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Full Opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAJEON FRANKLIN,
Petitioner, Civil No. 2:20-CV-12746
HONORABLE ARTHUR J. TARNOW
v. UNITED STATES DISTRICT JUDGE
WILLIS CHAPMAN,
Respondent.
____________________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS
CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY, AND
LEAVE TO APPEAL IN FORMA PAUPERIS
Dajeon Franklin, (âPetitionerâ), confined at the Macomb Correctional
Facility in New Haven, Michigan, filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for
first-degree felony murder, M.C.L.A. 750.316(1)(b), two counts of first-degree
home invasion, M.C.L.A. 750.110a(2), conspiracy to commit second-degree
home invasion, M.C.L.A. 750.110a(3), and possession of a firearm during the
commission of a felony, [felony-firearm], M.C.L.A. 750.227b. For the reasons that
follow, the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.
I. Background
Petitioner was convicted following a jury trial in the Washtenaw County
Circuit Court. âThe facts as recited by the Michigan Court of Appeals are
presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1).â Shimel
v. Warren, 838 F.3d 685, 688 (6th Cir. 2016). The facts are as follows:
A jury convicted defendant of first-degree felony murder, two counts
of first-degree home invasion, conspiracy to commit second-degree
home invasion, and possession of a firearm during the commission of
a felony (felony-firearm), for his role in a robbery spree and the murder
of University of Michigan medical student, Paul DeWolf.
******************************************************************************
I. BACKGROUND
On the night of July 23, 2013, defendant, Joei Jordan, and Shaquille
Jones drove from Ypsilanti to an Ann Arbor neighborhood where the
homes were divided into smaller units for rent by students. The trio
planned to break into houses to steal small, valuable items. The men
entered 210 North Ingalls Street through an open window and stole a
MacBook laptop and a purse. They then entered the neighboring
home, 220 North Ingalls Street, a medical society house that rented
individual bedrooms to students. While in the basement stealing a
video game system, the men heard one of the bedroom doors open
and the resident go inside. Despite knowing that someone was
present, defendant and his accomplices decided to enter that
bedroom.
When the trio entered the dark bedroom, DeWolf slowly stood up from
his bed and repeatedly asked, âWho is there?â No one responded.
Defendant moved toward DeWolf holding a handgun in one hand
aiming it at the victim. DeWolf reached for defendant or the gun, and
defendant pulled the gun back. Defendant then hit DeWolf with an
overhead swing of the gun and the gun discharged. Jones, Jordan,
and defendant ran out of the residence. Defendant told Jones and
Jordan that he shot DeWolf because he thought DeWolf had a knife
or was grabbing for the gun.
DeWolf died from his gunshot wound. The medical evidence
supported that the gun fired while it was sweeping downward. The
weapon was in close range to DeWolfâs clavicle and the bullet caused
severe damage as it travelled downward through his torso and out his
middle back. Defendant and his accomplices were apprehended after
officers traced the stolen items they sold and secured fingerprint
evidence from the two robbery scenes. Officers also discovered dots
of DeWolfâs blood on the shoes worn by defendant that night.
People v. Franklin, No. 325551, 2016 WL 1391305, at *1 (Mich. Ct. App. Apr. 7,
2016)(internal citations omitted).
Petitionerâs conviction was affirmed. Id., lv. den. 500 Mich. 933, 889
N.W.2d 269 (2017).
Petitioner filed a post-conviction motion for relief from judgment. The
motion was denied. People v. Franklin, No. 14-181-FC (Washtenaw County
Circuit Court, Nov. 19, 2018). The Michigan appellate courts denied petitioner
leave to appeal. People v. Franklin, No. 347139 (Mich. Ct. App. June 6, 2019); lv.
den. 505 Mich. 975, 937 N.W.2d 651 (2020).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. Defendant was denied his due process right when his arraignment
was unnecessarily delayed for 3 months after his arrest.
II. Defendant was denied his right to due process and right to be free
from unreasonable search(s) and seizure(s) when information
obtained from the illegal search of petitionerâs cellphone was admitted
and used as evidence against him during trial.
III. Defendant was denied his right to due process and right to confront
the witness against him when audio and transcript testimony was
admitted into evidence when the witness was incarcerated by the
courtâs authority and was available to testify at his trial.
IV. Defendant was denied his right to due process and right to
effective assistance of counsel when counselâs representation fell
below an objective standard of reasonableness, failing to conduct
reasonable investigations, to file motion to dismiss, to object to
prosecutorâs misconduct and to compel the prosecutor to produce his
accuser(s).
V. Defendant was denied his right to due process and right to a fair
trial by admitting autopsy and crime scene photographs of deceased
victim, where the prejudicial effect unfairly outweighed their probative
value.
VI. Defendant was denied his right to due process and right to
effective assistance of appellate counsel.
VII. Defendant was denied his due process right to a fair trial by the
admission of substantially and unfairly prejudicial âother actsâ
evidence that he had a gun on various occasions between 2009 and
the summer of 2013, where there was no evidence tying the âother
actsâ to the firearm used in the instant offense, such evidence had no
probative value, was used for prohibited purposes, and was unfairly
prejudicial to defendant.
VIII. The evidence of malice was insufficient: defendantâs conviction
represents a denial of due process and must be vacated, or, in the
alternative, reduced.
IX. Defendant was denied his right to due process and right to a fair
trial by prosecution vouching for the credibility of the âunavailableâ
witness during closing and rebuttal arguments.
II. Standard of Review
28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for
habeas cases:
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 claimâ
(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.
A decision of a state court is âcontrary toâ clearly established federal 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 âunreasonable applicationâ occurs
when âa state court decision unreasonably applies the law of [the Supreme
Court] to the facts of a prisonerâs case.â Id. at 409. A federal habeas court may
not âissue 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.â Id. at 410-11. â[A] state courtâs determination that
a claim lacks merit precludes 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)). Therefore, in order to obtain habeas relief in federal court, a state
prisoner is required to 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.
III. Discussion
A. The procedural default issue.
Respondent urges this Court to procedurally default petitionerâs first
through fifth claims and his ninth claim because petitioner raised them for the first
time in his post-conviction motion and failed to show cause and prejudice, as
required by M.C.R. 6.508(D)(3), for failing to raise them on his appeal of right.
