Opinion
Civil No. 02-CV-71391-DT
October 23, 2003
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
John Lee Moorer, ("Petitioner"), presently confined at the Muskegon Correctional Facility in Muskegon, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his Application, filed pro se, Petitioner challenges his conviction and sentence on one count of second degree murder, M.C.L.A. 750.317; M.S.A. 28.549; one count of possession of a firearm in the commission of a felony, M.C.L.A. 75O.227b; M.S.A. 28.424(2); and being a second felony habitual offender, M.C.L.A. 769.10; M.S.A. 28.1082. For the reasons stated below, the petition for writ of habeas corpus is DENIED.
Petitioner was originally incarcerated at the Riverside Correctional Facility in Ionia, Michigan when he initially filed his habeas petition.
I. Background
Petitioner was accused of shooting and killing his wife in Detroit, Michigan on April 13, 1996. Petitioner was convicted of the above offenses following a jury trial in the Detroit Recorder's Court.
On April 13, 1996, at approximately 9:30 p.m., Jimmy Brown was sitting with his son-in-law, James McCall, in an automobile that was parked in the driveway of a house on Virginia Park in Detroit, Michigan. Brown heard a loud noise which sounded like "pow" and looked to his right. Brown observed Petitioner holding a woman face to face in a "bear hug." The woman slid down to her right side and fell to the ground. Petitioner turned away and walked towards an alley.
James McCall also heard a gunshot and made the same observations as Brown. McCall also observed Petitioner throw or discard something in the alley.
By the time that Petitioner returned to the location of the shooting, other individuals were standing near the victim. One of these individuals informed Petitioner that he had called 911 to obtain emergency medical assistance for the victim. At this point, Petitioner began yelling "Momma, don't leave." Petitioner also informed the persons present at the crime scene that the victim had tripped and fell, causing the gun that she was carrying to discharge. Petitioner also informed these individuals that he had discarded the gun on Wildemere Street.
When police arrived at the crime scene, Petitioner was standing near the ambulance partially covered in blood and crying. Police interviewed the witnesses and recovered a blue steel revolver from a vacant lot at the rear of 3039 Virginia Park, near Wildemere Street. The revolver contained five live .357 Winchester rounds and one spent round. The hospital later released the victim's clothing to the police, who placed these items into evidence.
Petitioner was arrested by police on the evening of the shooting and taken to police headquarters. Petitioner subsequently made a voluntary statement to Detroit Police investigator on April 14, 1996, after being advised of his Miranda warnings. Petitioner informed Fleming that he and his wife were walking down the street when his wife tripped and fell, causing a gun that she had been carrying to discharge. Petitioner claimed that he was shocked. Petitioner told Fleming that he immediately picked the victim off the ground and set her upright. Petitioner began calling for help. Petitioner then took the gun out of the victim's right pocket and threw it into a field. Petitioner told Fleming that he did this because the victim was on probation and he did not want her to get caught with the weapon.
Petitioner claimed that he did not know that his wife was in possession of a firearm until they reached a gas station at Euclid and Linwood, where they had gone to purchase gasoline for their car after it had run out of gasoline. Petitioner denied that he and his wife had been arguing at the time of the shooting. Petitioner denied shooting his wife, but admitted that he had carried this gun in a briefcase before and had previously used the gun to shoot at a rat in his basement.
Dr. Harvey Wilkes, the Deputy Chief of the Wayne County Medical Examiner's Office, was called to testify about the autopsy results. Dr. Wilkes indicated that the autopsy had actually been performed by Dr. Bader J. Cassin, who no longer worked for the medical examiner's office. The autopsy revealed that the victim suffered a gunshot wound in the left chest cavity, with the entry wound being located a bit to the left of mid-line. The bullet went through the left lung, through both the left and right ventricle chambers, and to the victim's back, where the bullet was recovered in fragments. There was no evidence of close range firing, which indicated that the distance between the muzzle of the firearm and the victim was more than two feet. There was also no soot found inside the wound, which would have been present had the gun been placed up against the clothing. The victim suffered some superficial abrasions on the right side of her forehead and her right knee, which would be consistent with injuries that a person would sustain after a fall.
Sergeant Dale Johnston of the Detroit Police Department, a firearms expert, examined the victim's clothing and found a suspected gunshot wound in the left pocket of the victim's blue denim coat starting on the outside of the garment. Johnston found some imbedded powder in the area of the wound which indicated that the weapon was more than a foot away when it was fired. Johnston also examined the blue steel revolver which the police recovered from the crime scene, test fired it, and compared it to the recovered spent bullet and the fired cartridge. Johnston concluded that the spent bullet and fired cartridge came from this weapon. Johnston acknowledged that the revolver did not have a safety bar and could discharge if it sustained a sharp enough blow to the gun's hammer. However, Johnston did not believe that the revolver would likely discharge if dropped on its muzzle, because the hammer did not have enough weight for a "positive occurrence."
