UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

ROYALE LAMPTON IRVIN, 

 Petitioner, 

 Case No. 14-13783 

v. Honorable Linda V. Parker 

THOMAS WINN, 

 Respondent. 

________________________________/ 

OPINION & ORDER DENYING THE PETITION FOR A WRIT OF 

HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, 

& DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

 This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan 

prisoner Royale Lampton Irvin (“Petitioner”) is challenging his convictions of 

second-degree murder in violation of Michigan Compiled Laws Section 750.317 

and possession of a firearm during the commission of a felony, second offense, in 

violation of Michigan Compiled Laws Section 750.227b, following a jury trial in 

the Wayne County Circuit Court. The trial court sentenced Petitioner to 

consecutive terms of 35 to 70 years imprisonment and five years imprisonment for 

those convictions in 2011. In his petition, he raises claims concerning the 

admission of text messages at trial, an upward sentencing departure, and the late 

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appointment of counsel at his preliminary examination. For the reasons set forth 

below, the Court is denying the petition for a writ of habeas corpus. The Court 

also is denying a certificate of appealability and leave to proceed in forma pauperis 

on appeal. 

II. Facts and Procedural History

 Petitioner’s convictions arise from the shooting death of Derry/Derek 

Kirkland1

 at his home in Detroit, Michigan, during the early morning hours on 

January 29, 2011. The Michigan Court of Appeals described the relevant facts as 

follows: 

The evidence at trial showed that defendant went to the 

home of Karen Thomas (“Tee Tee”) at 3:00 a.m. and 

knocked on the door. When Derek Kirkland, her 

boyfriend, answered the door, defendant asked whether 

Tee Tee was home and then shot Kirkland five times 

through the door. Several witnesses testified that, after 

the shooting, defendant claimed that he did not “do 

drivebys,” he did “knock knocks.” Two other individuals 

were charged. One of them drove with defendant to 

Thomas’ home and the other obtained the address of the 

home and information that Thomas, the intended victim, 

was home at that time. Both of these individuals were 

allowed to plead to lesser charges in exchange for their 

testimony. Defendant testified that he went to the home 

to confront “Tee Tee,” who he believed had participated 

in a rape of his sister two years earlier. Defendant 

 

1

The transcripts and appellate briefs refer to the victim as Derry Kirkland, but the 

Michigan Court of Appeals refers to him as Derek Kirkland. 

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claimed that he acted in self-defense and that, when he 

knocked on the door, Kirkland opened the door with a 

gun in his hands. 

People v. Irvin, No. 306188, 2013 WL 6124275, *1 (Mich. Ct. App. Nov. 21, 

2013) (unpublished). These factswhich are presumed correct on habeas review. 

See 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009). 

 Following his convictions and sentencing, Petitioner filed an appeal of right 

with the Michigan Court of Appeals asserting that the trial court erred in admitting 

text messages sent by Karen Thomas, that the trial court erred in departing above 

the state sentencing guidelines in imposing his sentence, that he was denied due 

process because counsel was appointed moments before the start of his preliminary 

examination, and that trial counsel was ineffective for failing to object to 

prosecutorial misconduct and for failing to properly represent him at sentencing. 

The Michigan Court of Appeals denied relief on those claims and affirmed 

Petitioner’s convictions and sentences. Id. at *1-3. Petitioner then filed an 

application for leave to appeal with the Michigan Supreme Court raising the text 

message, upward sentencing departure, and preliminary examination appointment 

of counsel claims. The court denied leave to appeal in a standard order. People v. 

Irvin, 846 N.W.2d 397 (Mich. 2014). 

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 Petitioner dated his initial federal habeas petition on September 25, 2014. In 

that petition, he raised claims concerning the admission of text messages at trial, an 

upward sentencing departure, the late appointment of counsel at his preliminary 

examination, and the constructive denial/ineffective assistance of trial counsel. 

