UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 

GARY LEE ROBINSON, 

 Petitioner, 

 CASE NO. 14-13512 

v. 

 HONORABLE VICTORIA A. ROBERTS 

KENNETH McKEE, 

 Respondent. 

___________________________/ 

ORDER DENYING PETITIONER’S MOTION 

FOR A CERTIFICATE OF APPEALABILITY 

(ECF No. 23)

 This matter comes before the Court on petitioner Gary Lee Robinson’s motion for 

a certificate of appealability. The motion follows the Court’s opinion and order denying 

Petitioner’s habeas corpus petition and granting a certificate of appealability on only 

Petitioner’s first claim regarding the voluntariness of his statement to the police. 

Petitioner alleges in his pending motion that his other habeas claims also are 

substantial and worthy of appellate consideration. 

 The Supreme Court pointed out in Miller-El v. Cockrell, 537 U.S. 322, 327 (2003), 

that “a prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no automatic 

right to appeal a district court’s denial or dismissal of the petition. Instead, [the] 

petitioner must first seek and obtain a [certificate of appealability.]” A certificate of 

appealability may issue “only if the applicant has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this 

standard by demonstrating that jurists of reason could disagree with the district court’s 
2 

resolution of his constitutional claims or that jurists could conclude the issues presented 

are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327. 

 The Court previously granted a certificate of appealability on Petitioner’s first 

claim. See 7/30/19 Op. and Order at 32. Petitioner now seeks a certificate of 

appealability on his remaining four habeas claims, which allege that: 

[II.] the trial court violated his Sixth Amendment right to a public trial by 

closing the courtroom to the public on the fourth day of trial when a cell 

phone rang; 

[III.] trial counsel’s failure to object to the closure of the courtroom to the public 

constituted ineffective assistance; 

[IV.] the pretrial attorney rendered ineffective assistance by (a) failing to 

inform Petitioner of his right to testify at an evidentiary hearing on his 

motion to suppress his custodial statement and (b) failing to call a police 

sergeant as a witness at the hearing; and 

[V.] appellate counsel’s failure to raise Petitioner’s fourth claim on direct 

appeal constituted ineffective assistance. 

 The Court determined in its dispositive opinion that Petitioner procedurally 

defaulted his second claim (denial of the right to a public trial) by failing to object to the 

closure of the courtroom during trial. The Court also opined that Petitioner procedurally 

defaulted his fourth claim (ineffective assistance of pretrial counsel) by not raising that 

claim in his appeal of right. 

 Although Petitioner correctly points out in his motion for a certificate of 

appealability that ineffective assistance of counsel can be “cause” for a procedural 

default, the Court addressed that issue in its dispositive opinion. The Court concluded 

that Petitioner’s attorneys were not ineffective and, therefore, Petitioner had not shown 

“cause” for his procedural defaults. See 7/30/19 Op. and Order at 23 and 30. 
3 

 Furthermore, because Petitioner’s claim about the closure of the courtroom 

lacked merit, his third claim about trial counsel’s failure to object to the closure of the 

courtroom also lacked merit. Similarly, because Petitioner’s claim about his pretrial 

attorney lacked substantive merit, in addition to being procedurally defaulted, 

Petitioner’s fifth claim regarding appellate counsel’s failure to raise a claim about the 

pretrial attorney did not warrant habeas relief. 

 Reasonable jurists would not disagree with the district court’s resolution of 

habeas claims two through five. Nor would reasonable jurists conclude that claims two 

through five are adequate to deserve encouragement to proceed further. Accordingly, 

the Court denies Petitioner’s motion for a certificate of appealability on claims two 

through five.1 

 s/ Victoria A. Roberts 

 VICTORIA A. ROBERTS 

 UNITED STATES DISTRICT JUDGE 

Date: 10/15/19

                                                            

1

  The Court would like to take this opportunity to correct a clerical error on lines fourteen 

and fifteen of page three of the Court’s dispositive opinion. The sentence states that 

Petitioner’s theory of the criminal case was that Gregory Ingram was not credible. See

7/30/19 Op. and Order at 3. Ingram, however, was the deceased victim in the criminal 

case. The primary witness against Petitioner was Jason Sutton. Therefore, the 

sentence about Petitioner’s theory of the case should begin as follows: “His theory of 

the case was that Sutton was not credible . . . .”