UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Franchot Prather, 

Petitioner, 

v. 

Connie Horton, 

Respondent. 

________________________________/

Case No. 14-14860 

Judith E. Levy 

United States District Judge 

OPINION AND ORDER DENYING THE AMENDED HABEAS 

CORPUS PETITION, DECLINING TO ISSUE A CERTIFICATE 

OF APPEALABILITY, AND DENYING PERMISSION 

TO APPEAL IN FORMA PAUPERIS

 Petitioner Franchot Prather filed a pro se amended habeas corpus 

petition under 28 U.S.C. § 2254. He challenges his state convictions for 

assault with intent to commit murder, Mich. Comp. Laws § 750.83, 

assault with a dangerous weapon (felonious assault), Mich. Comp. Laws 

§ 750.82, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, 

and possession of a firearm during the commission of a felony (felony 

firearm), second offense, Mich. Comp. Laws § 750.227b. Petitioner alleges 

ineffective assistance of counsel at trial and on appeal. Respondent 

Connie Horton urges the Court to deny relief. 

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For the reasons set forth below, Petitioner’s claims for habeas relief 

are denied. Accordingly, the Court denies the amended petition, declines 

to issue a certificate of appealability, and denies Petitioner permission to 

appeal this decision in forma pauperis. 

I. Background 

A. The Trial and Sentence 

 The charges against Petitioner arose from a shooting on West 

Alexis Street in Ecorse, Michigan about 9:00 p.m. on a summer evening 

in 2011. Petitioner was tried in Wayne County Circuit Court in 2012. The 

Michigan Court of Appeals summarized the relevant facts as follows: 

On the evening of August 4, 2011, Jamil Lockheart was 

drinking beer with his neighbor on the neighbor’s front porch 

when defendant rode up on his bicycle and started talking to 

the neighbor about purchasing some marijuana. A brief verbal 

exchange between Lockheart and defendant resulted in 

defendant’s challenge to resolve their differences in a nearby 

vacant lot. Lockheart, presuming they would settle their 

disagreement by fisticuffs, accepted the challenge. He took 

two steps toward the lot, saw defendant pull a gun from his 

waistband, and immediately turned around and headed for 

home. Lockheart heard a gunshot, felt a bullet hit his leg, and 

fell to the ground. He hopped up and tried to run home, but 

defendant shot him in the other leg. As Lockheart tried to 

crawl away, defendant shot him again. In all, defendant shot 

Lockheart under the heart, twice in the left-side ribs, twice in 

the left leg, and once in the right leg. Defendant then pointed 

the gun at Lockheart’s head. As Lockheart pled with 

defendant and tried to duck and dodge, defendant pulled the 

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trigger again, sending a shot past Lockheart’s head before 

running away. 

 . . . . 

During the trial, Lockheart testified that defendant shot 

him. In addition, Vanessa Williams testified to having 

witnessed defendant shoot Lockheart. Williams stated that 

she was sitting in a vehicle parked nearby and had an 

unobstructed view of defendant aiming a gun at Lockheart 

and of “fire” coming from the defendant’s gun. Steven Salas, 

the detective who investigated the shooting, testified to the 

chronology and conduct of the investigation. . . . 

People v. Prather, No. 310005, 2013 WL 3835958, at *1 (Mich. Ct. App. 

July 25, 2013).1 During Detective Salas’s subsequent interview with 

Petitioner, he swabbed Petitioner’s hands and detected the presence of 

gunpowder residue. (See ECF No. 8-4, PageID.277–79). 

 The only defense witness was Petitioner’s fiancé, Elizabeth Hudson. 

She testified that, on the night of the crime, she went to Petitioner’s home 

on Knox Street in Ecorse at about 8:15 or 8:30 p.m. Around 9:00 p.m., she 

and Petitioner left the house. She dropped Petitioner off at the home of 

Misael and Jaime Pacheco on Tenth and Outer Drive at about 9:05 p.m. 

She spoke briefly with Mr. and Mrs. Pacheco and then went to her 

brother’s house. She returned to the Pachecos’ house about 10:00 p.m. 

1 This summary of the facts is supported by the record. However, the victim’s 

surname is spelled “Lockhart” in the transcript of trial. (See, e.g., ECF No. 8-4, 

PageID.192). 

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The same people were there, and Petitioner’s frame of mind was the same 

as it had been earlier that evening. He did not talk about an incident, and 

she did not see a gun. (Id. at PageID.323-331.) 

Ms. Hudson thought that Petitioner stayed at the Pachecos’ house 

from the time she went to her brother’s house until she returned to the 

Pachecos’ house, but she admitted he could have left the Pachecos’ house 

and returned to the house while she was away. She claimed that she 

would not lie for Petitioner, that Petitioner was not the type of person to 

commit the crime, and that he could not have done the shooting because 

he did not have a gun and was at the Pacheco’s house, and not the scene 

of the crime, at the time of the incident. (Id., PageID.334-37.) 

