal on a separate case that the judge prosecuted as
justice being served. See Dobek, 274 Mich. App. at 63. We
therefore conclude that the mere fact that a trial judge
previously prosecuted a defendant for a separate crime does
not, standing alone, require recusal. Rather, there must be
some fact beyond the trial judgeâs previous prosecution of a
defendant for a separate crime to give rise to an objective
perception of a serious risk of actual bias. Because the trial
judgeâs previous prosecution of defendant is not by itself
sufficient to require the judge to recuse herself, and defendant
does not point to any additional facts about the previous
prosecution that may suggest a serious risk of actual bias,
defendant has failed to overcome the heavy presumption of
judicial impartiality.
Erving, 2020 WL 5582263 at *2 (footnotes omitted).
The state courtâs decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts.
There is no per se rule or due process requirement that mandates recusal
of a trial judge because he or she previously prosecuted a defendant. See,
e.g., Corbett v. Bordenkircher, 615 F.2d 722, 724 (6th Cir. 1980); Jenkins
v. Bordenkircher, 611 F.2d 162, 166 (6th Cir. 1979) (âWe have found no
habeas corpus case which holds that it is a denial of due process for a
judge to preside over a jury trial in a criminal case where the judge, as a
prosecutor, had previously been involved in proceedings against the
defendant in entirely unrelated cases.â). âAbsent some showing of
hostility or prejudgmentâ a habeas court does do not âassume that a state
court judge would not be able to give a defendant a fair trial solely
because of his earlier contacts with the defendant in prosecuting totally
unrelated charges.â Jenkins, 611 F.2d at 166.
In this case, Erving fails to provide a sufficient factual basis to
support this claim. He does not cite to any instances in the record where
the trial judge exhibited actual bias or was prejudiced against him.
Conclusory allegations without evidentiary support are insufficient to
warrant federal habeas relief. See, e.g., Cross v. Stovall, 238 F. Appâx 32,
39â40 (6th Cir. 2007); Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998)
(conclusory allegations of ineffective assistance of counsel do not justify
habeas relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir.
2006) (bald assertions and conclusory allegations do not provide a basis
for an evidentiary hearing on habeas review).
Moreover, as discussed by Respondent, see Ans., ECF No. 9,
PageID.337â338, the record reveals that the trial court took steps to
ensure that the trial was conducted in a fair manner. Erving fails to show
that the trial judge was biased against him or that she should have
recused herself from his case. Habeas relief is not warranted on this
claim.
B. Confrontation Claim
Erving next asserts that he is entitled to habeas relief because the
victim did not testify at trial and the trial court admitted her preliminary
examination testimony in violation of his confrontation rights.
Respondent contends that this claim lacks merit.
The Confrontation Clause of the Sixth Amendment guarantees a
criminal defendant the right to confront the witnesses against him or
her. U.S. Const., Am. VI. One of the main concerns of the Confrontation
Clause is to ensure the reliability of evidence through cross-
examination. Maryland v. Craig, 497 U.S. 836, 845 (1990). The
Confrontation Clause thus 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, 55â59 (2004).
While the Sixth Circuit has noted that there is âsome question
whether a preliminary hearing necessarily offers an adequate prior
opportunity for cross-examination for Confrontation Clause purposes,â
AlâTimimi v. Jackson, 379 F. Appâx 435, 437â438 (6th Cir. 2010)
(discussing Vasquez v. Jones, 496 F.3d 564, 577 (6th Cir. 2007)), the
Supreme Court has never held that a defendant is denied the right of
confrontation when a witness is unavailable at trial and the court admits
the witnessâs preliminary examination testimony. Id. at 438.
In fact, the Supreme Court has found no Confrontation Clause
violation by the admission of an unavailable witnessâs prior testimony
when there was an opportunity for cross-examination at the prior
proceeding. See Mattox v. United States, 156 U.S. 237 (1895) (prior trial
testimony); see also Barber v. Page, 390 U.S. 719, 725â726 (1968) (âthere
may be some justification for holding that the opportunity for cross-
examination of a witness at a preliminary hearing satisfies the demand
of the confrontation clauseâ).
