OPINION AND ORDER GRANTING IN PART A CERTIFICATE OF APPEALABILITY AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

VICTORIA A. ROBERTS, United States District Judge.

On October 12, 2000, Petitioner filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenged his 1990 state court conviction for first-degree murder. On January 23, 2002, Magistrate Judge Paul J. Komives issued a report and recommendation that the Petition for Writ of Habeas Corpus be denied. On September 16, 2002, this Court issued an order accepting the report and recommendation and denying the Petition for Writ of Habeas Corpus. The Court denied Petitioner's Motion for Reconsideration on October 21, 2002.

On October 28, 2002, Petitioner filed a Notice of Appeal, a Motion for a Certificate of Appealability, and Motion to Proceed In Forma Pauperis on Appeal. On November 27, 2002, Magistrate Judge Paul J. Komives issued a report and recommendation that a certificate of appealability be denied and that Petitioner be denied leave to appeal in forma pauperis. Petitioner has filed objections to Magistrate Judge Komives's report and recommendation. For the reasons stated below, the Motion for a Certificate of Appealability will be GRANTED IN PART. The Court will also grant Petitioner leave to appeal in forma pauperis.

A. Standard of Review

28 U.S.C. § 2253(c)(1)(A) and F.R.A.P. 22(b) state that an appeal from the district court's 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). A district court is to set forth in its order all of the issues that the petitioner raised in the habeas action and identify those issues, if any, that the district court is certifying for appeal. In Re Certficates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).

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, 483-484 (2000). When a district court rejects a habeas petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Id.

B. The individual claims.

1. Claim #1. The appointment of a forensic expert claim.

In his first claim, Petitioner alleged that he was denied his right to a fair trial because the state trial court failed to appoint an independent expert pathologist to examine the blood stain evidence.

Magistrate Judge Komives indicated in both of his reports that the United States Supreme Court has never extended its ruling in Ake v. Oklahoma, 470 U.S. 77 (1985), which held that a defendant is entitled to a court-appointed psychiatric expert when insanity is an issue, to the appointment of other types of experts. Magistrate Judge Komives further noted in his report and recommendation that a certificate of appealability be denied that "the extension of Ake to non-psychiatric experts would constitute a `new rule' of criminal law" that would be barred by the non-retroactivity principle enunciated in Teague v. Lane, 489 U.S. 288 (1989). Magistrate Judge Komives noted that the Sixth Circuit and several other circuit courts had extended Ake beyond the actual holding in that case, but concluded that such cases did not constitute "clearly established federal law as determined by the Supreme Court" under § 2254(d)(1) so as to entitle Petitioner to habeas relief or a certificate of appealability.

The Antiterrorism and Effective Death Penalty Act's (AEDPA) standard of review found in 28 U.S.C. § 2254(d)(1) prohibits the use of lower court decisions in determining whether the state court decision is contrary to, or an unreasonable application of, clearly established federal law. Miller v. Straub, 299 F.3d 570, 578-579 (6th Cir. 2002). In Miller, the Sixth Circuit cited to the United States Supreme Court's decision in Williams v. Taylor, 529 U.S. 362, 412 (2000), in which the Supreme Court defined "clearly established federal law as determined by the Supreme Court" to mean the holdings of the Supreme Court. Id.

The Sixth Circuit has indicated that the standard for determining whether a habeas petitioner has made a substantial showing of the denial of a constitutional right, so as to be entitled to a certificate of appealability, is similar to the standard for determining whether a habeas petitioner is entitled to habeas relief pursuant to 28 U.S.C. § 2254(d). In Cooey v. Coyle, 289 F.3d 882, 897 (6th Cir. 2002), the Sixth Circuit noted:

"We assume that the standards of 28 U.S.C. § 2254(d) are to be imported into the analysis [for determining whether a certificate of appealability should issue] under § 2253(c)."

The Sixth Circuit concluded that in determining whether a habeas petitioner is entitled to a certificate of appealability under § 2253(c), a court must ask whether the petitioner has made a "substantial showing" that the decision of the state court "was contrary to clearly established constitutional doctrine as declared by the Supreme Court." Cooey v. Coyle, 289 F.3d at 897. Other circuits have made similar rulings. See e.g. Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000) (determination of whether a certificate of appealability should issue "must be made by viewing the petitioner's arguments through the lens of the deferential scheme laid out in § 2254(d)").