Petitioner's conviction was affirmed on appeal. People v. Moorer, 199261 (Mich.Ct.App. February 26, 1999); reh. den., 199261 (Mich.Ct.App. May 10, 1999) (Sullivan, J. would grant rehearing); lv. den., 461 Mich. 860; 601 N.W.2d 390 (1999). Petitioner then filed a post-conviction Motion for Relief From Judgment with the Wayne County Circuit Court, which was denied. People v. Moorer, 96-003583 (Third Judicial Circuit Court, January 10, 2001). Petitioner's application for leave to appeal was denied by the Michigan appellate courts. People v. Moorer, 236218 (Mich.Ct.App. January 4, 2002); Iv. den. 467 Mich. 862; 651 N.W, 2d 915 (2002). Petitioner has now filed an Application for Writ of Habeas Corpus with this Court, in which he seeks habeas relief on the following grounds:
In 1996, the Michigan Legislature abolished the Detroit Recorder's Court and merged its functions with the Wayne County Circuit Court. See Anthony v. Michigan, 35 F. Supp.2d 989, 996-997 (E.D. Mich. 1999).
I. Where Defendant is "actually" and "factually innocent" of the alleged crimes in which he has been convicted.
II. Trial Court/Court of Appeals refusal to grant Defendant's request for remand for an evidentiary hearing on his ineffective assistant (sic) of counsel claims, denied.
III. The Defendant was denied the effective assistant (sic) of appellate counsel on the appeal of right, in violation of U.S. Constitution, Six (sic) Amendment.
IV. On January 10, 2001, the Honorable Bruce U. Morrow, in the Third Judicial Circuit Court, denied the Motion [for Relief From Judgment] under M.C.R. 6.508(D)(3).
In a Motion to Amended (sic) and Supplemental Pleadings, as well as in his Reply Brief, Petitioner appears to raise an additional claim:
V. Petitioner was denied the effective assistance of trial counsel.
II. Standard of Review
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.28 U.S.C. § 2254(d).
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. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "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 411.
III. Discussion
Respondent contends that some or all of Petitioner's claims were procedurally defaulted because he raised them only for the first time in his post-conviction Motion for Relief from Jdgment and the Michigan appellate courts denied him relief pursuant to M.C.R. 6.508(D).
Although the issue of whether a claim is procedurally barred should ordinarily be resolved first, "judicial economy sometimes dictates reaching the merits [of a claim or claims] if the merits are easily resolvable against a petitioner while the procedural bar issues are complicated." Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th) Cir. 1999) (internal citations omitted). In this case, because "the procedural default issue raises more questions than the case on the merits", this Court will assume, for the sake of resolving the claims, that there is no procedural default by Petitioner and will decide the merits of the claims. Falkiewicz v. Grayson, 271 F. Supp.2d 942, 948 (E.D. Mich. 2003Xquoting Binder v. Stegall, 198 F.3d 177, 178 (6th Cir. 1999).
For example, it is doubtful whether Petitioner's ineffective assistance of appellate counsel claim [Claim # III] could be procedurally defaulted. A claim of ineffective assistance of appellate counsel in a post-conviction proceeding "technically . . . is a first-time claim which cannot be procedurally barred." Scoggin v. Kaiser, 186 F.3d 1203, 1209 (10th Cir. 1999) ( quoting English v. Cody, 146 F.3d 1257, 1262 (10th Cir. 1998)). Because an ineffective assistance of appellate counsel claim cannot be raised on direct appeal, it is appropriate to raise such a claim for the first time on post-conviction review. See United States ex. rel Hoard v. Gilmore, 1999 WL 51794, * 3 (N.D. Ill. January 30, 1999). It also appears that at least some of Petitioner's ineffective assistance of trial claims may have been raised on his appeal of right in a supplemental pro se brief.
A. Claim # 1. The newly discovered evidence claim.
Petitioner first claims that he is entitled to a new trial based on newly discovered evidence which he claims would prove his actual innocence of the murder. Petitioner indicates that this newly discovered evidence is Dr. Bader J. Cassin's autopsy report, which indicates that the bullet was recovered from the victim in three separate fragments. Petitioner claims that this newly discovered evidence would prove his innocence, first, because it would impeach the preliminary complaint report prepared by Investigator Ronald L. Tate of the Detroit Police Department, which indicated that one large bullet was removed from the victim. Petitioner further claims that Dr. Cassin's report would support his defense theory that the victim shot herself after falling to the ground.
