Jackson v. Trierweiler

                UNITED STATES DISTRICT COURT                            
                 EASTERN DISTRICT OF MICHIGAN                           
                      SOUTHERN DIVISION                                 

GARRY DONNELL JACKSON,                                                    

   Petitioner,              Civil No. 2:18-CV-11265                     
                            HONORABLE NANCY G. EDMUNDS                  
v.                                                                        

TONY TRIERWEILER,                                                         

   Respondent.                                                          
____________________________________/                                     

OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT OF HABEAS          
 CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY           

   Gary Donnell Jackson, (“Petitioner”), on parole supervision with the Michigan 
Department of Corrections, filed a petition for a writ of habeas corpus pursuant to 28 
U.S.C. § 2254.  In his application, filed by attorney Paul J. Stablein, petitioner challenges 
his convictions for three counts of second-degree criminal sexual conduct, M.C.L.A. 
750.520c(1)(k). For the reasons that follow, the petition for a writ of habeas corpus is 
DENIED.                                                                   
                        I.  Background                                  

   Petitioner was convicted following a jury trial in the Oakland County Circuit Court.  
   This Court recites verbatim the relevant facts relied upon by the Michigan Court of 
Appeals,  which  are  presumed  correct  on  habeas  review  pursuant  to  28  U.S.C.  § 
2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):       
   Defendant’s convictions arise from his unlawful sexual contact with a female 
   inmate at the Oakland County jail on August 29, 2013, when he was an 
   Oakland County sheriff’s deputy.                                     

   In July 2013, the victim became a trustee at the jail, which meant that she 
   helped the deputies assigned to her pod or unit. The victim’s trustee position 
enabled her to have more contact with defendant, who occasionally worked 
in her pod. Other inmates characterized the relationship between defendant 
and the victim as overly friendly or flirtatious, and claimed that the victim 
received favorable treatment from defendant. The victim testified that in 
early August 2013, defendant asked her to take a bucket to the laundry 
room. While she was in the laundry room, defendant walked into the room 
and shut the door. He told her “that he wanted [her] so bad and he liked 
[her] so much and put his arm around” her and began kissing her. The victim 
testified that she was nervous, but was “okay” with defendant kissing her at 
that time and she kissed him back. However, she felt uncomfortable and 
pushed defendant away because she was nervous about getting in trouble. 
Defendant told her not to worry because he was “a cop.” Defendant left the 
room and told the victim to wait a minute before returning to her cell. 

On August 29, 2013, defendant was locking down the inmates, but unlocked 
the victim’s cell and asked her to take some property bags up to the property 
closet.  While  the  victim  was  inside  the  closet  hanging  up  the  bags, 
defendant walked into the closet and shut the door. According to the victim, 
defendant put his hands around her waist, told her that he liked her and not 
to be nervous, and reassured her that she was not going to get into any 
trouble. Defendant then kissed her neck and her lips, put both of his hands 
down the inside of her pants, and placed his finger inside her vagina. The 
victim told defendant that she was nervous and not comfortable with this, 
but  defendant  reassured  her  that  she  would  not  get  into  any  trouble. 
Defendant then opened his pants and asked the victim to “suck his penis.” 
He put his hands on the back of her head and forced her head down.   
Defendant placed his penis inside her mouth. After a minute or two, the 
victim stopped and said she could not do it any longer because she thought 
she  heard  someone  and  feared  they  were  going  to  get  into  trouble. 
Defendant told her not to say anything to anyone. Defendant left the closet 
first and instructed the victim to come out after a couple of minutes. 