In light of the fact that the United States Supreme Court has not yet extended its holding in Ake v. Oklahoma to require the appointment of non-psychiatric experts to indigent criminal defendants, this Court determines that Petitioner has failed to make a substantial showing of the denial of a constitutional right, because he is unable to show that the state court's refusal to appoint an independent pathologist was contrary to, or an unreasonable application of, clearly established federal law. Petitioner is not entitled to a certificate of appealability on this first claim.

2. Claim #2. The impeachment evidence claim.

In his second claim, Petitioner contended that the trial court violated his constitutional rights by refusing to allow his defense counsel to impeach prosecution witness Jerry McKenzie with a prior conviction for obstruction of justice. Magistrate Judge Komives concluded that this obstruction of justice conviction went only to the witness' general credibility and recommended that a certificate of appealability be denied on Petitioner's claim, because the Sixth Amendment right to confrontation extends only to attacks on a witness' bias, motive, or prejudice, and does not extend to attacks on a witness' general credibility.

Courts have issued a certificate of appealability on Confrontation Clause claims where the issue presented a "close question". See Bui v. DiPaolo, 985 F. Supp. 219, 229 (D. Mass. 1997). This Petitioner's Sixth Amendment claim does not present a "close question." First, Jerry McKenzie's obstruction of justice conviction went only to his general credibility, and not to his motive, bias, or prejudice to testify. Although Petitioner claims in his objection to the report and recommendation that defense counsel wanted to use Jerry McKenzie's obstruction of justice conviction to show his motive, bias, or prejudice, neither Petitioner nor his trial counsel in the affidavit provided by Petitioner has offered a reason why this conviction could have called into question Jerry McKenzie's motive, bias, or prejudice.

Secondly, as Magistrate Judge Komives indicated in his original report and recommendation, the exclusion of Jerry McKenzie's obstruction of justice conviction was harmless error at best, in light of the other evidence which was introduced to impeach this witness' credibility. A violation of the Confrontation Clause can be harmless error. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). For purposes of determining whether federal habeas relief must be granted to a state prisoner on the ground of federal constitutional error, the appropriate harmless error standard to apply is whether the error had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993). Because Petitioner has not shown that the trial court's exclusion of this impeachment evidence had an injurious effect on the outcome of his case, he is not entitled to a certificate of appealability on this claim. See Trevino v. Johnson, 168 F.3d 173, 184 (5th Cir. 1999).

3. Claim #3. The accomplice witness instruction claim.

Petitioner alleged in his third claim that the trial court erred by refusing to give the jury an accomplice witness instruction. Magistrate Judge Komives recommended that a certificate of appealability be denied on his claim, because a criminal defendant has no constitutional right to an accomplice witness instruction, and the failure of a state court to give such an instruction is not a basis for granting federal habeas relief. See e.g. Scott v. Mitchell, 209 F.3d 854, 883 (6th Cir. 2000).

Petitioner did not contest Magistrate Judge Komives's recommendation. Therefore, the Court will adopt the recommendation and will deny Petitioner a certificate of appealability on this claim.

4. Claim #4. The right to testify claim.

Petitioner in his fourth claim alleged that he was denied his constitutional right to testify because the trial court failed to obtain an explicit waiver from him on the record regarding his right to testify. Magistrate Judge Komives recommended that a certificate of appealability be denied because it is well established that a trial court is not required to inquire whether a defendant knowingly or intelligently waived his right to testify. See e.g. Gonzales v. Elo, 233 F.3d 348, 356 (6th Cir. 2000).

Petitioner did not object to Magistrate Judge Komives's recommendation. Therefore, the Court will adopt the recommendation and will deny Petitioner a certificate of appealability on this claim as well.

5. Claim #5. The suppression of evidence claim.

In his fifth claim, Petitioner alleged that the prosecutor failed to inform the jury that Jerry McKenzie had been given two deals in exchange for his testimony, in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963).

Magistrate Judge Komives recommended that a certificate of appealability be denied on this claim. With respect to Petitioner's allegation that the prosecutor withheld from the jury the fact that the State failed to charge Jerry McKenzie with the murder of the victim in this case, Magistrate Judge Komives noted that Petitioner had failed to offer any evidence of an actual agreement, either express or implied, between the prosecutor's office and Jerry McKenzie that he would not be charged with the murder, thus, defeating this part of Petitioner's claim.