"A claim of actual innocence based upon newly discovered evidence is not grounds for federal habeas relief." Hence v. Smith, 37 F. Supp.2d 970, 980 (E.D. Mich 1999). "[F]ederal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to correct errors of fact." Herrera v. Collins, 506 U.S. 390, 400 (1993). A claim that a habeas petitioner is entitled to relief based upon the failure of a state trial judge to grant him a trial on the basis of newly discovered evidence is not cognizable in a habeas proceeding. Monroe v. Smith, 197 F. Supp.2d 753, 763 (E.D. Mich. 2001). Thus, Petitioner's claim that he has newly discovered evidence of his innocence does not state a claim upon which habeas relief can be granted. See Johnson v. Hofbauer, 159 F. Supp.2d 582, 606 (E.D. Mich. 2001). Additionally, even those federal courts that have suggested that habeas relief could conceivably be granted upon newly discovered evidence have set an extraordinary showing of a habeas petitioner's innocence before habeas relief could be granted. Dell v. Straub, 194 F. Supp.2d 629, 657 (E.D. Mich. 2002); Johnson v. Hofbauer, 159 F. Supp.2d at 606 (collecting cases).
Even on direct appeal, motions for a new trial based upon newly discovered evidence are "are disfavored and should be granted with caution." Monroe v. Smith, 197 F. Supp.2d at 763 ( quoting United States v. Turns, 198 F.3d 584, 586 (6th Cir. 2000). When a defendant in federal court makes a motion for a new trial based upon newly discovered evidence, a defendant must show:
1. the evidence was discovered after trial;
2. the evidence could not have been discovered earlier with due diligence;
3. the evidence is material and not merely cumulative or impeaching; and
4. the evidence would likely produce an acquittal if the case were retried.United States v. Turns, 198 F.3d at 586-587.
The contents of Dr. Cassin's report are not newly discovered evidence. Dr. Wilkes testified at trial about Dr. Cassin's autopsy findings, including Dr. Cassin's finding that the bullet was recovered in fragments from the victim's back, and not in one piece (Trial Tr., 09/04/96, p. 81). Dr. Wilkes reiterated that parts of the bullet were recovered from the victim and turned over to the police. ( Id. at p. 85). Dr. Cassin's autopsy report does not qualify as "newly discovered" evidence, because the substance of the autopsy report was presented at Petitioner's trial. Johnson v. Hofbauer, 159 F. Supp.2d at 606. Because Dr. Cassin's autopsy report would have been cumulative of Dr. Wilkes' testimony on the same point, the state trial court's failure to grant Petitioner a new trial on the basis of the actual autopsy report did not violate Petitioner's Due Process rights. Id. Moreover, to the extent that Petitioner wanted to use this report to impeach police testimony that a single bullet had been recovered from the victim, the mere existence of impeaching evidence does not warrant a new trial on a habeas claim of actual innocence based upon newly discovered evidence. Dell v. Straub, 194 F. Supp.2d at 657. Petitioner is not entitled to habeas relief on his first claim.
B. Claims # 2 and # 4. The denial of post-conviction relief claims.
The Court will discuss Petitioner's second and fourth claims together because they are interrelated. In his second claim, Petitioner contends that the state trial and appellate courts wrongly denied his request for an evidentiary hearing on the ineffective assistance of counsel claims that he raised in his post-conviction Motion for Relief from Judgment. In his fourth claim, Petitioner contends that the state trial court erred in failing to make any findings of fact on his post-conviction motion.
A federal habeas corpus petition cannot be used to mount a challenge to a state's scheme of post-conviction relief. Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001). The reason for this is that the states have no constitutional obligation to provide post-conviction remedies. Id. (citing to Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)). Any error by the Michigan courts in the application of Michigan's post-conviction statute is an error of state law that would not be cognizable in federal habeas review. See Simpson v. Jones, 238 F.3d 399, 406-407 (6th Cir. 2000). This Court cannot consider Petitioner's claim that the failure of the Michigan courts to conduct an evidentiary hearing on his post-conviction motion violated his constitutional rights, since only a violation of state law is involved. See United States ex. rel. Maxwell v. Gilmore, 37 F. Supp.2d 1078, 1095-1096 (N.D. Ill. 1999) (rejecting claim involving state trial court's failure to conduct a post-conviction evidentiary hearing); See also Payne v. Bell, 194 F. Supp.2d 739, 741-43 (W.D. Term. 2002) (federal habeas petitioner's claim that the failure of the state courts to conduct an evidentiary hearing on his post-conviction petition for writ of error coram nobis violated his rights under the Fourteenth Amendment did not state a cognizable habeas claim). Likewise, Petitioner's allegation that his constitutional rights were violated when the state post-conviction relief court failed to make any findings of fact or conclusions of law also does not rise to the level of a cognizable claim and cannot serve as a basis for granting Petitioner habeas relief. See King v. Bowersox, 213 F. Supp.2d 1026, 1035 (E.D. Mo. 2001); aff'd 291 F.3d 539 (8th Cir. 2002); cert. den. sub nom King v. Roper, 537 U.S. 1093 (2002). Petitioner is therefore not entitled to habeas relief on his second or fourth claims.