The Michigan Court of Appeals considered this issue under state
and federal law on direct appeal and denied relief, essentially finding
that the victimâs preliminary examination testimony was properly
admitted under state law and that Ervingâs confrontation rights were not
violated because the victim was unavailable and he had an adequate
opportunity to cross-examine her at the preliminary examination. The
court explained:
ââHearsayâ is a statement, other than the one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.â MRE
801(c). Hearsay is inadmissible unless otherwise provided in
the Rules of Evidence. MRE 802. MRE 804(b) provides several
hearsay exceptions when a declarant is âunavailableâ for one
of the reasons provided in MRE 804(a). As relevant to this
case, MRE 804(b)(1) states:
(b) Hearsay Exceptions. The following are not
excluded by the hearsay rule if the declarant is
unavailable as a witness:
(1) Former Testimony. Testimony given as a
witness at another hearing of the same or a
different proceeding, if the party against
whom the testimony is now offered, or, in a
civil action or proceeding, a predecessor in
interest, had an opportunity and similar
motive to develop the testimony by direct,
cross, or redirect examination.
Thus, former testimony is admissible as an exception to
hearsay so long as the witness is unavailable and was subject
to cross-examination during the prior testimony. If these
requirements are met, the Confrontation Clause does not bar
the former testimony. People v. Garland, 286 Mich. App. 1, 7;
777 N.W.2d 732 (2009) (âFormer testimony is admissible at
trial under both MRE 804(b)(1) and the Confrontation Clause
as long as the witness is unavailable for trial and was subject
to cross-examination during the prior testimony.â).
There is no dispute that the victimâs testimony given at
defendantâs preliminary examination constitutes testimony
given âat another hearing of the same or a different
proceeding ...â MRE 804(b)(1). See People v. Garay, 320 Mich.
App. 29, 37; 903 N.W.2d 883 (2017), overruled in part on other
grounds People v. Skinner, 502 Mich. 89; 917 N.W.2d 292
(2018). Defendant argues on appeal, however, that he did not
have a similar motive to cross-examine the victim at
defendantâs preliminary examination. This Court has given a
list of non-exhaustive factors to consider when evaluating
whether a party had a similar motive to develop the former
testimony as required in MRE 804(b)(1):
(1) whether the party opposing the testimony had
at a prior proceeding an interest of substantially
similar intensity to prove (or disprove) the same
side of a substantially similar issue; (2) the nature
of the two proceedings â both what is at stake and
the applicable burden of proof; and (3) whether the
party opposing the testimony in fact undertook to
cross-examine the witness (both the employed and
available but forgone opportunities).
[Farquharson, 274 Mich. App. at 278 (quotation
marks omitted).]
With regard to the first factor, defendant argues that he did
not have an interest of substantially similar intensity to
disprove whether defendant kidnapped and sexually
assaulted the victim by force at the preliminary examination,
as he did at trial. Defendant contends that the preliminary
examination was not a proceeding where the truth of the
matter was able to be examined. We disagree. The purpose of
a preliminary examination is âto determine if a crime has
been committed and, if so, if there is probable cause to believe
the defendant committed it.â People v. Johnson, 427 Mich. 98,
104; 398 N.W.2d 219 (1986) (quotation marks and citation
omitted). The prosecutionâs purpose in presenting the victimâs
testimony at defendantâs preliminary examination was to
establish a reasonable belief that defendant was guilty of
sexually assaulting the victim during the commission of the
felony of kidnapping. The prosecution read the victimâs
testimony at defendantâs trial for the same reason â to
establish that defendant kidnapped the victim and penetrated
the victim during the kidnapping. Therefore, defendant had
an interest of substantially similar intensity in proving or
disproving the victimâs testimony. See Garay, 320 Mich. App.
at 37â38 (holding that, at a preliminary examination hearing,
the defendant had âan interest of substantially similar
intensity in proving or disprovingâ the testimony of two
witnesses as he did at his trial because the prosecution
presented the witnesses at the preliminary examination
testimony to submit the same evidence that it used the
witnesses to submit at trial) (quotation marks omitted).
For the second factor, defendant argues that because the
applicable burden of proof at the preliminary examination
was lower than it was at trial, see People v. Yost, 468 Mich.
122, 126; 659 N.W.2d 604 (2003), he approached his line of
questioning differently and, thus, did not have a similar
motive to develop the victimâs testimony at the preliminary
examination as he would at trial. This argument ignores that
the same issues were at stake in both proceedings, and that,
even though the burden of proof was lower, defendant had a
similar motive in each proceeding to disprove the victimâs
testimony. See Garay, 320 Mich. App. at 38 (âAdditionally,
although the burden of proof was lower at the preliminary
examination, defendant had a similar motive to cross-
examine N and T at both proceedings â defendant was
motivated to show that their testimony regarding what they
saw and heard from their porch lacked credibility or was not
accurate.â) (Citations omitted.)