Petitioner argues in his sixth claim that appellate counsel was ineffective
for failing to raise these claims on his appeal of right. Ineffective assistance of
counsel may establish cause for procedural default. Edwards v. Carpenter, 529
U.S. 446, 451-52 (2000). Given that the cause and prejudice inquiry for the
procedural default issue merges with an analysis of the merits of the defaulted
claims, it would be easier to consider the merits of the claims. See Cameron v.
Birkett, 348 F. Supp. 2d 825, 836 (E.D. Mich. 2004). Petitioner could not
procedurally default his ineffective assistance of appellate counsel claim because
post-conviction review was the first opportunity he had to raise this claim. See
Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010).
Respondent also argues that a portion of petitionerâs seventh claim
alleging the improper admission of other acts evidence is defaulted because
petitioner failed to object at trial. Because the same legal analysis applies to
both the preserved and unpreserved 404(b) claims, it would be easier to simply
address the merits of the unpreserved claim.
B. Claims # 1 and # 2. The Fourth Amendment claims.
Petitioner raises two Fourth Amendment challenges in his first and second
claims.
Petitioner in his first claim argues that the case should be dismissed
because of a three month delay in his arraignment following his arrest. In his
second claim, petitioner argues that his right to be free from an unreasonable
search and seizure was violated when information obtained from an illegal
search of petitionerâs cell phone was admitted into evidence.
A federal habeas review of a petitionerâs arrest or search by state police is
barred where the state has provided a full and fair opportunity to litigate an illegal
arrest or a search and seizure claim. Stone v. Powell, 428 U.S. 465, 494-95
(1976); Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000). For such an
opportunity to have existed, the state must have provided, in the abstract, a
mechanism by which the petitioner could raise the claim, and presentation of the
claim must not have been frustrated by a failure of that mechanism. Riley v.
Gray, 674 F.2d 522, 526 (6th Cir. 1982). The relevant inquiry is whether a
habeas petitioner had an opportunity to litigate his claims, not whether he in fact
did so or even whether the Fourth Amendment claim was correctly decided. See
Wynne v. Renico, 279 F. Supp. 2d 866, 892 (E.D. Mich. 2003); revâd on other
grds 606 F.3d 867 (6th Cir. 2010). Indeed, under Stone, the correctness of a
state courtâs conclusions regarding a Fourth Amendment claim âis simply
irrelevant.â See Brown v. Berghuis, 638 F. Supp, 2d 795, 812 (E.D. Mich. 2009).
âThe courts that have considered the matter âhave consistently held that an
erroneous determination of a habeas petitionerâs Fourth Amendment claim does
not overcome the Stone v. Powell bar.ââ Id. (quoting Gilmore v. Marks, 799 F.2d
51, 57 (3rd Cir. 1986)). Thus, an argument by a habeas petitioner that is
âdirected solely at the correctness of the state court decision [on a Fourth
Amendment claim] âgoes not to the fullness and fairness of his opportunity to
litigate the claim[s], but to the correctness of the state court resolution, an issue
which Stone v. Powell makes irrelevant.ââ Brown, 638 F. Supp. 2d at 812-13
(quoting Siripongs v. Calderon, 35 F.3d 1308, 1321 (9th Cir. 1994)).
Petitioner presented his Fourth Amendment claims in his post-conviction
motion for relief from judgment before the trial court and the Michigan appellate
courts. People v. Franklin, No. 14-181-FC, *2 (Washtenaw County Circuit Court,
Nov. 19, 2018)(ECF No. 15-17, PageID.596). Because petitioner was able to
raise his delay in arraignment and illegal search claims in his post-conviction
motion, petitioner had a full and fair opportunity to raise his Fourth Amendment
claims in the state courts and is thus not entitled to habeas relief. See Hurick v.
Woods, 672 F. Appâx 520, 535 (6th Cir. 2016).
C. Claim # 3. Unavailable witness/Confrontation Clause claims.
Petitioner in his third claim argues that the trial court erred in declaring co-
defendant Shaquille Jones unavailable at trial, so as to allow his preliminary
examination testimony to be read to the jury. Petitioner argues that the
admission of Mr. Jonesâ preliminary examination testimony violated his Sixth
Amendment right to confrontation. Petitioner contends that the police and
prosecutor failed to act with due diligence in securing Mr. Jonesâ attendance at
trial, thus, the judge erred in finding Mr. Jones unavailable to testify at trial and by
allowing his preliminary examination testimony to be read into evidence.
Petitionerâs trial counsel stipulated to the admission of Mr. Jonesâ
preliminary examination testimony at trial. (ECF No. 15-9, PageID.319).
Counselâs stipulation waives review of the claim.
Waiver is an ââintentional relinquishment of a known right.ââ United States v.
Olano, 507 U.S. 725, 733 (1993)(quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)). A criminal defendant who has waived his rights âmay not then seek
appellate review of claimed deprivation of those rights, for his waiver has
extinguished any error.â United States v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996)
(citing Olano, 507 U.S. at 733-34). See also Shahideh v. McKee, 488 F. Appâx
963, 965 (6th Cir. 2012)(âwaiver is a recognized, independent and adequate
state law ground for refusing to review alleged trial errorsâ). The right to
confrontation may be waived, including by a failure to object to the âoffending
evidence.â Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314, n. 3 (2009).
Because defense counsel stipulated to the admission of this evidence, petitioner
has waived review of his Confrontation Clause claim. See United States v. Chun
Ya Cheung, 350 F. Appâx 19, 21-22 (6th Cir. 2009). Moreover, a defendant in a
criminal case cannot complain of error which he himself has invited. Shields v.
United States, 273 U.S. 583, 586 (1927). When a petitioner invites an error in
the trial court, he is precluded from seeking habeas corpus relief for that error.
See Fields v. Bagley, 275 F.3d 478, 486 (6th Cir. 2001). By agreeing to the
admission of Mr. Jonesâ preliminary examination testimony, petitioner is
precluded from seeking habeas relief on this claim.