During closing arguments, defense counsel argued that Petitioner 

was not present during the shooting, that the testimony of prosecution 

witnesses was not reliable, and that the gunshot residue test was not 

science. (See ECF No. 8-5, PageID.353-67.) Defense counsel urged the 

jurors to acquit Petitioner of all the charges. (See id.) 

On March 15, 2012, the jurors found Petitioner guilty, as charged, 

of assault with intent to commit murder, felonious assault, felon in 

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possession of firearm, and felony firearm. (See ECF No. 8-5, PageID.396-

398.)

At the sentencing on March 29, 2012, Petitioner claimed that his 

attorney did not do anything that he told him to do. (ECF No. 8-6, 

PageID.412.) He also asserted that he did not commit the crimes for 

which he was about to be sentenced. (See Id., PageID.412–13). 

Nonetheless, the trial court sentenced Petitioner as a habitual offender 

to five years in prison for the felony firearm conviction, to be followed by 

concurrent terms of thirty-five years to seventy-five years for the assault 

with intent to commit murder, fifty-four months to fifteen years for the 

felonious assault, and six to fifteen years for being a felon in possession 

of a firearm. (See id., PageID.413–14; see also ECF No. 8-9, PageID.519). 

B. The Direct Appeal 

 On appeal from his convictions, Petitioner argued that the trial 

court erred and violated his right of confrontation by admitting Detective 

Salas’ testimony about the gunshot residue test. Petitioner also claimed 

that his trial attorney was ineffective for failing to renew his pretrial 

objection to testimony about the gunshot residue test. The Michigan 

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Court of Appeals rejected these arguments and affirmed Petitioner’s 

convictions. See Prather, 2013 WL 3835958, at *3. 

 In an application for leave to appeal in the Michigan Supreme 

Court, Petitioner phrased the issues as follows: 

Was it prosecutorial- and police misconduct to knowingly 

present unsupported suppressed evidence? 

And was it misleading to the jury to present the same 

evidence that is otherwise inadmissible without laying a 

proper foundation pursuant to the rules of evidence? 

Further, did trial counsel render constitutionally deficient 

assistance when he failed to object on the above grounds? 

And was it deficient for appellate counsel failure to raise the 

above by reviewing the record? 

(ECF No. 8-10, PageID.593, 597.) 

In addition to those issues about the gunshot residue test, 

Petitioner implied that his trial attorney was ineffective for failing to 

interview and produce Jomar Overall as a witness. See id. at PageID.582, 

584–585, 602. On December 23, 2013, the Michigan Supreme Court 

denied leave to appeal because it was not persuaded to review the 

questions presented to it. See People v. Prather, 495 Mich. 916 (2013). 

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C. The Initial Habeas Petition

On December 22, 2014, Petitioner commenced this case by filing his 

initial habeas corpus petition. (See ECF No. 1.) His first ground for relief 

alleged that his trial counsel deprived him of the presumption of 

innocence and his right to remain silent by disclosing his legal status. 

(Id. at PageID.5.) Petitioner also asserted that appellate counsel was 

ineffective for failing to raise this claim on direct appeal and for waiving 

oral argument without informing him. (Id.) 

 Petitioner’s second ground for relief was that the trial court 

deprived him of impeachment evidence. (Id. at PageID.7.) Petitioner’s 

third and final ground for relief alleged that his trial attorney ignored the 

Pachecos, who would have supported his alibi defense. (Id. at PageID.8.) 

Petitioner admitted in his habeas petition that he did not exhaust 

state remedies for these claims. (Id. at PageID.5–9.) Consequently, on 

January 16, 2015, the Court held Petitioner’s case in abeyance pending 

exhaustion of state remedies and closed this case for administrative 

purposes. (ECF No. 2.) 

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D. Post-Conviction Proceedings in State Court

 On or about April 7, 2015, Petitioner filed a motion for relief from 

judgment in the state trial court. (ECF No. 8-7.) His motion alleged that 

trial counsel was ineffective for (a) disclosing Petitioner’s legal status to 

the jury by stipulating to Petitioner being a felon, (b) failing to move for 

a mistrial when the trial court deprived Petitioner of his right to impeach 

a witness, and (c) failing to investigate and produce alibi witnesses that 

were endorsed on Petitioner’s witness list. (Id. at PageID.417.) He also 

asserted that appellate counsel was ineffective for failing to file a motion 

to remand for an evidentiary hearing on trial counsel’s ineffectiveness. 

(Id.) 

Petitioner raised claims in his supporting brief in a similar manner 

to the way he presented these claims to the Court in his initial habeas 

corpus petition. (Id. at PageID.418–19.) On June 14, 2016, the trial court 

denied Petitioner’s post-conviction motion because he failed to show 

“good cause” under Michigan Court Rule 6.508(D)(3) for not raising his 

claims on appeal. (ECF No. 8-8.) 