As for the third factor, defendant concedes that he cross-
examined the victim at his preliminary examination. Though
he concedes this point, defendant argues that he should still
not be considered to have had the âopportunityâ to cross-
examine the victim as required by both MRE 804(b)(1) and
the Confrontation Clause. Clearly, however, defendant had
the opportunity to cross-examine the victim as required under
MRE 804(b)(1). See, e.g., People v. Meredith, 459 Mich. 62, 67;
586 N.W.2d 538 (1998) (holding that the defendant, who chose
not to cross-examine a witness at the preliminary
examination, had the âopportunityâ to do so). Indeed,
defendant took advantage of his opportunity and cross-
examined the victim. Turning to defendantâs related-
Confrontation Clause argument, âthe Confrontation Clause
guarantees only an opportunity for effective cross-
examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might
wish.â Kentucky v. Stincer, 482 U.S. 730, 739; 107 S. Ct. 2658;
96 L. Ed. 2d 631 (1987) (quotation marks and citation
omitted). Again, defendant clearly had the opportunity for
effective cross-examination of the victim at defendantâs
preliminary examination, so the Confrontation Clause is
satisfied. See Meredith, 459 Mich. 62 at 71 (âAgain, the fact
that MRE 804(b)(1) is a firmly rooted exception means that,
for present purposes, the prior testimony of the courier bears
satisfactory indicia of reliability. The Confrontation Clause is
satisfied, and the testimony is admissible.â).
In sum, (1) the trial court properly concluded that the victimâs
testimony from defendantâs preliminary examination was
admissible at defendantâs trial under MRE 804(b)(1) and (2)
the admission of the testimony did not violate defendantâs
right to confrontation because defendant had the opportunity
to cross-examine the victim at his preliminary examination.
Erving, 2020 WL 5582263, at *4â6 (alterations in original).
The state courtâs decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts. The
record shows that the victim was unavailable at trial because although
she initially appeared on the first day of trial, she was not called to testify
and subsequently failed to appear on the second day of trial. Trial Tr.,
ECF No. 10-8, PageID.738â739. The prosecutionâs multi-day effort to
locate her and produce her to testify at trial were unsuccessful. Id. at
PageID.739, 791â792; Trial Tr., ECF No. 10-9, PageID.799â800; Trial
Tr., ECF No. 10-10, PageID.808â809. The record further indicates that
the trial court conducted a preliminary examination in which both
parties had the opportunity to question the victim and, in fact, did so.
Prelim. Ex. Tr., ECF No. 10-3. Because the victim was unavailable to
testify at trial and Erving had an adequate opportunity, and the same
motive, to question her at the preliminary examination, his confrontation
rights were not violated by the admission of her preliminary examination
testimony at trial. See Al-Timimi, 379 F. Appâx at 438â440; see also
Williams v. Bauman, 759 F.3d 630, 636 (6th Cir. 2014) (citing AlâTimimi
and denying habeas relief on similar claim). Habeas relief is not
warranted on this claim.
C. Due Diligence Claim
Erving relatedly asserts that he is entitled to habeas relief because
the prosecution did not exercise due diligence in attempting to secure the
victimâs presence to testify at trial. Respondent contends that this claim
lacks merit.
A witness is âunavailableâ for purposes of the exception to the
confrontation requirement if the prosecution makes a good faith effort to
obtain the witnessâs presence at trial. Barber, 390 U.S. at 725â26; Winn
v. Renico, 175 F. Appâx 728, 733 (6th Cir. 2006). When a witness refuses
to testify, he or she is unavailable whether the refusal to testify is based
upon privilege or is punishable by contempt. See United States v.
Bourjaily, 781 F.2d 539, 544 (6th Cir. 1986) (quoting Mayes v. Sowders,
621 F.2d 850, 856 (6th Cir. 1980)). The lengths to which the prosecution
must go to produce a witness is a question of reasonableness. Hardy v.
Cross, 565 U.S. 65, 70 (2011); United States v. Chung, 350 F. Appâx 19,
23 (6th Cir. 2009). âThe ultimate question is whether the witness is
unavailable despite good-faith efforts undertaken prior to trial to locate
and present that witness. . . . The prosecution bears the burden of proof
in this regard.â Winn, 175 F. Appâx at 733 (citations omitted).