Moreover, petitioner failed to show that the trial court erred in finding Mr.
Jones to be unavailable to testify, so as to allow for the admission of his
preliminary examination testimony. Mr. Jones had originally pleaded guilty to
lesser charges with an agreement to testify against petitioner. Mr. Jones had
testified against him at the preliminary examination. Immediately prior to
petitionerâs trial, the prosecutor moved to withdraw Mr. Jonesâ guilty plea
because Mr. Jones no longer wanted to cooperate with the prosecutor and testify
against petitioner. Mr. Jonesâ attorney had, in fact, contacted the prosecutorâs
office and informed them that Mr. Jones would not testify against petitioner. (ECF
No. 15-18, PageID.622-623). The judge had granted the motion to withdraw Mr.
Jonesâ guilty plea after Mr. Jones informed the judge that he would not cooperate
with the prosecution and testify against petitioner. In light of the fact that Mr.
Jonesâ plea had been withdrawn, the judge granted the prosecutorâs motion to
use Mr. Jonesâ preliminary examination testimony in lieu of his live testimony.
(ECF No. 15-7, PageID.240).
An exception to the confrontation requirement exists where a witness is
unavailable and gave testimony, which was subject to cross-examination, at
previous judicial proceedings against the same defendant. However, this
exception does not apply âunless the prosecutorial authorities have made a
good-faith effort to obtain his presence at trial.â Barber v. Page, 390 U.S. 719,
724-25 (1968). When prosecutors seek to admit a non-testifying witnessâ
preliminary hearing testimony, the Confrontation Clause requires two things: first,
the prosecution must establish that the declarant is âunavailableâ by showing that
prosecutorial authorities have made a good-faith effort to obtain the declarantâs
presence at trial, and, second, to satisfy the âindicia of reliabilityâ requirement, the
prosecution must demonstrate that the defendant had an adequate opportunity to
cross-examine the declarant at the preliminary examination. See Pillette v.
Berghuis, 630 F. Supp. 2d 791, 804 (E.D. Mich. 2009); revâd on other grds, 408
F. Appâx 873 (6th Cir. 2010)(citing McCandless v. Vaughn, 172 F.3d 255, 265
(3rd Cir. 1999)). The lengths to which the prosecution must go to produce a
witness, such that the admission of the witnessâ prior, confronted testimony at the
subsequent trial does not violate the Confrontation Clause, is a question of
reasonableness. Hardy v. Cross, 565 U.S. 65, 70 (2011)(quoting Ohio v.
Roberts, 448 U.S. 56, 74 (1980)). The Supreme Court noted that âwhen a
witness disappears before trial, it is always possible to think of additional steps
that the prosecution might have taken to secure the witnessâ presence, but the
Sixth Amendment does not require the prosecution to exhaust every avenue of
inquiry, no matter how unpromising.â Id., at 71-72. Significantly, âthe deferential
standard of review set out in 28 U.S.C. § 2254(d) does not permit a federal court
to overturn a state courtâs decision on the question of unavailability merely
because the federal court identifies additional steps that might have been taken.â
Id. at 72.
Mr. Jones was unavailable at trial because he had withdrawn his plea deal
just before trial and thus had his own Fifth Amendment right not to testify. This is
a recognized reason for unavailability. See United States v. Jones, 124 F.3d 781,
786 (6th Cir. 1997)(stating that the declarant âwas unavailable as he refused to
testify, invoking his Fifth Amendment right against self-incriminationâ); Mayes v.
Sowders, 621 F.2d 850, 856 (6th Cir. 1980)(stating that â[a] witness is not
available for full and effective cross-examination when he or she refuses to
testify.â).
In addition, Mr. Jonesâ former preliminary examination testimony bore
adequate indicia of reliability because it was made under oath, petitioner and his
counsel were present, and the witness was subject to cross-examination.
California v. Green, 399 U.S. 149, 165-66 (1970); Pillette, 630 F. Supp. 2d at
804; Eastham v. Johnson, 338 F. Supp. 1278, 1280 (E.D. Mich. 1972). The
admission of the preliminary examination testimony at petitionerâs trial did not
violate his Sixth Amendment right to confrontation. See Glenn v. Dallman, 635
F.2d 1183, 1187 (6th Cir. 1980); Havey v. Kropp, 458 F.2d 1054, 1057 (6th Cir.
1972); Pillette, 630 F. Supp. 2d at 804-05.
D. Claim # 4. The ineffective assistance of trial counsel claims.
Petitioner in his fourth claim alleges he was denied the effective assistance
of trial counsel.
To show that he was denied the effective assistance of counsel under
federal constitutional standards, a defendant must satisfy a two prong test. First,
the defendant must demonstrate that, considering all of the circumstances,
counselâs performance was so deficient that the attorney was not functioning as
the âcounselâ guaranteed by the Sixth Amendment. Strickland v. Washington,
466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong
presumption that counselâs behavior lies within the wide range of reasonable
professional assistance. Id. In other words, petitioner must overcome the
presumption that, under the circumstances, the challenged action might be
sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must
show that such performance prejudiced his defense. Id. To demonstrate
prejudice, the defendant must show that âthere is a reasonable probability that,
but for counselâs unprofessional errors, the result of the proceeding would have
been different.â Strickland, 466 U.S. at 694. âStricklandâs test for prejudice is a
demanding one. âThe likelihood of a different result must be substantial, not just
conceivable.ââ Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir. 2011)(quoting
Harrington, 562 U.S. at 112). The Supreme Courtâs holding in Strickland places
the burden on the defendant who raises a claim of ineffective assistance of
counsel, and not the state, to show a reasonable probability that the result of the
proceeding would have been different, but for counselâs allegedly deficient
performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009).
Petitioner first alleges that trial counsel was ineffective for failing to bring
Fourth Amendment challenges based on the three month delay in arraignment
and the alleged illegal search of his cellphone.
To prove that counselâs failure to litigate a Fourth Amendment claim
competently as the principal claim of ineffectiveness, a defendant must also
prove that his Fourth Amendment claim is meritorious and that there is a
reasonable probability that the verdict would have been different absent the
excludable evidence, in order to demonstrate actual prejudice. Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986); see also Mack v. Jones, 540 F. Supp. 2d
840, 848 (E.D. Mich. 2008).