The Court dismissed that petition without prejudice to allow Petitioner to return to 

the state courts and exhaust his constructive denial/ineffective assistance of trial 

counsel claim. 

 Petitioner subsequently moved to reopen this case to proceed on an amended 

petition containing only his three properly-exhausted claims. The Court granted 

Petitioner’s motion and reopened the case on December 2, 2014. Respondent has 

since filed an answer to the petition, as amended, contending that it should be 

denied because all three claims lack merit and the final claim is also procedurally 

defaulted. Petitioner filed a reply to the answer. 

III. Standard of Review

 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets 

forth the standard of review federal courts must use when considering habeas 

petitions brought by prisoners challenging their state court convictions. AEDPA 

provides in relevant part: 

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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) (1996). 

 “A state court’s decision is ‘contrary to’ . . . clearly established law if it 

‘applies a rule that contradicts the governing law set forth in [Supreme Court 

cases]’ or if it ‘confronts a set of facts that are materially indistinguishable from a 

decision of [the Supreme] Court and nevertheless arrives at a result different from 

[that] precedent.’ ” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) 

(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 

535 U.S. 685, 694 (2002). 

 “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal 

habeas court to ‘grant the writ if the state court identifies the correct governing 

legal principle from [the Supreme] Court but unreasonably applies that principle to 

the facts of [the] petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) 

(quoting Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n 

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order for a federal court to find a state court’s application of [Supreme Court] 

precedent ‘unreasonable,’ the state court’s decision must have been more than 

incorrect or erroneous. The state court’s application must have been ‘objectively 

unreasonable.’ ” Wiggins, 539 U.S. at 520-21 (citations omitted); see also

Williams, 529 U.S. at 409. “AEDPA thus imposes a ‘highly deferential standard 

for evaluating state-court rulings,’ and ‘demands that state-court decisions be given 

the benefit of the doubt.’ ” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting 

Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per 

curiam)). 

 The United States Supreme Court has held that “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)). The Supreme Court has emphasized “that even a strong case for 

relief does not mean the state court’s contrary conclusion was unreasonable.” Id.

(citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). A habeas court “must 

determine what arguments or theories supported or . . . could have supported, the 

state court’s decision; and then it must ask whether it is possible fairminded jurists 

could disagree that those arguments or theories are inconsistent with the holding in 

a prior decision” of the Supreme Court. Id. Thus, in order to obtain federal habeas 

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relief, a state prisoner must show that the state court’s rejection of a claim “was so 

lacking in justification that there was an error well understood and comprehended 

in existing law beyond any possibility for fairminded disagreement.” Id.; see also 

White v. Woodall, -- U.S. --, 134 S. Ct. 1697, 1702 (2014). Federal judges “are 

required to afford state courts due respect by overturning their decisions only when 

there could be no reasonable dispute that they were wrong.” Woods v. Donald, --

U.S. --, 135 S. Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long 

as it is within the “realm of possibility” that fairminded jurists could find the state 

court decision to be reasonable. Woods v. Etherton, -- U.S. --, 136 S. Ct. 1149, 

1152 (2016). 

 Section 2254(d)(1) limits a federal court’s review to a determination of 

whether the state court’s decision comports with clearly established federal law as 

determined by the Supreme Court at the time the state court renders its decision. 

Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 

(2009) (noting that the Supreme Court “has held on numerous occasions that it is 

not ‘an unreasonable application of clearly established Federal law’ for a state 

court to decline to apply a specific legal rule that has not been squarely established 

by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per 

curiam)); Lockyer, 538 U.S. at 71-72. Section 2254(d) “does not require a state 

court to give reasons before its decision can be deemed to have been ‘adjudicated 

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on the merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does not require 

citation of [Supreme Court] cases–indeed, it does not even require awareness of 

[Supreme Court] cases, so long as neither the reasoning nor the result of the statecourt decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002); see also

Mitchell, 540 U.S. at 16. 