The Michigan Court of Appeals considered this claim as a matter of
state and federal law on direct appeal and denied relief, concluding that
the prosecution made a good faith effort to secure the victimâs testimony
at trial. The court explained:
The victim was declared unavailable under MRE 804(a)(5),
which states:
(a) Definition of Unavailability. âUnavailability as
a witnessâ includes situations in which the
declarant--
* * *
(5) is absent from the hearing and the proponent
of a statement has been unable to procure the
declarantâs attendance (or in the case of a hearsay
exception under subdivision (b)(2), (3), or (4), the
declarantâs attendance or testimony) by process or
other reasonable means, and in a criminal case,
due diligence is shown.
âThe test for whether a witness is âunavailableâ as envisioned
by MRE 804(a)(5) is that the prosecution must have made a
diligent good-faith effort in its attempt to locate a witness for
trial.â Bean, 457 Mich. at 684. âThe test is one of
reasonableness and depends on the facts and circumstances
of each case, i.e., whether diligent good-faith efforts were
made to procure the testimony, not whether more stringent
efforts would have produced it.â Id.
Defendant contends the prosecution failed to show that
reasonable, good-faith efforts were made to locate the victim.
Defendantâs argument is unavailing.
The prosecution personally served the victim with a subpoena
for her appearance at trial. On the first day of trial, the
prosecution sent a Lyft vehicle to the victimâs home and
transported the victim to court. The victim was not called to
testify but waited in the witness room with the victim
advocate and Detective Swift. On the second day of trial, the
prosecution again sent a Lyft vehicle to the victimâs home, and
the victim sent a text message to the victim advocate stating
that she was on her way to court. However, for unknown
reasons, the victim failed to appear.
The prosecution thereafter attempted to locate and procure
the victimâs presence by: (1) calling the victimâs cellular
telephone on multiple occasions; (2) sending detectives to the
victimâs home, both in the morning and in the afternoon, and
to another location where the victim often stayed; (3)
contacting the victimâs brother; and (4) contacting the Wayne
County Jail. Despite these efforts, the prosecution was unable
to locate the victim. The prosecution did not request a witness
detainer at the end of the second day of trial.
When the victim failed to appear on the third day of trial,
however, the prosecution did request a witness detainer. The
prosecution explained that after the second day of trial, it sent
detectives to the victimâs home and checked the hospitals,
jails, and morgue, but was unable to locate the victim. The
prosecution represented that neither the victimâs brother nor
boyfriend had been able to contact the victim, and that the
victimâs family was concerned.
On the fourth day of trial, the victim again failed to appear.
The prosecution stated that it again had detectives search for
the victim at multiple addresses, and contacted the victimâs
brother, boyfriend, hospitals, jails, morgue, and the DPD, but
was still unable to locate the victim. It was at that time that
the prosecution requested that the victim be declared
unavailable under MRE 804b and that her testimony from
defendantâs preliminary examination be read into the record.
The trial court did not err by finding the prosecution exercised
due diligence in its effort to locate the victim and secure her
presence for trial. The prosecution subpoenaed the witness
and secured her presence for the first day of trial. The
prosecution attempted to do the same on the second day of
trial, but the victim failed to appear for unknown reasons. The
prosecution then spent the next two days using the resources
reasonably available to it to locate the victim â it sent
detectives to the victimâs home and places that she was known
to stay, it contacted members of the victimâs family and others
close to the victim that may have known her whereabouts,
and it checked various places that the victim could be where
she may be unable to contact others (hospitals, jails, and the
morgue). Defendant faults the prosecution for not requesting
a witness detainer on the second day of trial, and while
defendant is correct that the prosecution could have done so,
our review is of the prosecutionâs actual efforts to secure the
victimâs presence, ânot whether more stringent efforts would
have produced it.â Id. Based on the prosecutionâs efforts to
obtain the victimâs presence outlined above, we conclude that
the prosecution made a diligent good-faith effort to locate a
victim for trial.
Erving, 2020 WL 5582263 at *3â4.
The state courtâs decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts. The
record reveals that the prosecution made a diligent, good faith effort to
secure the victimâs appearance and testimony at trial. As explained by
the Michigan Court of Appeals, the prosecution subpoenaed the victim
and secured her presence for the first day of trial. The prosecution
attempted to do the same on the second day of trial, but the victim failed
to appear. The prosecution then spent two more days trying to locate the
victim by sending detectives to the victimâs home and places where she
stayed, contacting the victimâs family and friends, and checking places
such as hospitals, jails, the police department, and the morgue. The
prosecution also obtained a witness detainer on the third day of trial.