Petitioner claims that counsel should have moved to dismiss the charges
based on a three month delay between his arrest and his actual arraignment on
the warrant. Petitioner alleges he was arrested on November 6, 2013, but not
arraigned until February 10, 2014. Petitionerâs claim is based on the United
States Supreme Courtâs decision in County of Riverside v. McLaughlin, 500 U.S.
44 (1991). Riverside was a civil rights case brought under 42 U.S.C. § 1983.
The Supreme Court held that the federal constitution requires that a defendant
be given a reasonably prompt probable cause determination, such as
arraignment, following his arrest, and that a delay in arraignment greater than 48
hours after arrest is presumptively unreasonable. See id. at 55-58.
Petitioner raised this claim in his post-conviction motion. The judge
rejected the claim, finding that there was no undue delay in arraignment because
petitioner was initially arrested in 2013 on a bench warrant in an earlier criminal
case and not on these charges. (ECF No. 15-17, PageID.597). The judgeâs
findings are supported by the arrest warrant and complaint, which was signed on
February 10, 2014, the date of petitionerâs arraignment. (ECF No. 15-22,
PageID.970-971). Petitioner failed to show that he was denied a prompt
arraignment on these charges.
Assuming there were any delays in his arraignment, petitioner failed to
show that counsel was ineffective in failing to file a motion to suppress or a
motion to dismiss based on the allegedly untimely arraignment. Petitioner cannot
show a reasonable probability that a motion to suppress any evidence or to
dismiss the case on this basis would have been successful. Because
McLaughlin was a civil rights action, it did not consider the effect of pre-
arraignment delay on the admissibility of evidence in a criminal case. See e.g.
Davis v. Jones, 306 F. Appâx 232, 236 (6th Cir. 2009). Nor does the holding in
McLaughlin support petitionerâs argument that any pre-arraignment delay would
have resulted in the dismissal of the charges. Meador v. Bauman, No. 16-2557,
2017 WL 5201907, at *2 (6th Cir. June 5, 2017)(âBut McLaughlin was a civil
rights action, not a criminal case, and it does not support [petitionerâs] argument
in his COA [certificate of appealability] application that the delay should have
resulted in dismissal of the charges against himâ). The United States Supreme
Court, in fact, explicitly declined to fashion an appropriate remedy for a
McLaughlin violation. See Powell v. Nevada, 511 U.S. 79, 84 (1994). The
Michigan courts likewise held that suppression of evidence is not per se required
for a McLaughlin violation. See People v. Manning, 243 Mich. App. 615, 636-44;
624 N.W.2d 746 (2000). In light of these cases, petitioner failed to show that the
charges would have been dismissed or the evidence suppressed had counsel
raised a challenge to the alleged pre-arraignment delay.
Petitioner also alleges that trial counsel should have moved to suppress
evidence taken from his cell phone because the search warrant only allowed the
police to obtain all data assigned to a 695 cellphone number but the police
obtained information from a second cellphone number, 972, that was not
included in the search warrant. Petitioner claims that the 972 cellphone number
was only activated after the 695 number was cancelled.
Petitioner failed to provide a copy of the search warrant with his petition,
brief in support of the petition, or his reply brief. (ECF Nos. 1, 2, 16). Nor did
petitioner provide a copy of the warrant with his motion for relief from judgment
and two supplemental motions for relief from judgment. (ECF Nos. 15-14, 15-15,
15-16). Without a copy of the search warrant, this Court is unable to determine
the scope of the search warrant and what cellphones, if any, were authorized to
be searched. Conclusory allegations of ineffective assistance of counsel, without
any evidentiary support, do not provide a basis for habeas relief. See Workman
v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). Without any evidence establishing that
the search of petitionerâs cellphone exceeded the scope of the search warrant,
petitioner is not entitled to relief on this claim.
Petitioner next claims that trial counsel was ineffective for stipulating to the
admission of Mr. Jonesâ preliminary examination testimony. The judge in this
case had previously ruled that the preliminary examination testimony was
admissible because Mr. Jones was unavailable to testify at trial after his guilty
plea was revoked. This Court determined that the judge reasonably determined
that Mr. Jones was unavailable to testify at trial, most likely because he would
have invoked his Fifth Amendment right not to testify. Petitioner does not
suggest any arguments that his counsel could have made instead of stipulating
to Mr. Jonesâ unavailability that would have compelled him to appear in court and
testify at petitionerâs trial. Petitioner cannot show that he was prejudiced by
counselâs stipulation. Bell v. Woods, No. 2:10-CV-13467, 2014 WL 11206412, at
*24 (E.D. Mich. Apr. 15, 2014), report and recommendation adopted sub nom.
Bell v. Bergh, No. 10-13467, 2016 WL 1223349 (E.D. Mich. Mar. 29, 2016).
Petitioner next alleges that his counsel was ineffective for failing to
interview the prosecutionâs expert, Dr. Jeffrey Jentzen, prior to trial and did not
secure a defense expert to contradict Dr. Jentzen, specifically regarding the time
of death in an effort to comport with petitionerâs alibi. (ECF No. 2, PageID.49â50).
Defense counsel cross-examined Dr. Jentzen on the issue involving the
time of death. It was, in fact, counselâs first question on cross-examination. The
line of questioning persisted for several transcript pages. (ECF No. 15-9,
PageID.345-46). Defense counsel also discussed the issue of the time of death
in closing argument, contending that Franklin could not have shot the victim
because he was constantly sending and receiving text messages at that time.
(ECF No. 15-11, PageID.446).
Petitioner has not established that his counsel was ineffective for failing to
conduct a pre-trial interview of Dr. Jentzen, in the absence of any evidence that
Dr. Jentzen was willing to talk with defense counsel other than from the witness
stand or that counselâs cross-examination of this witness was somehow
inadequate. See Daniel v. Palmer, 719 F. Supp. 2d 817, 829 (E.D. Mich. 2010),
revâd on other grds sub nom. Daniel v. Curtin, 499 F. Appâx 400 (6th Cir. 2012).