Four days later, another inmate reported the matter to another deputy after 
she noticed that the victim was quiet and not acting like herself. When 
someone with the sheriff’s office came to speak to the victim, she broke 
down and told him what happened. Other inmates reported seeing both the 
victim and defendant enter the property closet at separate times and remain 
inside, with the door closed, for up to 15 minutes. Many testified that when 
the victim left the closet, her hair was different and her clothing looked 
disheveled.                                                          

Before trial, the trial court granted the prosecutor’s motion to introduce 
other-acts evidence pursuant to MRE 404(b)(1). SH testified that when she 
was an inmate at the jail, defendant did things that were inappropriate. For 
example, defendant would look down into the first-floor showers and watch 
   the female inmates shower, whereas most other deputies usually looked 
   straight ahead.                                                      

   KC testified that when she was an inmate at the jail before the victim arrived 
   there, defendant looked at her differently than did other deputies. One night, 
   defendant declined to take any “kites” from other inmates, but agreed to 
   take one from KC and told her, “I would do anything for you you’re sexiest 
   f* *k.” According to KC, defendant looked at her as if he was “undressing” 
   her “with his eyes.”                                                 

   LR was in the Oakland County Jail from May 2012 to July 2012. During that 
   time, defendant talked to her, complimented her, and gave her special 
   privileges; defendant was very flirtatious toward her and she flirted back. 
   Defendant made comments about her body, like telling her she was “sexy,” 
   and would wink at her. LR was aware that defendant would look at her when 
   she  showered.  After  LR  was  released  from  jail,  she  and  defendant 
   exchanged telephone numbers, and defendant went to her house a few   
   times. Although their physical contact was limited to only kissing, they sent 
   sexually explicit photos of themselves to each other.                

   The  victim  died  in  August  2014,  approximately  one  month  before 
   defendant’s scheduled trial. The trial court granted the prosecutor’s motion 
   to admit the victim’s preliminary examination testimony at trial. The defense 
   theory at trial was that the victim, a drug addict, fabricated the allegations, 
   possibly for financial motives. Defendant’s first trial in September 2014 
   ended in a mistrial after the jury was unable to reach a verdict. Defendant 
   was tried a second time in January 2015 and the jury convicted him as 
   charged.                                                             

People v. Jackson, No. 326341, 2016 WL 4375655, at *1–2 (Mich. Ct. App. Aug. 
16, 2016).                                                                
   Petitioner’s conviction was affirmed. Id., lv. den. 500 Mich. 935, 889 N.W.2d 266 
(2017).                                                                   

   Petitioner filed a petition for a writ of habeas corpus, which was held in abeyance 
so that petitioner could exhaust an additional claim with the state courts. Jackson v. 
Trierweiler, No. 2:18-CV-11265, 2019 WL 125993 (E.D. Mich. Jan. 8, 2019). 
   Petitioner also filed a post-conviction motion for relief from judgment with the trial 
court, which was denied. People v. Jackson, No. 13-248193-FC (Oakland County Circuit 
Court, Aug. 29, 2019).  The Michigan appellate courts denied petitioner leave to appeal. 
People v. Jackson, No. 350702 (Mich. Ct. App. Dec. 30, 2019); lv. den. 505 Mich. 1044, 
941 N.W.2d 659 (2020).                                                    
   The Court reopened the case to the Court’s docket and permitted petitioner to 
amend his petition.  In his amended petition, petitioner seeks habeas relief on the 

following grounds: (1) petitioner was denied a fair trial by the admission of “other acts” 
evidence that had no proper purpose under M.R.E. 404(b) and was more prejudicial than 
probative, (2) the complainant’s testimony at the preliminary examination was erroneously 
admitted  at  trial  in  violation  of  the  Michigan  Rules  of  Evidence  and  petitioner’s 
constitutional  right  to  confront  witnesses,  and  (3)  trial  and  appellate  counsel  were 
ineffective for failing to challenge the admission of the sexually explicit photographs either 
at trial or on petitioner’s appeal of right and the judge erred in invoking M.C.R. 6.508(D)(2) 
to deny petitioner’s claims on state post-conviction review.              
                     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 claim–                                