C. Claims # 3 and # 5. The ineffective assistance of counsel claims.
For purposes of judicial economy, the Court will consolidate Petitioner's ineffective assistance of appellate and trial counsel claims.
1. Standard of Review
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, 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). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id. In other words, a 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. The Strickland standard applies to claims of ineffective assistance of appellate counsel. Bowen v. Foltz, 763 F.2d 191, 194, fn. 3 (6th Cir. 1985).
2. The ineffective assistance of appellate counsel claim.
Petitioner initially contends that he was deprived of the effective assistance of appellate counsel when his appellate counsel failed to investigate and raise the newly discovered evidence claim involving Dr. Cassin's autopsy report.
The Sixth Amendment guarantees a defendant the right to the 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 nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983); See also Siebert. v. Jackson, 205 F. Supp.2d 727, 735 (E. D. Mich. 2002). Strategic and tactical choices regarding which issues to pursue on appeal are "properly left to the sound professional judgment of counsel." United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). "Generally, only when ignored issues are clearly stronger than those presented will the presumption of effective assistance of appellate counsel be overcome." Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (internal quotations omitted). In fact, winnowing out weaker issues on appeal is actually "the hallmark of effective appellate advocacy." Id. ( quoting Smith v. Murray, 477 U.S. at 536). However, appellate counsel can be constitutionally deficient in omitting a "dead-bang winner" even while zealously pressing other strong claims. Coddington v. Langley, 202 F. Supp.2d 687, 798 (E.D. Mich. 2002) (internal quotation omitted).
In the present case, appellate counsel raised six claims on Petitioner's appeal of right. One of those claims, the ineffective assistance of trial counsel claim, contained five subclaims, and another claim, involving instructional error, contained three subclaims. Appellate counsel's brief on appeal was thirty three pages long and cited to eighty one federal and state cases, as well as fifteen statutes and court rules. Appellate counsel also filed a motion for a Ginther hearing on Petitioner's ineffective assistance of trial counsel claims. Also, a review of the correspondence between appellate counsel and Petitioner reveals that appellate counsel refined and expanded Petitioner's pro se supplemental brief that Petitioner had submitted, even though appellate counsel was under no constitutional duty to prepare and submit a supplemental pro se appellate brief on Petitioner's behalf. See e.g. Henderson v. Collins, 101 F. Supp.2d 866, 881 (S.D. Ohio 1999); aff'd in part, vacated in part on other grds 262 F.3d 615 (6th Cir. 2001) (defendant who was represented by counsel and also sought to submit pro se brief upon appeal did not have right to such hybrid representation). This Court concludes that appellate counsel's performance was not deficient.
People v. Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973).
Moreover, the substance of Dr. Cassin's autopsy report was introduced at Petitioner's trial through the testimony of Dr. Wilkes. The autopsy report would merely have been cumulative to testimony already presented and could not have provided a basis for a new trial. Because this newly discovered evidence would not have provided a basis for a new trial, Petitioner is unable to show that he was prejudiced by appellate counsel's failure to raise his newly discovered evidence claim on his appeal of right. See Kitchen v. United States, 227 F.3d 1014, 1022 (7th Cir. 2000). Accordingly, Petitioner's ineffective assistance of appellate counsel claim is without merit.
3. The ineffective assistance of trial counsel claims.
Finally, Petitioner appears to be raising several claims of ineffective assistance of trial counsel.
In his Motion to Amended (sic) and Supplemental Pleadings, Petitioner alleges that his trial counsel was ineffective for failing to obtain forensic expert testimony at trial to examine the evidence in this case in order to bolster Petitioner's defense that the shooting occurred when the victim tripped and fell, causing the revolver that she was carrying to accidentally discharge. Petitioner raised this claim on his direct appeal in his supplemental pro se brief. The Michigan Court of Appeals rejected this claim, finding that Petitioner had failed to produce any evidence in support of this claim. See People v. Moorer, Slip. Op. at * 3.