Petitioner also claims that trial counsel should have called an expert
witness to challenge Dr. Jentzenâs findings as to the time of death. A habeas
petitionerâs claim that trial counsel was ineffective for failing to call an expert
witness cannot be based on speculation. See Keith v. Mitchell, 455 F.3d 662,
672 (6th Cir. 2006). Petitioner has offered no evidence to this Court that there is
an expert who would have impeached Dr. Jentzenâs testimony concerning the
likely time of death.
Moreover, although trial counsel did not present an expert to challenge Dr.
Jentzenâs opinion as to the time of the victimâs death, trial counsel extensively
cross-examined Dr. Jentzen about his findings and did get him to make several
admissions that there was a wide range of time in which the murder took place.
Counsel was able to get Dr. Jentzen to admit that a ten degree difference in
room temperature could have affected when rigor mortis set in the victimâs body.
Rigor mortis begins around twelve hours after death and usually goes on for
twenty four to thirty six hours. Doctor Jentzen noted that the time of death could
also be determined by a murder victimâs body temperature, although he further
admitted that it was not âan exact science.â Dr. Jentzen indicated that the time of
death could also be determined by livor mortis, but that there was a range of time
with which this could take place.
The Supreme Court has noted that: â[I]n many instances cross-
examination will be sufficient to expose defects in an expertâs presentation.â
Harrington v. Richter, 562 U.S. at 111. Defense counselâs decision to cross-
examine Dr. Jentzen to challenge his findings, instead of calling an expert
witness for the defense to challenge his testimony, was a reasonable trial
strategy that defeats petitionerâs ineffective assistance of trial counsel claim. See
Tinsley v. Million, 399 F.3d 796, 806 (6th Cir. 2005); see also Jackson v.
McQuiggin, 553 F. Appâx 575, 580-82 (6th Cir. 2014); Stevens v. U.S., 298 F.
Supp. 2d 657, 660-61 (E.D. Mich. 2004).
Petitioner next contends that trial counsel was ineffective for failing to
object to the admission of a photograph of him holding a gun in 2008, which the
Michigan Court of Appeals found inadmissible on direct appeal. Franklin, 2016
WL 1391305, at *4. The Michigan Court of Appeals, however, found the
admission of the picture harmless in light of the additional evidence of guilt. Id. at
*5. âThe prejudice prong of the ineffective assistance analysis subsumes
âŚharmless-error review.â Hall v. Vasbinder, 563 F.3d 222, 236 (6th Cir. 2009).
Because the Michigan Court of Appeals determined that admission of this
evidence was harmless error, petitioner cannot satisfy Stricklandâs prejudice
requirement. See e.g. Bell v. Hurley, 97 F. Appâx 11, 17 (6th Cir. 2004).
Lastly, petitioner contends that his counsel should have rebutted the
prosecutionâs theory that the fatal shot to the victim came from a .40 caliber
bullet, both through more effective cross-examination and by calling a defense
ballistics expert. (ECF No. 2, PageID.53-54).
This claim may be unexhausted, however, as petitioner did not raise it as
part of his ineffective-assistance of counsel claim in his motion for relief from
judgment. Petitioner cannot exhaust this claim because he already filed one
motion for relief from judgment and the state court rules prohibits a second
motion absent one of two narrow exceptions, Mich. Ct. R. 6.502(G).
In any event, petitionerâs ballistics claim is meritless. As the Michigan Court
of Appeals found based on the trial record, there was at least a strong inference,
if not direct evidence, of the gun and bullet type petitioner used to shoot the
victim:
Jones testified that defendant carried a black, semiautomatic
handgun on the night of the offense and that defendant used this gun
to shoot DeWolf. The text message exchange evidenced that before
the night of the current offense, defendant intended to (and apparently
did) purchase a gun matching Jonesâs description of the murder
weapon. The text message exchange noted that the weapon
contained hollow point bullets, and investigating officers found a
hollow point bullet jacket fragment at the murder scene. Expert
testimony established that the weapon in the text message
photograph was of a type that could have fired the fatal bullet.
Franklin, 2016 WL 1391305, at *4.
The gun petitioner purchased was a .40 caliber semiautomatic handgun.
(ECF No. 15-11, PageID.406). The ballistics evidence showed that the bullet
that killed the victim was a .38 caliber or greater depending on the size of the
jacket that held the recovered bullet in this case. (ECF No. 15-10, PageID.396).
The evidence in this case supported the argument that petitioner used the .40
caliber handgun he had purchased to kill the victim in this case. Petitioner has
not shown that he was prejudiced by counselâs failure to hire a ballistics expert
and has failed to establish that counsel was ineffective. Arevalo v. White, No. 16-
5948, 2017 WL 6760653, at *2 (6th Cir. July 18, 2017).
Petitioner is not entitled to relief on his ineffective assistance of counsel
claims.
E. Claims # 5 and # 7. The evidentiary error claims.
Petitioner in his fifth claim alleges that his due process rights were violated
by the admission of photographs of the autopsy and crime scene that were more
prejudicial than probative. In his seventh claim, petitioner alleges that the
prosecutor violated M.R.E. 404(b) by admitting other acts evidence.
It is ânot the province of a federal habeas court to reexamine state-court
determinations on state-court questions.â Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). A federal court is limited in federal habeas review to deciding whether a
state court conviction violates the Constitution, laws, or treaties of the United
States. Id. Thus, errors in the application of state law, especially rulings
regarding the admissibility of evidence, are usually not questioned by a federal
habeas court. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
Petitionerâs claim that the trial court admitted photographs of the murder
victim fails to state a claim upon which habeas relief can be granted. See e.g.
Franklin v. Bradshaw, 695 F.3d 439, 456-57 (6th Cir. 2012)(state courtâs
determination, that petitionerâs 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 graphic or gruesome photographs of a murder
victim does not entitle a petitioner to habeas relief where there is some legitimate
evidentiary purpose for the photographsâ admission. See e.g., Biros v. Bagley,
422 F.3d 379, 391 (6th Cir. 2005)(upholding the admission of photographs
depicting a victimâs severed head, severed breast, and severed body parts
placed near the victimâs torso; the photos were highly probative of the
prosecutorâs 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 victimâs death);
Cooey v. Coyle, 289 F.3d 882, 893 (6th Cir. 2002)(observing that âalthough the
photographs were gruesome, they were highly probativeâ).