        (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 “contrary to” 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 “unreasonable application” occurs when “a state court decision 

unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s case.” 
Id. at 409.  A federal habeas court may not “issue the writ simply because that court 
concludes in its independent judgment that the relevant state-court decision applied 
clearly established federal law erroneously or incorrectly.” Id. at 410-11.  “[A] state 
court’s determination that a claim lacks merit precludes federal habeas relief so long as 
‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 
Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 
652, 664 (2004)).                                                         
                        III.  Discussion                                

   A. Claim # 1. The other acts evidence claim.                         
   Petitioner first claims he was denied a fair trial by the admission of other acts 
evidence which was not admitted for a proper purpose, but was instead admitted to show 
that he had a propensity to commit sexual assaults or to simply show that he was a bad 
man.  Petitioner also claims that the evidence was irrelevant and more prejudicial than 
probative.                                                                
   It  is  “not  the  province  of  a  federal  habeas  court  to  reexamine  state-court 
determinations on state-court questions.” 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); see also Stephenson v. Renico, 280 F. Supp. 2d 661, 666 (E.D. Mich. 
2003).                                                                    

Petitioner’s claim that he was denied a fair trial by the admission of irrelevant and 
highly prejudicial evidence cannot form the basis for habeas relief, because it involves a 
state law evidentiary issue. See Hall v. Vasbinder, 551 F. Supp. 2d 652, 676 (E.D. Mich. 
2008); rev’d on other grds 563 F.3d 222 (6th Cir. 2009); see also Oliphant v. Koehler, 451 
F. Supp. 1305, 1308 (W.D. Mich. 1978).                                    
   Petitioner’s 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 “[t]he Supreme Court has never held (except perhaps within 
the capital sentencing context) that a state trial court’s admission of relevant evidence, 

no matter how prejudicial, amounted to a violation of due process.” Blackmon v. Booker, 
696 F.3d 536, 551 (6th Cir. 2012)(emphasis original).  The Michigan Court of Appeals 
concluded that all of this evidence was relevant under Michigan law for various reasons.  
People  v.  Jackson,  2016  WL  4375655,  at  *3-4.    This  Court  must  defer  to  that 
determination.                                                            
   Moreover, petitioner’s claim that the state court violated M.R.E. 404(b) by admitting 
this other-acts evidence is non-cognizable on habeas review. Bey v. Bagley, 500 F.3d 
514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 (Supreme Court’s 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 defendant’s 
bank robbery trial of “similar acts” 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 “prior bad acts” or “other acts” evidence against petitioner at his state 

trial does not entitle him to habeas relief; there is no clearly established Supreme Court 
law which holds that a state violates a habeas petitioner’s due process rights by admitting 
propensity evidence in the form of “prior bad acts” evidence. See Bugh v. Mitchell, 329 
F.3d 496, 512 (6th Cir. 2003).  Petitioner is not entitled to relief on his first claim. 
   B. Claim # 2.  The right to confrontation claim.                     
   Petitioner next claims that his right to confrontation was violated when the judge 
permitted the victim’s testimony from the preliminary examination to be read to the jury 
after declaring the victim to be unavailable due to the fact that she had died from a drug 
overdose prior to trial.                                                  

   An  exception  to  the  confrontation  requirement  exists  where  a  witness  is 
unavailable  and  gave  testimony  at  previous  judicial  proceedings  against  the  same 
defendant which was subject to cross-examination. However, this exception does not 
apply “unless the prosecutorial authorities have made a good-faith effort to obtain his 
presence at trial.” Barber v. Page, 390 U.S. 719, 724-25 (1968).  When prosecutors seek 
to admit a non-testifying witness’ preliminary hearing testimony, the Confrontation Clause 
requires two things: first, the prosecution must establish that the declarant is “unavailable” 
by showing that prosecutorial authorities have made a good-faith effort to obtain the 
declarant’s presence at trial, and, second, to satisfy the “indicia of reliability” 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); rev’d on other grds, 408 F. App’x 873 (6th Cir. 
2010); cert. den. 132 S. Ct. 125 (2011)(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 witness’ prior, confronted testimony at a 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 “when a witness disappears before trial, it is always possible 
to think of additional steps that the prosecution might have taken to secure the witness’ 
presence, but the Sixth Amendment does not require the prosecution to exhaust every 
avenue of inquiry, no matter how unpromising.” Id., at 71-72.  Significantly, “the deferential 
standard of review set out in 28 U.S.C. § 2254(d) does not permit a federal court to 
overturn a state court’s decision on the question of unavailability merely because the 