 The requirements of “clearly established law” are to be determined solely by 

Supreme Court precedent. Thus, “circuit precedent does not constitute ‘clearly 

established Federal law, as determined by the Supreme Court,’ ” and “[i]t therefore 

cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 567 

U.S. --, 132 S. Ct. 2148, 2155 (2012) (per curiam); see also Lopez v. Smith, -- U.S. 

-- 135 S. Ct. 1, 2 (2014) (per curiam). Nevertheless, the decisions of lower federal 

courts may be useful in assessing the reasonableness of the state court’s decision. 

Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v. Bowersox, 

340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 2d 354, 359 

(E.D. Mich. 2002). 

 Lastly, a state court’s factual determinations are presumed correct on federal 

habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption 

with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th 

Cir. 1998). Moreover, habeas review is “limited to the record that was before the 

state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 

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IV. Discussion

A. Text Message Claim

 Petitioner first asserts that he is entitled to habeas relief because the trial 

court erred in admitting text messages sent to and from Karen Thomas and 

Petitioner’s co-defendants. Thomas did not testify at trial, but the co-defendants 

did. The text messages essentially showed that the co-defendants were angry with 

Thomas. Respondent contends that this claim is not cognizable upon habeas 

review and otherwise lacks merit. 

 A federal court may only grant habeas relief to a person who is “in custody 

in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 

§ 2254(a). Alleged trial court errors in the application of state evidentiary law are 

generally not cognizable as grounds for federal habeas relief. See Estelle v. 

McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas 

court to reexamine state-court determinations on state-law questions”); Serra v. 

Michigan Dep’t of Corrections, 4 F.3d 1348, 1354 (6th Cir. 1993). “Trial court 

errors in state procedure or evidentiary law do not rise to the level of federal 

constitutional claims warranting relief in a habeas action, unless the error renders 

the proceeding so fundamentally unfair as to deprive the petitioner of due process 

under the Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 

2004) (quoting McGuire, 502 U.S. at 69-70); see also Wynne v. Renico, 606 F.3d 

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867, 871 (6th Cir. 2010) (citing Bey v. Bagley, 500 F.3d 514, 519-20 (6th Cir. 

2007)); Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). 

 The Michigan Court of Appeals denied relief on this claim finding that the 

texts were sent or received by the person testifying and were cumulative of the 

witnesses’ testimony, that they were relevant to show the co-defendants’ states of 

mind regardless of whether Thomas sent or received the messages, that they 

provided the jury with a context for the events, and that their admission did not 

violate the Confrontation Clause because they were not testimonial in nature. 

Irvin, 2013 WL 6124275 at *1-2. The court also ruled that even if an error 

occurred, it was not outcome determinative. Id. at *2. 

 The state court’s denial of relief is neither contrary to Supreme Court 

precedent nor an unreasonable application of federal law or the facts. First, to the 

extent Petitioner asserts that the trial court erred in admitting the text messages 

under Michigan law, he merely alleges a violation of state law which does not 

justify federal habeas relief. State courts are the final arbiters of state law and the 

federal courts will not intervene in such matters. Lewis v. Jeffers, 497 U.S. 764, 

780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987); see also Bradshaw 

v. Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 

2002). Habeas relief does not lie for perceived errors of state law. Estelle, 502 

U.S. at 67-68. 

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 Second, with regard to federal law, the admission of the text messages did 

not render Petitioner’s trial fundamentally unfair. The text messages were relevant 

and admissible to show the co-defendants’ states of mind and to provide context 

for their actions, as well as Petitioner’s conduct in approaching the house during 

the middle of the night and shooting the victim. Petitioner’s confrontation rights 

also were not violated by their admission because the messages were 

communications between acquaintances and were not testimonial. See Crawford v. 

Washington, 541 U.S. 36, 68 (2004) (ruling that the Confrontation Clause does not 

apply to non-testimonial statements). 