Petitionerâs claim that this evidence should have been excluded under
M.R.E. 403 for being more prejudicial than probative does not entitle petitioner to
habeas relief. The Sixth Circuit observed that â[t]he Supreme Court has never
held (except perhaps within the capital sentencing context) that a state trial
courtâs admission of relevant evidence, no matter how prejudicial, amounted to a
violation of due process.â Blackmon v. Booker, 696 F.3d 536, 551 (6th Cir. 2012)
(emphasis original). Petitioner is not entitled to relief on his fifth claim.
Petitionerâs claim that the state court violated M.R.E. 404(b) or any other
provision of state law by admitting improper character evidence or evidence of
prior bad acts is non-cognizable on habeas review. See Bey v. Bagley, 500 F.3d
514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme Courtâs habeas
powers did not permit Court to reverse state court conviction based on their belief
that the state trial judge erred in ruling that prior injury evidence was admissible
as bad acts evidence under California law); Dowling v. U.S., 493 U.S. 342, 352-
53 (1990)(admission at defendantâs bank robbery trial of âsimilar actsâ evidence
that he had subsequently been involved in a house burglary for which he had
been acquitted did not violate due process). The admission of this âprior bad
actsâ or âother actsâ evidence against petitioner at his state trial does not entitle
him to habeas relief, because there is no clearly established Supreme Court law
which holds that a state violates a habeas petitionerâs due process rights by
admitting propensity evidence in the form of âprior bad actsâ evidence. See Bugh
v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Petitioner is not entitled to relief on
his seventh claim.
F. Claim # 8. The insufficiency of evidence claim.
Petitioner contends that there was insufficient evidence of malice to
support his felony murder conviction. Petitioner raised this on his appeal of right.
The Michigan Court of Appeals rejected the claim as follows:
Viewing the evidence in the light most favorable to the prosecution,
the jury could conclude beyond a reasonable doubt that defendant
acted with malice. Defendant set out on his robbery spree armed with
a loaded handgun. He entered a dark bedroom in the middle of the
night knowing that someone was inside and that any robbery would
likely involve an element of force. When confronted by the sleepy and
surprised resident, defendant decided to raise his loaded handgun
overhead and strike the victim with a downward swing. The jury could
certainly view these events as constituting âwanton and wilful
disregard of the likelihood that the natural tendency of such behavior
is to cause death or great bodily harm.â
People v. Franklin, 2016 WL 1391305, at *2.
It is beyond question that âthe Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged.â In Re Winship, 397
U.S. 358, 364 (1970). But the crucial question on review of the sufficiency of the
evidence to support a criminal conviction is, âwhether the record evidence could
reasonably support a finding of guilt beyond a reasonable doubt.â Jackson v.
Virginia, 443 U.S. 307, 318 (1979). A court need not âask itself whether it
believes that the evidence at the trial established guilt beyond a reasonable
doubt.â Instead, the relevant inquiry is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
the requisite elements of the crime beyond a reasonable doubt. Id. at 318-19
(internal citation and footnote omitted)(emphasis in the original).
When considering a challenge to the sufficiency of the evidence to convict,
the reviewing court gives circumstantial evidence the same weight as direct
evidence. See United States v. Farley, 2 F.3d 645, 650 (6th Cir. 1993).
âCircumstantial evidence alone is sufficient to sustain a conviction and such
evidence need not remove every reasonable hypothesis except that of guilt.â
United States v. Kelley, 461 F.3d 817, 825 (6th Cir. 2006)(internal quotation
omitted); see also Saxton v. Sheets, 547 F.3d 597, 606 (6th Cir. 2008)(âA
conviction may be sustained based on nothing more than circumstantial
evidence.â). Moreover, â[c]ircumstantial evidence is not only sufficient, but may
also be more certain, satisfying and persuasive than direct evidence.â Desert
Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)(quoting Rogers v. Missouri Pacific
R. Co., 352 U.S. 500, 508, n.17 (1957)); see also Holland v. United States, 348
U.S. 121, 140 (1954)(circumstantial evidence is âintrinsically no different from
testimonial evidence,â and â[i]f the jury is convinced beyond a reasonable doubt,
we can require no moreâ); Harrington, 562 U.S. at 113 (âsufficient conventional
circumstantial evidenceâ supported the verdict).
A federal habeas court cannot overturn a state court decision that rejects a
sufficiency of the evidence claim simply because the federal court disagrees with
the state courtâs resolution of that claim. Instead, a federal court may grant
habeas relief only if the state court decision was an objectively unreasonable
application of the Jackson standard. See Cavazos v. Smith, 565 U.S. 1, 2 (2011).
âBecause rational people can sometimes disagree, the inevitable consequence of
this settled law is that judges will sometimes encounter convictions that they
believe to be mistaken, but that they must nonetheless uphold.â Id. For a federal
habeas court reviewing a state court conviction, âthe only question under
Jackson is whether that finding was so insupportable as to fall below the
threshold of bare rationality.â Coleman v. Johnson, 566 U.S. 650, 656 (2012). A
state courtâs determination that the evidence does not fall below that threshold is
entitled to âconsiderable deference under [the] AEDPA.â Id.
Under Michigan law, the elements of first-degree felony murder are:
(1) the killing of a human being;
(2) with an intent to kill, to do great bodily harm, or to create a high
risk of death or great bodily harm with knowledge that death or great
bodily harm is the probable result (i.e., malice);
(3) while committing, attempting to commit, or assisting in the
commission of one of the felonies enumerated in the felony murder
statute.
Matthews v. v. Abramajtys, 319 F.3d 780, 789 (6th Cir. 2003)(citing to People v.
Carines, 460 Mich. 750, 759; 597 N.W.2d 130 (1999)).
The Michigan Supreme Court indicated that: â[A] jury can properly infer
malice from evidence that a defendant set in motion a force likely to cause death
or great bodily harm.â People v. Aaron, 409 Mich. 672, 729; 299 N.W.2d 304
(1980); see also Carines, 460 Mich. at 759 (internal citation omitted). âMalice
may also be inferred from the use of a deadly weapon.â Carines, 460 Mich. at
759.