federal court identifies additional steps that might have been taken.” Id. at 72.   
   In the present case, petitioner does not dispute that the victim was unavailable for 
trial, in light of the victim’s death prior to trial.  The victim’s “intervening death undeniably 
thwarted all ‘good-faith efforts of the State to produce [her]’” for trial. See Havey v. Kropp, 
458 F.2d 1054, 1057 (6th Cir. 1972).                                      
   Petitioner also had an adequate opportunity to cross-examine the victim at the 
preliminary examination, in spite of his argument to the contrary.  Petitioner is not entitled 
to habeas relief in the absence of any Supreme Court precedent to support his argument 
that his opportunity to cross-examine the victim at the preliminary examination was 
inadequate to satisfy the requirements of the Confrontation Clause. See Williams v. 
Bauman, 759 F.3d 630, 635-36 (6th Cir. 2014).  Although “there is some question whether 
a  preliminary  hearing  necessarily  offers  an  adequate  prior  opportunity  for  cross-
examination for Confrontation Clause purposes[,]” See Al–Timimi v. Jackson, 379 F. 
App’x 435, 437 (6th Cir. 2010), see also Vasquez v. Jones, 496 F.3d 564, 577 (6th Cir. 

2007), the Sixth Circuit in Al-Timini noted that the Supreme Court in Barber indicated that 
“there 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 clause where 
the witness is shown to be actually unavailable.” Al-Timini, 379 F. App’x at 438 (quoting 
Barber, 390 U.S. at 725-26).  The Sixth Circuit in Al-Timini also noted that the Supreme 
Court appeared “to have retreated from the doubts it expressed in Barber by finding that 
the opportunity for cross-examination afforded at a preliminary examination may satisfy 
the Confrontation Clause in at least some circumstances.” Id.  The Sixth Circuit in Al-
Timini observed that the Supreme Court in the cases of California v. Green, 399 U.S. 149 

(1970) and Ohio v. Roberts, 448 U.S. 56 (1980) had found no Confrontation Clause 
violation by the admission of an unavailable witness’ preliminary examination testimony 
because the defendants in both cases had the opportunity to cross-examine the witness 
at the preliminary examination. Al-Timini, 379 F. App’x. at 438-39.  At the preliminary 
hearing  in  this  case,  petitioner  was  represented  by  counsel,  who  was  given  a  full 
opportunity  to  cross-examine  the  victim,  without  any  restriction  by  the  examining 
magistrate, and who took advantage of this opportunity to the extent that counsel saw fit.  
Accordingly, the trial judge’s decision to admit the victim’s testimony from the preliminary 
examination when she was unavailable to testify due to her death was not contrary to, or 
an unreasonable application of clearly established federal law. Williams, 759 F.3d at 635-
36; Al-Timini, 379 F. App’x at 439.  Petitioner is not entitled to relief on his second claim. 
   C. Claim # 3. The ineffective assistance of counsel claims.          
   Petitioner finally argues that he was denied the effective assistance of trial counsel 
when trial counsel failed to object to the admission of the sexually explicit photographs 