 Moreover, even if an error occurred, it was harmless. For purposes of 

federal habeas review, a constitutional error that implicates trial procedures is 

considered harmless if it did not have a “substantial and injurious effect or 

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 

637 (1993); see also Fry v. Pliler, 551 U.S. 112, 117-18 (2007) (confirming that 

the Brecht standard applies in “virtually all” habeas cases); Ruelas v. 

Wolfenbarger, 580 F.3d 403, 411 (6th Cir. 2009) (ruling that Brecht is “always the 

test” in the Sixth Circuit). As noted by the Michigan Court of Appeals, the text 

messages were cumulative of the witnesses’ trial testimony and Petitioner admitted 

shooting the victim. Additionally, the co-defendants’ testimony provided 

significant evidence of Petitioner’s intentions and guilt of second-degree murder at 

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trial. Given such circumstances, Petitioner fails to establish that any error in 

admitting the text messages had a substantial or injurious effect on the jury’s 

verdict. Habeas relief is not warranted on this claim. 

B. Upward Departure Sentencing Claim

 Petitioner next asserts that he is entitled to habeas relief because the trial 

court erred in imposing a sentence above the recommended state sentencing 

guideline range. Respondent contends that this claim is not cognizable upon 

habeas review and lacks merit. 

 A sentence imposed within the statutory limits is generally not subject to 

federal habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. 

Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999). Claims which arise out of a 

state trial court’s sentencing decision are not cognizable upon habeas review unless 

the petitioner can show that the sentence imposed exceeded the statutory limits or 

is wholly unauthorized by law. Lucey v. Lavigne, 185 F. Supp. 2d 741, 745 (E.D. 

Mich. 2001). Petitioner’s sentence is within the statutory maximum. See Mich. 

Comp. Laws § 750.317 (providing that second-degree murder is punishable by any 

term of years or life imprisonment). Consequently, it is insulated from habeas 

review absent a federal constitutional violation. 

 The Michigan Court of Appeals denied relief on this claim finding that the 

upward departure was justified under state law due to substantial and compelling 

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reasons, which included the fact that the victim was shot five times when he 

answered the door to his home at 3:00 a.m., that Petitioner shot the wrong person 

and intended to retaliate against Karen Thomas for the alleged rape of his sister 

two years before the shooting, and that Petitioner had recently been paroled on a 

felony involving a gun. Irvin, 2013 WL 6124275 at *2-3. 

 The state court’s decision is neither contrary to Supreme Court precedent nor 

an unreasonable application of federal law or the facts. Petitioner’s claim that the 

state court improperly departed from the guidelines range concerns a state law 

issue which is not cognizable on habeas review. See Austin v. Jackson, 213 F.3d 

298, 301 (6th Cir. 2000) (upward departure from state sentencing guidelines does 

not implicate federal due process rights); Cheatham v. Hosey, 12 F.3d 211, 1993 

WL 478854, *2 (6th Cir. Nov. 19, 1993) (departure from state sentencing 

guidelines is a state law issue which is not cognizable on federal habeas review); 

Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999) (claim that sentencing 

court departed from Michigan sentencing guidelines presents an issue of state law 

only and is not cognizable in federal habeas review); Welch v. Burke, 49 F. Supp. 

2d 992, 1009 (E.D. Mich. 1999) (same). As discussed, state courts are the final 

arbiters of state law and the federal courts will not intervene in such matters. 

Lewis, 497 U.S. at 780; Oviedo, 809 F.2d at 328; see also Bradshaw, 546 U.S. at 

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76; Sanford, 288 F.3d at 860. Petitioner fails to establish a violation of his 

constitutional rights. Habeas relief is not warranted on this claim. 

C. Preliminary Examination Appointment of Counsel Claim

 Lastly, Petitioner asserts that he is entitled to habeas relief because his due 

process rights were violated when the state court appointed defense counsel just 

moments before the start of his preliminary examination. Respondent contends 

that this claim is barred by procedural default and lacks merit. 

 Federal habeas relief may be precluded on claims a petitioner has not 

presented to the state courts in accordance with the state’s procedural rules. 