Magistrate Judge Komives likewise concluded that Petitioner was not entitled to a certificate of appealability that the prosecutor withheld evidence that he had agreed to dismiss some unrelated traffic offenses against Jerry McKenzie in exchange for his testimony. In his previous report, Judge Komives had noted that defense counsel had been able to impeach Jerry McKenzie with his prior convictions, as well as his involvement in the murder. Defense counsel also established through the cross-examination of Jerry McKenzie and the examination of other witnesses that Jerry McKenzie had a motive to murder the victim. In spite of this impeachment, the jury chose to believe Jerry McKenzie. Magistrate Judge Komives concluded that it would not be debatable among jurists of reason that the prosecutor's agreement to dismiss some "relatively minor traffic offenses," assuming such an agreement existed, would have altered the jury's assessment of Jerry McKenzie's credibility.

A habeas petitioner is entitled to a certificate of appealability on a Brady, claim where the district court considers the issue to be a "close call." See Tankleff v. Senkowski, 135 F.3d 235, 242 (2nd Cir. 1998). For the reasons stated by Magistrate Judge Komives in his report and recommendation, this Court does not consider Petitioner's Brady claim to have been a "close call." Accordingly, a certificate of appealability will be denied on this claim.

6. Claims #6 and #7. The ineffective assistance of counsel claims.

In his sixth and seventh claims, Petitioner contends that he was denied the effective assistance of counsel.

A habeas petitioner's ineffective assistance of counsel claim must make the substantial showing of the denial of a constitutional right that would justify the issuance of a certificate of appealability. See Skaggs v. Parker, 235 F.3d 261, 266 (6th Cir. 2000).

Petitioner first contended that his trial counsel was negligent for failing to file an interlocutory appeal of the trial court's rulings regarding the appointment of an independent forensic expert or the use of Jerry McKenzie's obstruction of justice conviction for impeachment purposes. Magistrate Judge Komives recommended that a certificate of appealability be denied on this claim, because Petitioner failed to show that he was prejudiced by counsel's failure to appeal either issue. With respect to the forensic expert, Magistrate Judge Komives concluded that Petitioner had failed to show how a forensic expert would have helped his defense, because there was no dispute as to the cause of death, nor was there any dispute that Jerry McKenzie helped to dispose of the body. In his objection to the report and recommendation, however, Petitioner contends that he needed a forensic expert to show that a left handed person killed the victim, which he claims would have exculpated him of this crime, because he is right handed, while Jerry McKenzie, the main prosecution witness, was left handed. Petitioner further notes that although Jerry McKenzie was seen both before and after the arrest with scratches on his face and blood on his face, hands, and clothing, no one tested this evidence or tested for trace blood evidence under the victim's fingernails.

The Court believes that its original decision to deny Petitioner habeas relief on this claim was correct. However, in light of the arguments made by Petitioner in his objections to the Magistrate's report and recommendation, this Court believes that the resolution of this claim could be debatable amongst jurists of reason. Accordingly, the Court will grant a certificate of appealability with respect to Petitioner's claim that trial counsel was ineffective for failing to file an interlocutory appeal from the trial court's denial of the appointment of a forensic expert, as well as his related claim that appellate counsel was ineffective for failing to raise this claim on his appeal of right.

With respect to Petitioner's remaining ineffective assistance of counsel claims, the Court will deny a certificate of appealability, because Petitioner, for the reasons stated by Magistrate Judge Komives in his report and recommendation, has failed to make a substantial showing that he was prejudiced by counsel's alleged ineffectiveness.

In light of the fact that the Court is granting a certificate of appealability in part, the Court will grant Petitioner leave to appeal in forma pauperis (IFP). A court may grant IFP status if the court finds 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. (citing to Harkins v. Roberts, 935 F. Supp. 871, 873 (S.D. Miss. 1996). Because the Court is granting a certificate of appealability, the Court finds that Petitioner's appeal is undertaken in good faith and will, therefore, grant him leave to appeal in forma pauperis.

ORDER

IT IS ORDERED That a Certificate of Appealability is GRANTED in part with respect to Petitioner's ineffective assistance of counsel claim involving the failure by counsel to appeal the trial court's failure to appoint a forensic expert to assist the defense. A certificate of appealability will be DENIED with respect to the remaining claims.

IT IS FURTHER ORDERED that Petitioner will be GRANTED leave to appeal in forma pauperis.