and that appellate counsel was ineffective for failing to raise either the issue of the 
admissibility of the sexually explicit photographs or trial counsel’s failure to challenge their 
admissibility on petitioner’s appeal of right.  Petitioner also appears to argue that the trial 
judge erred in invoking M.C.R. 6.508(D)(2) to deny petitioner relief on these claims, which 
he raised in his post-conviction motion, after concluding that petitioner already raised 
these claims on his appeal of right.                                      
   M.C.R. 6.508(D)(2) mandates that a court in Michigan should not grant post-
conviction relief if the post-conviction motion “alleges grounds for relief which were 
decided against the defendant in a prior appeal or proceeding under this subchapter, 

unless the defendant establishes that a retroactive change in the law has undermined the 
prior decision[.]”  6.508(D)(2) is a rule of res judicata which bars a defendant from re-
litigating claims in a post-conviction motion which have already been adversely decided 
against him.  Thus, the state courts’ reliance on M.C.R. 6.508(D) based on res judicata 
does not bar habeas review of petitioner’s claim on the merits. See Hicks v. Straub, 377 
F.3d 538, 558, n. 17 (6th Cir. 2004).  As respondent correctly acknowledges, petitioner’s 
ineffective assistance of counsel claims are not procedurally defaulted.  However, to the 
extent that petitioner seeks habeas relief on his claim that the trial court improperly 
invoked M.C.R. 6.508(D(2) to deny his post-conviction motion, he would not be entitled 
to habeas relief, because it involves an alleged deficiency with his state post-conviction 
proceedings.  This Court notes that “[t]he Sixth Circuit consistently [has] held that errors 
in post-conviction proceedings are outside the scope of federal habeas corpus review.” 
Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007).  A federal habeas corpus petition 
cannot be used to mount a challenge to a state’s scheme of post-conviction relief. See 

Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001), the reason being that the states have 
no  constitutional  obligation  to  provide  post-conviction  remedies.  Id.  (citing  to 
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)).                        
   A defendant must satisfy a two prong test to establish the denial of the effective 
assistance  of  counsel.  First,  the  defendant  must  show  that,  considering  all  of  the 
circumstances,  counsel’s  performance  was  so  deficient  that  the  attorney  was  not 
functioning  as  the  “counsel”  guaranteed  by  the  Sixth  Amendment.  Strickland  v. 
Washington,  466  U.S.  668,  687  (1984).  The  defendant  must  overcome  a  strong 
presumption that counsel’s behavior lies within the wide range of reasonable professional 

assistance. Id.  In other words, the defendant 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  “there  is  a 
reasonable probability that, but for counsel’s unprofessional errors, the result of the 
proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland 
standard applies as well to claims of ineffective assistance of appellate counsel. See 
Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).                       
   Petitioner argues that trial counsel was ineffective for failing to object to the 
admission of the sexually explicit photographs. The judge on post-conviction review 
rejected the claim, because she had already ruled prior to trial that the photographs were 
admissible, thus, it would have been futile for trial counsel to object to their admission at 
trial. People v. Jackson, No. 13-248193-FC, *6 (Oakland County Circuit Court, Aug. 29, 

2019)(ECF No. 13-5, PageID.3125). Prior to trial, defense counsel filed a motion, in 
response to the prosecutor’s request to admit the other-acts evidence, in which counsel 
objected to the admission of the other-acts testimony, including the sexually explicit 
photographs, arguing that the evidence was being admitted for an improper purpose 
under M.R.E. 404(b) and that the evidence was unfairly prejudicial. (ECF No. 10-3, 
PageID.2811-20).  At the hearing on the prosecutor’s motion in limine that was conducted 
on December 3, 2014, defense counsel objected to the admission of the other-acts 
evidence as being offered for the improper purpose of showing petitioner’s propensity to 
commit the crime and that the evidence was extremely prejudicial. (Id., PageID.2829-30).  