Trial Tr., ECF No. 10-8, PageID.738â739, 791â792; Trial Tr., ECF No.
10-9, PageID.799â800; Trial Tr., ECF No. 10-10, PageID.808â809. Such
efforts, while unsuccessful, were reasonable and undertaken in good
faith. While Erving contends that the prosecution could have done more
to secure the victimâs appearance, he fails to establish that the
prosecutionâs actions were anything less than diligent. Habeas relief is
not warranted on this claim.
D. Ineffective Assistance of Trial Counsel Claims
Lastly, Erving asserts that he is entitled to habeas relief because
trial counsel was ineffective for advising him that he could be impeached
with prior convictions thereby causing him not to testify at trial and for
failing to have him and/or witnesses testify that he did not drive a
burgundy Impala and was clean shaven in 2011. Respondent contends
that these claims lack merit.
The Sixth Amendment to the United States Constitution
guarantees a criminal defendant the right to the effective assistance of
counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme
Court set forth a two-prong test for determining whether a habeas
petitioner has received ineffective assistance of counsel. First, a
petitioner must prove that counselâs performance was deficient. This
requires a showing that counsel made errors so serious that he or she was
not functioning as the âcounselâ guaranteed by the Sixth Amendment. Id.
at 687. Second, the petitioner must establish that counselâs deficient
performance prejudiced the defense. Id. Counselâs errors must have been
so serious that they deprived the petitioner of a fair trial or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts
that were âoutside the wide range of professionally competent
assistance.â Id. at 690. The reviewing courtâs scrutiny of counselâs
performance is highly deferential. Id. at 689. There is a strong
presumption that trial counsel rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional
judgment. Id. at 689â90. The petitioner bears the burden of overcoming
the presumption that the challenged actions were sound trial strategy.
Id. at 696.
As to the prejudice prong, a petitioner must show that âthere is a
reasonable probability that, but for counselâs unprofessional errors, the
result of the proceeding would have been different.â Id. at 694. A
reasonable probability is one that is sufficient to undermine confidence
in the outcome of the proceeding. Id. On balance, â[t]he benchmark for
judging any claim of ineffectiveness must be whether counselâs conduct
so undermined the proper functioning of the adversarial process that the
[proceeding] cannot be relied on as having produced a just result.â Id. at
686.
The Supreme Court has confirmed that a federal courtâs
consideration of ineffective assistance of counsel claims arising from
state criminal proceedings is quite limited on habeas review due to the
deference accorded trial attorneys and state appellate courts reviewing
their performance. âThe standards created by Strickland and § 2254(d)
are both âhighly deferential,â and when the two apply in tandem, review
is âdoublyâ so.â Harrington, 562 U.S. at 105 (citations omitted). âWhen
§ 2254(d) applies, the question is not whether counselâs actions were
reasonable. The question is whether there is any reasonable argument
that counsel satisfied Stricklandâs deferential standard.â Id.
The Michigan Court of Appeals considered these claims on direct
appeal and denied relief, concluding that Erving failed to show that trial
counsel was ineffective under the Strickland standard. The court
explained in relevant part:
Defendant argues that if defense counsel had not given him
legally incorrect advice, he would have testified and explained
(1) the presence of his DNA on the victimâs thigh and (2) that,
in 2011, he did not resemble the assailant that the victim
described nor did he drive a car resembling the one the victim
described. Yet even assuming that defense counsel gave
defendant legally incorrect advice and that this constituted
deficient performance, there is not a reasonable probability
that defendantâs testimony would have affected the outcome
of the proceedings.
First, defense counsel already presented to the jury
defendantâs theory about why his DNA was found on the
victimâs thigh. Defense counsel argued to the jury that the
victim was a prostitute, that defendant engaged in consensual
sex with the victim in exchange for money, and the victim was
brutally raped by someone else after defendant left. The jury
apparently rejected this theory and convicted defendant.
Defendant does not explain why his testimony repeating his
theory to the jury would have led to a different outcome.
Second, the evidence that defendant did not drive an Impala
in 2011 was already before the jury. During defense counselâs
cross-examination of Detective Swift at trial, Detective Swift
stated that her investigation revealed that neither defendant
nor anyone in his family ever owned an Impala.