In this case, Petitioner has failed to identify any forensic expert who would be willing to testify on his behalf. Petitioner has therefore failed to demonstrate that he was denied the effective assistance of counsel from his trial counsel's failure to use or call a forensic expert to examine the physical evidence in this case, because he has failed to present any testimony to establish that an expert witness could have been obtained to testify favorably for him on this issue. Malcum v. Burt, ___ F. Supp.2d ___; 2003 WL 21910927, * 10 (E.D. Mich. July 30, 2003); Dell v. Straub, 194 F. Supp.2d at 650-651.
In his reply brief, Petitioner contends that trial counsel was ineffective in failing to cross-examine James McCall. Petitioner specifically contends that counsel should have cross-examined McCall about an alleged inconsistency between his testimony and that of Larry Brown. Brown testified that McCall, his son-in-law, was in the front seat of the car with him at the time of the shooting. Petitioner alleges that McCall testified that he was sitting in the driveway in the car, with his wife driving. Petitioner contends that trial counsel was ineffective for failing to cross-examine McCall about this inconsistency about who he was with at the time of the shooting.
"Courts generally entrust cross-examination techniques, like other matters of trial strategy, to the professional discretion of counsel." Dell v. Straub, 194 F. Supp.2d at 651. "Impeachment strategy is a matter of trial tactics, and tactical decisions are not ineffective assistance of counsel simply because in retrospect better tactics may have been available." Id.
In the present case, Petitioner has quoted McCall's testimony out of context. McCall testified that at the time of the shooting, he was at his mother-in-law's house waiting for his wife to come outside. McCall testified that he was sitting in the driveway in his car with Larry Brown while waiting for his wife. The prosecutor asked McCall where he was sitting in the car, to which he replied "I was on the passenger side. My wife was driving." While waiting, McCall heard a gunshot. (Trial Tr., 09/04/96, pp. 87-88). Contrary to Petitioner's claim, McCall did not testify that he was with his wife at the time of the shooting. Instead, McCall's testimony was consistent with Brown's testimony about who was present at the time the shooting took place. McCall's testimony about his wife driving obviously referred to who was driving the car on the night in question, in order to explain his presence in the passenger seat. There was no inconsistencies between McCall's testimony and Brown's testimony. This part of Petitioner's ineffective assistance of counsel claim must therefore fail, because he has not shown how he was prejudiced by counsel's failure to cross-examine McCall. See Dell v. Straub, 194 F. Supp.2d at 652.
With respect to Petitioner's remaining ineffective assistance of trial counsel claims, the Court rejects them because Petitioner has failed to offer any arguments in support of these claims. In fact, although Petitioner mentions, as part of his second claim, that he raised seven ineffective assistance of trial counsel claims in his post-conviction motion, it is unclear whether Petitioner wanted to raise these issues as a substantive ineffective assistance of counsel claim, or was merely listing these claims in passing while discussing the state post-conviction relief court's failure to conduct an evidentiary hearing on his ineffective assistance of trial counsel claims. Nonetheless, Petitioner offers no arguments to support these claims, assuming that he is raising them as independent claims. A habeas petitioner's conclusory allegation that his attorney failed to adequately present a defense, without specifying what more his attorney could have done to strengthen his defense, is insufficient to establish ineffective assistance of counsel. Campbell v. Grayson, 207 F. Supp.2d 589, 598 (E.D. Mich. 2002). Petitioner has therefore failed to establish that he was deprived of the effective assistance of trial counsel.
See Appellant's Brief in Support, p. 22.
IV. Conclusion
The Court will deny the Petition for Writ of Habeas Corpus. The Court will also deny 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, 483-484 (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. at 484. A federal district court may grant or deny a certificate of appealability when the court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002). A district court thus has the power to deny a certificate of appealability sua sponte. Grayson v. Grayson, 185 F. Supp.2d 747, 753 (E.D. Mich. 2002).
For the reasons stated in this opinion, the Court will deny Petitioner a Certificate of Appealability because he has failed to make a substantial showing of the denial of a federal constitutional right. Jurists of reason would not find this Court's resolution of Petitioner's claims to be debatable or that they should receive encouragement to proceed further. Myers v. Straub, 159 F. Supp.2d 621, 629 (E.D. Mich. 2001). The Court will also deny Petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Grayson, 185 F. Supp.2d at 753.
V. ORDER
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.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma pauperis.