The elements of armed robbery under Michigan law are: (1) an assault,
and (2) a felonious taking of property from the victimâs presence or person, (3)
while the defendant is armed with a weapon. See OâGuin v. Foltz, 715 F.2d 397,
400 (6th Cir. 1983).
Mich. Comp. Laws § 750.110a(2) states that:
A person who breaks and enters a dwelling with intent to commit a
felony or a larceny in the dwelling or a person who enters a dwelling
without permission with intent to commit a felony or a larceny in the
dwelling is guilty of home invasion in the first degree if at any time
while the person is entering, present in, or exiting the dwelling either
of the following circumstances exists:
(a) The person is armed with a dangerous weapon.
(b) Another person is lawfully present in the dwelling.
Michiganâs first-degree home invasion statute includes all of the elements
of burglary of a dwelling, but also requires that the defendant be armed with a
dangerous weapon and/or that the dwelling be occupied. See Johnson v.
Warren, 344 F. Supp. 2d 1081, 1093 (E.D. Mich. 2004)(citing United States v.
Garcia-Serrano, 107 F. Appâx 495, 496-97 (6th Cir. 2004)).
The Michigan Court of Appealsâ rejection of petitionerâs sufficiency of
evidence claim was reasonable. Petitionerâs act of bringing a loaded firearm to
an armed robbery and/or home invasion and using it while attempting to take
property from the victim was sufficient evidence for a rational trier of fact to
conclude that petitioner acted with the requisite malice to support his first-degree
felony murder conviction.
A defendantâs participation in an armed robbery or another crime, while
either he or his co-defendants are armed with a loaded firearm, manifests a
wanton and reckless disregard that death or serious bodily injury could occur, to
support finding that the defendant acted with the malice aforethought element of
first-degree felony-murder. See Hill v. Hofbauer, 337 F.3d 706, 719-20 (6th Cir.
2003)(intent for felony murder âcan be inferred from the aider and abettorâs
knowledge that his cohort possesses a weapon.â). See also People v. Carines,
460 Mich. at 759-60; Harris v. Stovall, 22 F. Supp. 2d 659, 667 (E.D. Mich.
1998); People v. Turner, 213 Mich. App. 558, 572-73; 540 N.W.2d 728
(1995);overruled in part on other grounds People v. Mass, 464 Mich. 615; 628
N.W.2d 540 (2001); People v. Hart, 161 Mich. App. 630, 635; 411 N.W.2d 803
(1987); Meade v. Lavigne, 265 F. Supp. 2d 849, 858-59 (E.D. Mich. 2003); Cf.
Redmond v. Jackson, 295 F. Supp. 2d 767, 774 (E.D. Mich. 2003)(petitioner not
entitled to tolling of the AEDPAâs statute of limitations on a claim that he was
actually innocent of felony-murder, finding that petitionerâs act of providing a
firearm to be used in an armed robbery demonstrated a wanton and willful
disregard of the fact that a person could be killed or suffer great bodily harm
during the course of the robbery).
The mere fact that the gun discharged after the victim reached for it in an
attempt to disarm petitioner does not negate the malice. When petitioner
committed the armed robbery, âhe took the risk that [the victim] might exercise
[his] natural right of self-preservation.â People v. Anderson, 147 Mich. App. 789,
793; 383 N.W.2d 186 (1985). When viewed in a light most favorable to the
prosecution, the evidence established that petitioner acted with the requisite
malice aforethought so as to support his conviction for first-degree felony murder.
Petitioner is not entitled to habeas relief on his eighth claim.
G. Claim # 9. The prosecutorial misconduct claim.
Petitioner next contends that the prosecutor committed misconduct by
vouching for the credibility of Mr. Jones.
A prosecutorâs improper comments will be held to violate a criminal
defendantâs constitutional rights only if they ââso infected the trial with unfairness
as to make the resulting conviction a denial of due process.ââ Darden v.
Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974)). Prosecutorial misconduct will thus form the basis for
habeas relief only if the conduct was so egregious as to render the entire trial
fundamentally unfair based on the totality of the circumstances. Donnelly v.
DeChristoforo, 416 U.S. at 643-45. To obtain habeas relief on a prosecutorial
misconduct claim, a habeas petitioner must show that the state courtâs rejection
of his prosecutorial misconduct 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 Parker v. Matthews, 567 U.S. 37, 48
(2012)(quoting Harrington, 562 U.S. at 103).
A prosecutor may not express a personal opinion concerning the guilt of a
defendant or the credibility of trial witnesses, because such personal assurances
of guilt or vouching for the veracity of witnesses by the prosecutor âexceeds the
legitimate advocatesâ role by improperly inviting the jurors to convict the
defendant on a basis other than a neutral independent assessment of the record
proof.â Caldwell v. Russell, 181 F.3d 731, 737 (6th Cir.1999)(internal citations
omitted). However, a prosecutor is free to argue that the jury should arrive at a
particular conclusion based upon the record evidence. Id. The test for improper
vouching for a witness is whether the jury could reasonably believe that the
prosecutor was indicating a personal belief in the witnessâ credibility. United
States v. Causey, 834 F.2d 1277, 1283 (6th Cir. 1987). â[G]enerally, improper
vouching involves either blunt comments, or comments that imply that the
prosecutor has special knowledge of facts not in front of the jury or of the
credibility and truthfulness of witnesses and their testimony.â See United States
v. Francis, 170 F.3d 546, 550 (6th Cir. 1999)(internal citations omitted). It is
worth noting that the Sixth Circuit has never granted habeas relief for improper
vouching. Byrd v. Collins, 209 F.3d 486, 537 and n. 43 (6th Cir. 2000). Indeed,
â[T]he Supreme Court has never specifically held that a prosecutorâs vouching for
the credibility of a witness resulted in a denial of due process.â Wilson v. Bell,
368 F. Appâx 627, 632, n.3 (6th Cir. 2010). Even on direct appeal from a federal
conviction, to constitute reversible error, a prosecutorâs alleged misconduct of
arguing his or her personal belief, in a witnessâ credibility or in a defendantâs guilt,
must be flagrant and not isolated. See United States v. Humphrey, 287 F.3d 422,
433 (6th Cir. 2002).