Wainwright v. Sykes, 433 U.S. 72, 85-87 (1977). The doctrine of procedural 

default is applicable when a petitioner fails to comply with a state procedural rule, 

the rule is actually relied upon by the state courts, and the procedural rule is 

“adequate and independent.” White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006); 

see also Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005); Coleman v. 

Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). “A procedural default does not bar 

consideration of a federal claim on either direct or habeas review unless the last 

state court rendering a judgment in the case ‘clearly and expressly’ states that its 

judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S. 255, 263-64 

(1989). The last explained state court judgment should be used to make this 

determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state 

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judgment is a silent or unexplained denial, it is presumed that the last reviewing 

court relied upon the last reasoned opinion. Id. 

 Here, the Michigan Court of Appeals rendered the last reasoned opinion. In 

denying relief on this claim, the court relied upon a state procedural bar-- that is, 

Petitioner’s failure to preserve the issue in the trial court. Irvin, 2013 WL 6124275 

at *3. The failure to make a contemporaneous objection is a recognized and 

firmly-established independent and adequate state law ground for refusing to 

review trial errors. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 

(1999); People v. Stanaway, 446 Mich. 643, 687, 521 N.W.2d 557 (1994); see also 

Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). Moreover, a state court does 

not waive a procedural default by looking beyond the default to determine if there 

are circumstances warranting review on the merits. Paprocki v. Foltz, 869 F.2d 

281, 285 (6th Cir. 1989). Plain error review does not constitute a waiver of state 

procedural default rules. Girts v. Yanai, 501 F.3d 743, 755 (6th Cir. 2007); Hinkle 

v. Randle, 271 F.3d 239, 244 (6th Cir. 2001). Nor does a state court fail to 

sufficiently rely upon a procedural default by ruling on the merits in the 

alternative. McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). In this case, 

the Michigan Court of Appeals denied relief based upon Petitioner’s failure to 

preserve the issue. 

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 A state prisoner who fails to comply with a state’s procedural rules waives 

the right to federal habeas review absent a showing of cause for noncompliance 

and actual prejudice resulting from the alleged constitutional violation, or a 

showing of a fundamental miscarriage of justice. See Coleman, 501 U.S. at 753; 

Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). To establish cause, a 

petitioner must establish that some external impediment frustrated his ability to 

comply with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488 

(1986). A petitioner must present a substantial reason to excuse the default. 

Amadeo v. Zant, 486 U.S. 214, 223 (1988). Such reasons include interference by 

officials, attorney error rising to the level of ineffective assistance of counsel, or a 

showing that the factual or legal basis for a claim was not reasonably available. 

McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). 

 Petitioner neither alleges nor establishes cause to excuse this procedural 

default.2

 A federal habeas court need not address the issue of prejudice when a 

 

2

Petitioner mistakenly believes that the default concerns the presentation of the 

issue to the state appellate courts and argues that appellate counsel was ineffective 

as cause. Assuming that Petitioner would assert that trial counsel was ineffective 

for failing to preserve the issue in the trial court, he cannot prevail because he has 

not exhausted that claim of ineffective assistance of counsel in the state courts. It 

is well-settled that a claim of ineffective assistance of counsel asserted as cause to 

excuse a procedural default is an independent constitutional claim which requires 

proper exhaustion in state court. See Edwards v. Carpenter, 529 U.S. 446, 453 

(2000). Because Petitioner has not exhausted this claim of ineffective assistance of 

trial counsel in the state courts, he cannot rely upon it to establish cause to excuse 

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petitioner fails to establish cause to excuse a procedural default. Smith v. Murray, 

477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983). 

 Nonetheless, the Court finds that Petitioner cannot establish prejudice. Even 

assuming that counsel was appointed just before the preliminary examination,3

Petitioner fails to show that he was prejudiced by the late appointment. He fails to 

allege with any specificity what counsel would have discovered or done differently 

to benefit his defense if he had been appointed in a more timely fashion. 