The judge ruled that the other-acts evidence was relevant and admissible, although she 
agreed to give the jurors a limiting instruction. (Id., PageID.2833-36).  
   Trial counsel objected prior to trial to the admission of the other-acts evidence, 
both in a motion and at the pre-trial hearing.  Although counsel did not specifically mention 
the photographs, he objected to the admission of evidence of petitioner’s other bad acts.  
The judge ruled that this evidence was admissible. It would have been futile for counsel 
to object again to the admission of this evidence.  Trial counsel was not ineffective for 
failing to raise a futile objection. See U.S. v. Johnson, 9 F. App’x 373, 374 (6th Cir. 2001). 
   Moreover,  the  judge  determined  that  the  other-acts  evidence,  including  the 
photographs, was admissible under Michigan law and the Michigan Court of Appeals 
upheld that ruling.  Federal habeas courts “‘must defer to a state court’s interpretation of 
its own rules of evidence and procedure’ when assessing a habeas petition.” Miskel v. 
Karnes, 397 F.3d 446, 453 (6th Cir. 2005)(quoting Allen v. Morris, 845 F.2d 610, 614 (6th 

Cir. 1988)).  The trial judge and the Michigan Court of Appeals determined that the other-
acts  evidence  was  admissible  under  Michigan  law;  this  Court  must  defer  to  that 
determination in resolving petitioner’s ineffective assistance of trial counsel claim. See 
Brooks v. Anderson, 292 F. App’x 431, 437-38 (6th Cir. 2008).  Because this Court 
“cannot  logically  grant  the  writ  based  on  ineffective  assistance  of  counsel  without 
determining that the state court erred in its interpretation of its own law,” this Court is 
constrained to reject petitioner’s ineffective assistance of trial counsel claim. See Davis 
v. Straub, 430 F.3d 281, 291 (6th Cir. 2005).                             
   The Court rejects the ineffective assistance of appellate counsel claim. 

   Appellate counsel from the State Appellate Defender Office raised a claim on 
petitioner’s appeal of right, in which he argued that the judge violated petitioner’s right to 
a fair trial by admitting this other-acts evidence, which included the photographs. (ECF 
No. 5-33, PageID.2147-58).  Because appellate counsel did argue on appeal that the 
admission of the other-acts evidence was prejudicial, which included the photographs, 
petitioner has failed to establish that appellate counsel was ineffective. See Doyle v. 
Jones, 452 F. App’x 836, 840 (10th Cir. 2011); see also Riley v. Jones, 476 F. Supp. 2d 
696, 709-10 (E.D. Mich. 2007)(appellate counsel was not ineffective for not raising 
identification issue on direct appeal, since omitted issue was closely related to issue that 
appellate counsel did raise on appeal and that issue had been rejected as harmless error). 
   Because trial counsel was not ineffective, appellate counsel was not ineffective in 
failing to raise this claim on petitioner’s appeal of right. See e.g. Fautenberry v. Mitchell, 
515 F.3d 614, 642 (6th Cir. 2008).  “[A]ppellate counsel cannot be found to be ineffective 

for ‘failure to raise an issue that lacks merit.’” Shaneberger v. Jones, 615 F.3d 448, 452 
(6th Cir. 2010)(quoting Greer v. Mitchell, 264 F.3d at 676).  Petitioner is not entitled to 
relief on his third claim.                                                
                        IV.  Conclusion                                 
   The petition is denied with prejudice.  The Court denies a certificate of appealability 
to petitioner.  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).  “The district court must 
issue or deny a certificate of appealability when it enters a final order adverse to the 
applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254. 
   For the reasons stated, the Court denies petitioner a certificate of appealability 
because he has failed to make a substantial showing of the denial of a federal 
constitutional right. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).   
   Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas 
corpus is DISMISSED WITH PREJUDICE.                                       
   IT IS FURTHER ORDERED That a certificate of appealability is DENIED. 
                            s/ Nancy G. Edmunds                         
                            NANCY G. EDMUNDS                            
Dated:   April 7, 2023        UNITED STATES DISTRICT COURT JUDGE