UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DONALD R. MAHADAY,

Petitioner,

v. CASE NO. 02-CV-72363-DT

HONORABLE AVERN COHN

JOHN CASON,

Respondent.

____________________________/

ORDER GRANTING IN PART A CERTIFICATE OF APPEALABILITY

I.

This is a habeas corpus case under 28 U.S.C. § 2254. Donald R. Mahaday

(Petitioner), a state prisoner convicted of first-degree murder and assault with intent to

commit murder, filed a petition claiming to be incarcerated in violation of his

constitutional rights. Petitioner raised several grounds for relief. The Court, following

an evidentiary hearing, denied the petition. See Order filed April 27, 2005. Petitioner

seeks to appeal the Court’s decision. 

II.

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

(COA) must issue. See 28 U.S.C. § 2253(c)(1) and Fed. R. App. P. 22(b). A COA may

be issued “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, 529 U.S. 473, 120

S. Ct. 1595 (2000), the United States Supreme Court held that where a petition is

rejected on the merits, “the petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or wrong.” 120

2:02-cv-72363-AC Doc # 59 Filed 06/22/05 Pg 1 of 4 Pg ID 261
2

S. Ct. at 1604. The Supreme Court also explained that where the petition is dismissed

on procedural grounds, petitioner must show “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in a

different matter or that the issues presented were ‘adequate to deserve encouragement

to proceed further.’” 120 S. Ct. at 1603-04 (quoting Barefoot v. Estelle, 463 U.S. 880,

898 n.4 (1983)). The Supreme Court recently explained that “[t]his threshold inquiry

does not require full consideration of the factual or legal bases adduced in support of

the claims.” Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). “A prisoner seeking a

COA must prove ‘something more than the absence of frivolity’ ‘or the existence of mere

good faith on his or her part.’” A prisoner need not prove that “some jurists would grant

the petition for habeas corpus .... a claim can be debatable even though every jurist of

reason might agree, after the COA has been granted and the case has received full

consideration, that petitioner will not prevail.” Id. at 1040.

In this circuit, the Court must make an individualized determination of each claim

raised in the petition in considering whether or not to grant a COA. See Murphy v. State

of Ohio, 263 F.3d 466 (6th Cir. 2001) (per curiam). Where, as here, a Petitioner files a

notice of appeal, the Court must issue a order granting or denying a COA. Castro v.

United States, 310 F.3d 900 (6th Cir. 2002) (per curiam).

III.

Petitioner raised the following grounds for relief in the petition:

A. Conviction based on perjured testimony. Prosecution

witness Jefferson Galloway wrote a letter to Petitioner’s

family recanting his testimony.

B. Ineffective assistance of trial and appellate counsel. 

Petitioner was granted immunity for his testimony against 

Michael Loukas and was originally not charged in this

2:02-cv-72363-AC Doc # 59 Filed 06/22/05 Pg 2 of 4 Pg ID 262
3

matter. Loukas was bound over for trial and Petitioner was

released from custody. Several months later, Petitioner was

charged with the crime. This issue was never raised by trial

or appellate counsel.

C. Prosecutorial misconduct

1. In an attempt to prove that a robbery had

occurred, the prosecutor (a) gave the jury the

impression that the victims’ wallets were

missing at the crime scene and (b) suppressed

evidence that wallets and other personal

effects were returned to the victims’ families. 

(Pursuant to police report).

2. The prosecutor injected personal beliefs that

were not supported by fact. All evidence and

testimony showed that there was only one

shooter during the commission of the crime. 

The prosecutor repeatedly stated that he

“thought both defendants shot the victims” and

that he “thought defendants passed the gun

around.”

3. The prosecutor failed to disclose that he had

made a deal with a prosecution witness. The

prosecutor arranged for the witness to receive

a light sentence for armed robbery in exchange

for his testimony.

4. The prosecutor misstated evidence in his

closing arguments. Though there were no

prosecution witnesses present at the crime

scene, the prosecutor stated that the witnesses

had “seen and heard” the crime being

committed.

5. The prosecutor misstated the law. The

prosecutor told the jury “all you have to do is

threaten a person and ask for money, that is

attempted armed robbery.”

D. Petitioner was impeached with a nonexistent felony

conviction. While cross examining Petitioner, the prosecutor

accused Petitioner of being guilty of a felony which was

actually a misdemeanor.

2:02-cv-72363-AC Doc # 59 Filed 06/22/05 Pg 3 of 4 Pg ID 263
4

E. Trial counsel was ineffective where he failed to object to

hearsay testimony. A prosecution witness testified as to

what he was told by Petitioner’s co-defendant.

F. The trial court failed to instruct the jury on Petitioner’s theory

of the case. The underlying felony was never proven and

Petitioner’s contention that the only crime he committed was

“taking money under false pretenses,” which is a

misdemeanor, was never explained to the jury.

G. Trial counsel was deficient where he failed to file a pretrial

motion to quash the felony murder charge where there was

no evidence that a felony took place.

H. Juror misconduct denied Petitioner a fair trial. A juror stated

on the first day of trial that she believed Petitioner was guilty.

I. The trial court’s instruction on intoxication was inadequate.

Following the appointment of counsel for Petitioner and the filing of briefs, the

Court held an evidentiary hearing which focused primarily on Petitioner’s first and

second habeas claims regarding Jeff Galloway’s alleged perjured testimony and the

alleged promise of immunity. Following the hearing, the Court denied all of Petitioner’s

claims. 

Upon review of the record, reasonable jurists could debate whether Petitioner is

entitled to habeas relief based on his first two claims; however, reasonable jurists could

not debate the Court’s conclusion as to Petitioner’s remaining claims. Accordingly, a

certificate of appealability is GRANTED as to Petitioner’s first and second habeas

claims set forth as Claims A. and B. above.

SO ORDERED.

s/Avern Cohn 

AVERN COHN

Dated: June 22, 2005 UNITED STATES DISTRICT JUDGE

 Detroit, Michigan

2:02-cv-72363-AC Doc # 59 Filed 06/22/05 Pg 4 of 4 Pg ID 264