Conclusory allegations are insufficient to warrant habeas relief. See, e.g., Cross v. 

Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007); Workman v. Bell, 178 F.3d 759, 

771 (6th Cir. 1998) (conclusory allegations of ineffective assistance of counsel do 

not justify habeas relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th 

Cir. 2006) (bald assertions and conclusory allegations do not provide a basis for 

evidentiary hearing on habeas review). Furthermore, Petitioner was convicted of 

 

his procedural default. See, e.g., Jacobs v. Mohr, 265 F.3d 407, 417-18 (6th Cir. 

2001). 

3

The Court notes that in reviewing this claim for plain error, the Michigan Court of 

Appeals found that counsel was appointed on February 10, 2011 and that the 

preliminary examination was rescheduled and conducted on March 10, 2011. 

Irvin, 2013 WL 6124275 at *3. If true, Petitioner’s claim is belied by the record. 

The state court docket sheet, however, is unclear on this point. It shows that the 

preliminary examination on February 17, 2011 was cancelled at defense request 

and was conducted on March 10, 2011. It also shows that a motion to assign 

counsel was filed/signed on March 10, 2011. (Register of Actions, ECF No. 10-1.) 

The Court need not resolve this issue in order to decide this case.

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second-degree murder and felony firearm following a full jury trial well after 

counsel was appointed. Any error arising from the late appointment of counsel at 

the preliminary examination therefore was harmless. See, e.g., Coleman v. 

Alabama, 399 U.S. 1, 11 (1970) (ruling that harmless error applies when a criminal 

defendant is denied counsel at a preliminary hearing); Takacs v. Engle, 768 F.2d 

122, 124 (6th Cir. 1985); Dodge v. Johnson, 471 F.2d 1249, 1252 (6th Cir. 1973) 

(record failed to establish that lack of counsel at preliminary examination 

prejudiced petitioner’s rights at trial or tainted finding of guilt). Petitioner fails to 

establish that he was denied due process or otherwise prejudiced by the alleged late 

appointment of counsel at the preliminary examination. 

 Petitioner also fails to show that a fundamental miscarriage of justice has 

occurred. The miscarriage of justice exception requires a showing that a 

constitutional violation probably resulted in the conviction of one who is actually 

innocent. Schlup v. Delo, 513 U.S. 298, 326-27 (1995). “‘[A]ctual innocence’ 

means factual innocence, not mere legal insufficiency.” Bousley v. United States, 

523 U.S. 614, 624 (1998). “To be credible, [a claim of actual innocence] requires 

petitioner to support his allegations of constitutional error with new reliable 

evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness 

accounts, or critical physical evidence – that was not presented at trial.” Schlup, 

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513 U.S. at 324. Petitioner makes no such showing. This claim is thus barred by 

procedural default, otherwise lacks merit, and does not warrant habeas relief. 

V. Conclusion

 For the reasons stated, the Court concludes that Petitioner is not entitled to 

federal habeas relief on the claims contained in his petition. 

 Before Petitioner may appeal the Court’s decision, a certificate of 

appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). When a 

federal court denies relief on the merits, the substantial showing threshold is met if 

the petitioner demonstrates that reasonable jurists would find the court’s 

assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 

U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by demonstrating 

that . . . jurists could conclude the issues presented are adequate to deserve 

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 

(2003). Petitioner makes no such showing. The Court, therefore, is denying 

Petitioner a certificate of appealability. The Court also is denying Petitioner leave 

to proceed in forma pauperis on appeal as an appeal cannot be taken in good faith. 

See Fed. R. App. P. 24(a). 

 Accordingly, 

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IT IS ORDERED that Petitioner’s application for the writ of habeas corpus 

pursuant to 28 U.S.C. § 2254 is DENIED; 

IT IS FURTHER ORDERED that Petitioner is DENIED a certificate of 

appealability and leave to appeal in forma pauperis. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: December 2, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, December 2, 2016, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

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