As for defendantâs final argument â that he could have
testified that, in 2011, he did not resemble the assailant that
the victim described â defendant does not establish a
reasonable probability that the outcome would have been
different had this testimony been offered. Defendantâs
argument centers on the fact that the victim testified that her
assailant had a beard, and defendant contends that he did not
have a beard in 2011. While defendant is correct that the
victim testified that her assailant had a beard, she testified
that it was âsmallerâ than the one defendant had at the time
she was testifying. Moreover, Detective Swift testified that
the victim described her assailant as âa black male around 39
to 40 years old, dark complected, six foot in height, medium
buildâ with âa round face,â and defendant does not explain
how his appearance in 2011 did not meet this description.
Most importantly, the victim identified defendant as her
assailant at her preliminary examination, and this
identification was supported by the finding of defendantâs
DNA in a sperm fraction sample taken from the victimâs right
interior thigh. In light of (1) the fact that the victimâs
identification of defendant was supported by DNA found in a
sperm sample taken from the victimâs thigh and (2) the fact
that defendant matched the description of the victimâs
assailant that the victim gave to Detective Swift, there is not
a reasonable probability that the jury would have discredited
the victimâs identification of defendant as her assailant if
defendant testified that he did not have a beard when the
victim was assaulted in 2011.
Defendantâs argument that defense counsel was ineffective for
not calling additional witnesses fails for similar reasons.
Defendant argues that if defense counsel would have called
defendantâs mother, she could have testified that in 2011,
defendant did not drive a burgundy Impala, and that his
appearance in 2011 differed from that reported by the victim
because he had a shaved face in 2011. But, again, defense
counsel elicited from Detective Swift that defendant did not
drive an Impala in 2011. And for the reasons already
explained, defendant fails to establish that there is not a
reasonable probability that, had the jury been told that
defendant had a shaved face in 2011, the results of the
proceedings would have been different.
Erving, 2020 WL 5582263 at *7â8.
The state courtâs decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts. It
is well-settled that a criminal defendant has a constitutional right to
testify in his or her own defense or to refuse to do so. Rock v. Arkansas,
483 U.S. 44, 53 (1987). âThe right to testify is personal to the defendant,
may be relinquished only by the defendant, and the defendantâs
relinquishment of the right must be knowing and intentional.â United
States v. Webber, 208 F.3d 545, 550â51 (6th Cir. 2000). Counselâs role is
to advise the defendant about whether to take the stand, but the final
decision is left to the defendant. Id. at 551; see also Jones v. Barnes, 463
U.S. 745, 751 (1983). On habeas review, there is âa strong presumption
that trial counsel adhered to the requirements of professional conduct
and left the final decision about whether to testify with the client.â Hodge
v. Haeberlin, 579 F.3d 637, 639 (6th Cir. 2009). If the defendant wants to
testify, he can reject his attorneyâs tactical decision by insisting on
testifying, speaking to the court, or discharging his lawyer. United States
v. Webber, 208 F.3d 545, 551 (6th Cir. 2000) (citing United States v.
Joelson, 7 F.3d 175, 177 (9th Cir. 1993)). If the defendant fails to do so,
waiver of the right to testify is presumed. Id.
It is also well-settled that defense counsel must conduct a
reasonable investigation into the facts of a defendantâs case or make a
reasonable determination that such investigation is unnecessary.
Wiggins, 539 U.S. at 522â523; Strickland, 466 U.S. at 691; Towns v.
Smith, 395 F.3d 251, 258 (6th Cir. 2005). The duty to investigate
âincludes the obligation to investigate all witnesses who may have
information concerning . . . guilt or innocence.â Towns, 395 F.3d at 258.
That being said, decisions as to what evidence to present and whether to
call certain witnesses are presumed to be matters of trial strategy. See,
e.g., King v. Westbrooks, 847 F.3d 788 (6th Cir. 2017). When making
strategic decisions, counselâs conduct must be reasonable. Roe v. Flores-
Ortega, 528 U.S. 470, 481 (2000); see also Wiggins, 539 U.S. at 522â523.
Courts find that in the context of a state habeas petition, failure to call
witnesses or present other evidence constitutes ineffective assistance of
counsel only when it deprives a defendant of a substantial defense.
Chegwidden v. Kapture, 92 F. Appâx 309, 311 (6th Cir. 2004).