In this case, the prosecutor did nothing more than argue for Jonesâ
credibility based on the evidence at trial. Petitioner challenges portions of the
closing and rebuttal arguments made by the prosecutor, however, the
prosecutorâs comments were made in the context of the other evidence. (ECF
No. 15-11, PageID.439-443, 446-47). The prosecutor put Jonesâ testimony in
context, e.g., âThat is physical evidence that is independent of Shaquille Jones
that corroborates Shaquille Jonesâ testimony.â (Id.. PageID.439).
The prosecutor did not argue that he had any special knowledge about Mr.
Jones that had not been presented to the jury. There was no improper vouching
because the prosecutor did not improperly âassert or imply that he drew from
anything but [Mr. Jonesâ] trial testimony to argue that [he] was credible.â
Cockream v. Jones, 382 F. Appâx 479, 485 (6th Cir. 2010). Petitioner is not
entitled to relief on his ninth claim.
H. Claim # 6. The ineffective assistance of appellate counsel claim.
Petitioner lastly contends that he was denied the effective assistance of
appellate counsel for failing to raise his first through fifth and ninth claims on his
appeal of right.
Petitioner was represented by the State Appellate Defender Office, who
filed a brief raising what make up petitionerâs seventh, and eighth claims, as well
as another claim not included in the current petition. (ECF No. 15-19,
PageID.657-696).
The Sixth Amendment guarantees a defendant the right to effective
assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387,
396-397 (1985). However, court appointed counsel does not have a
constitutional duty to raise every non-frivolous issue requested by a defendant.
Jones v. Barnes, 463 U.S. 745, 751 (1983). A habeas court must defer twice:
first to appellate counselâs decision not to raise an issue and secondly, to the
state courtâs determination that appellate counsel was not ineffective. Woods v.
Etherton, 136 S. Ct. 1149, 1153 (2016)(per curiam)(âGiven AEDPA, both
Ethertonâs appellate counsel and the state habeas court were to be afforded the
benefit of the doubt.â).
Petitionerâs first through fifth and ninth claims are meritless. â[A]ppellate
counsel cannot be found to be ineffective for âfailure to raise an issue that lacks
merit.ââ Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010)(quoting Greer v.
Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). Petitioner is not entitled to relief on
his sixth claim.
IV. Conclusion
The Court denies the petition for a writ of habeas corpus.
28 U.S.C. § 2253(c)(1)(A) and F.R.A.P. 22(b) state that an appeal from the
district courtâs denial of a writ of habeas corpus may not be taken unless a
certificate of appealability (COA) is issued either by a circuit court or district court
judge. If an appeal is taken by an applicant for a writ of habeas corpus, the
district court judge shall either issue a certificate of appealability or state the
reasons why a certificate of appealability shall not issue. F.R.A.P. 22(b).
In order to obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
To demonstrate this denial, the applicant is required to show that reasonable
jurists could debate whether, or agree that, the petition should have been
resolved in a different manner, or that the issues presented were adequate to
deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,
483-84 (2000). When a district court rejects a habeas petitionerâs constitutional
claims on the merits, the petitioner must demonstrate that reasonable jurists
would find the district courtâs assessment of the constitutional claims to be
debatable or wrong. Id.
In order to obtain a certificate of appealability, a habeas petitioner need not
show that his appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
The Supreme Courtâs holding in Slack v. McDaniel âwould mean very little if
appellate review were denied because the prisoner did not convince a judge, or,
for that matter, three judges, that he would prevail. It is consistent with § 2253
that a COA will issue in some instances where there is no certainty of ultimate
relief.â Id. A habeas petitioner is not required to prove, before obtaining a COA,
that some jurists would grant the petition for habeas corpus. Id. at 338. âIndeed,
a claim can be debatable even though every jurist of reason might agree, after
the COA has been granted and the case has received full consideration, that
petitioner will not prevailâ. Id.
As this Court has previously indicated: â[T]he Courtâs ego tells it that all
reasonable jurists would agree with its resolution of the issues raised by
petitioner. The Courtâs experience, however, is to the contrary. Thus, the
Courtâs belief in the correctness of its decision should not insulate that decision
from further review.â Hargrave v. McKee, 2005 WL 1028183, *1 (E.D. Mich. April
25, 2005)(citing Taylor v. Howes, 26 F. Appâx 397, 399 (6th Cir. 2001)).
â[B]ecause the Court is not infallible and does not believe that its decision
should be insulated from further review,â Id., a certificate of appealability shall
issue in this case. In addition, any doubt regarding whether to grant a COA from
the denial of a petition for federal habeas relief is resolved in favor of the habeas
petitioner, and the severity of the penalty may be considered in making that
determination. See Newton v. Dretke, 371 F.3d 250, 253 (5th Cir. 2004). Any
doubts regarding the issuance of a COA in this case should be resolved in
petitionerâs favor, in light of the nonparolable life sentence that he is serving.
A court may grant in forma pauperis (IFP) status if it concludes that an
appeal is being taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App.24
(a); Foster v. Ludwick, 208 F. Supp. 2d 750, 765 (E.D. Mich. 2002). Good faith
requires a showing that the issues raised are not frivolous; it does not require a
showing of probable success on the merits. Id. Because this Court granted a
certificate of appealability, petitionerâs appeal is being undertaken in good faith;
petitioner is thus GRANTED leave to appeal in forma pauperis. See Brown v.
United States, 187 F. Supp. 2d 887, 893 (E.D. Mich. 2002).
V. ORDER
Based upon the foregoing, IT IS ORDERED that:
(1) the Petition for a Writ of Habeas Corpus is DENIED WITH
PREJUDICE.
(2) Petitioner is GRANTED a certificate of appealability and leave to
appeal in forma pauperis.
Dated: November 29, 2021
_s/Arthur J. Tarnow__________________
ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE Case Information
- Court
- E.D. Mich.
- Decision Date
- November 29, 2021
- Status
- Precedential