In this case, Erving fails to show that trial counsel was ineffective
for advising him not to testify at trial. Erving confirmed on the record
that he did not want to testify at trial and that it was his decision not to
do so. Trial Tr., ECF No. 10-10, PageID.848â849. He thus fails to
overcome the presumption that he willingly agreed with counselâs advice
not to testify. See Gonzales v. Elo, 233 F.3d 348, 357 (6th Cir. 2000).
Erving also fails to refute the presumption that counselâs advice not
to testify was sound trial strategy. While Erving asserts that counsel mis-
advised him about whether he could be impeached with his prior
convictions, counsel refuted this claim at the evidentiary hearing.
Counsel indicated that he understood that Erving could not be impeached
with his prior convictions, that such a factor did not affect his advice, and
that he advised Erving not to testify after the victim failed to appear
because he could challenge the timeline of events better without Ervingâs
testimony. Such a decision was reasonable under the circumstances.
Moreover, had Erving testified, he would have been subject cross-
examination, which carries inherent risks of eliciting damaging
information. Ervingâs defense at trial was that he had consensual sex
with the victim in an area frequented by prostitutes, that he was not the
person who assaulted the victim, and that the presence of unidentified
DNA on the victim created a reasonable doubt about his guilt. Trial
counsel was able to present evidence and arguments in support of that
defense even without Ervingâs testimony. Erving was not deprived of a
substantial defense at trial. He fails to establish that trial counsel erred
and/or that he was prejudiced by counselâs conduct in this regard.
Erving similarly fails to show that trial counsel was ineffective for
failing to present evidence from him or other witnesses, e.g., his mother,
that he did not drive a burgundy Impala and was clean shaven in 2011.
As an initial matter, the Court notes that counsel did elicit testimony
from police witnesses that the victim described her assailantâs car as a
2009 Burgundy Impala and that neither Erving nor anyone in his
household owned such a car. Trial Tr., ECF No. 10-8, PageID.659, 683â
84. Consequently, this information was before the jury such that Ervingâs
(or another witnessâs) testimony was unnecessary and would have been
cumulative to the police testimony.
Additionally, as to Ervingâs appearance in 2011, the record
indicates that trial counsel did not investigate/present evidence about
whether Erving was clean-shaven in 2011 because he believed that the
victimâs description of her assailant was not strikingly different from
Ervingâs appearance and because Ervingâs DNA was found on the victim.
Such a strategic decision was reasonable.
Moreover, as previously discussed, Erving was not deprived of a
substantial defense at trial. Erving also fails to show that he was
prejudiced by counselâs conduct given that he fits the victimâs general
description of the assailant provided to police, Trial Tr., ECF No. 10-8,
PageID.658, that the victim identified him as her assailant at the
preliminary examination, Prelim. Ex. Tr., ECF No. 10-3, PageID.420;
Trial Tr., ECF No. 10-10, PageID.831 (preliminary examination
testimony read into record), and that his DNA was found on the victim.
Prelim. Ex. Tr., ECF No. 10-3, PageID.406â07; Trial Tr., ECF No. 10-8,
PageID.782. Given such circumstances, there is no reasonable
probability that evidence that Erving was clean shaven in 2011 would
have affected the outcome at trial. Erving fails to establish that trial
counsel erred and/or that he was prejudiced by counselâs conduct. Habeas
relief is not warranted on these claims.
IV. CONCLUSION
For the reasons above, the Court concludes that Erving is not
entitled to habeas relief on his claims. Accordingly, the Court DENIES
and DISMISSES WITH PREJUDICE the habeas petition.
Before Erving can appeal, a certificate of appealability must issue.
See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue only if the petitioner makes âa substantial
showing of the denial of a constitutional right.â 28 U.S.C. § 2253(c)(2).
When a court denies habeas relief on the merits, the substantial showing
threshold is met if the petitioner demonstrates that reasonable jurists
would find the courtâs assessment of the claim debatable or wrong. Slack
v. McDaniel, 529 U.S. 473, 484â485 (2000). âA petitioner satisfies this
standard by demonstrating that ... jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.â
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Erving makes no such
showing. Accordingly, the Court DENIES a certificate of appealability.
SO ORDERED.
Dated: September 19, 2025 /s/Terrence G. Berg
HON. TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE Case Information
- Court
- E.D. Mich.
- Decision Date
- September 19, 2025
- Status
- Precedential