 In a delayed application for leave to appeal the trial court’s decision 

that the Michigan Court of Appeals received December 13, 2016, 

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Petitioner argued that his trial attorney’s failure to procure the Pachecos 

as alibi witnesses and his disclosure of Petitioner’s legal status 

constituted deficient performance and ineffective assistance. (ECF No. 8-

11, PageID.670.) He also alleged that his appellate attorney was 

ineffective for failing to raise Petitioner’s ineffective assistance of counsel 

claim, regarding trial counsel’s failure to secure the presence of the 

Pacheco’s at trial, on appeal. (ECF No. 8-11, PageID.683.) The Michigan 

Court of Appeals denied leave to appeal because Petitioner failed to 

establish that the trial court erred in denying his motion for relief from 

judgment. See People v. Prather, No. 336119 (Mich. Ct. App. Feb. 6, 2017). 

 Petitioner raised the same issues and one new issue in an 

application for leave to appeal in the Michigan Supreme Court. (ECF No. 

8-12, PageID.722–28.) The new issue he alleged was that trial counsel 

was ineffective for failing to call Mr. Overall, a witness whose statement 

undermined the credibility of a witness for the prosecution. (Id. at 

PageID.727.) Petitioner contends that Mr. Overall’s “testimony would 

have changed the outcome of the case proving defendant was actually 

innocent of the crime.” (Id. at PageID.727.) On December 27, 2017, the 

Michigan Supreme Court denied leave to appeal because Petitioner had 

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failed to establish entitlement to relief under Michigan Court Rule 

6.508(D). See People v. Prather, 501 Mich. 946 (2017). 

E. The Amended Petition and Answer in Opposition

 On April 3, 2018, Petitioner returned to federal court with a motion 

to lift the stay and to amend his habeas corpus petition (ECF No. 3) and 

an amended petition (ECF No. 4). The amended petition raises two 

grounds for relief: (1) trial counsel’s failure to file a proper alibi notice or 

to amend the notice “resulted in the forfeiture of alibi witnesses and le[ft] 

Petitioner without any defense at all”; and counsel’s failure to speak 

directly to witnesses and to secure their attendance, and counsel’s 

“disclos[ure] of [Petitioner]’s legal status prevented [Petitioner] from 

testifying about his whereabouts [for] fear of being impeached” (ECF No. 

4, PageID.29); and (2) “trial counsel’s failure to call, question, [and] cross 

examine res gestae witness Jomar Overall” and “appellate counsel[‘s] 

fail[ure] to raise this well preserved issue on appeal” amounted to 

ineffective assistance. (id., PageID.31.) 

On October 9, 2018, the Court granted Petitioner’s motion to lift the 

stay and to amend the habeas petition. (ECF No. 5.) The Court also reopened this case and ordered the Clerk of Court to serve the habeas 

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petitions on the State. (Id.) On April 9, 2019, Respondent filed her answer 

in opposition to the petition and the state-court record. (ECF Nos. 7 and 

8.) 

Respondent argues that habeas relief is not warranted because: 

Petitioner’s claims about trial counsel and alibi witnesses are 

procedurally defaulted and meritless; (2) Petitioner’s claim about trial 

counsel and res gestae witness, Jomar Overall, is unexhausted, 

procedurally defaulted, and meritless; and (3) to the extent Petitioner 

raises a separate claim of ineffective assistance of appellate counsel, his 

claim is meritless. (ECF No. 7, PageID.77–117.) 

Petitioner did not file a reply to Respondent’s answer. To the extent 

Petitioner did not raise any of his claims at all levels of state court review, 

the Court excuses the procedural error because the exhaustion rule is not 

a jurisdictional requirement. Castille v. Peoples, 489 U.S. 346, 349 (1989). 

Despite a petitioner’s failure to exhaust the available remedies in state 

court, a federal district court may deny a habeas petition on the merits. 

28 U.S.C. § 2254(b)(2).

In the habeas context, a procedural default is not a jurisdictional 

matter either. Trest v. Cain, 522 U.S. 87, 89 (1997). Accordingly, a federal 

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court may bypass a procedural-default question in the interest of judicial 

economy if the claim can be resolved easily against the habeas petitioner. 

Lambrix v. Singletary, 520 U.S. 518, 525 (1997). Petitioner’s claims do 

not warrant habeas relief, and the Court finds it more efficient to address 

the merits of his claims than to analyze whether the claims are 

procedurally defaulted. The Court, therefore, proceeds to address 

Petitioner’s claims. 

II. Legal Standards 

28 U.S.C. § 2254(d) imposes the following standard of review for 

habeas cases: 

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).

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“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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 

(2004)). If no state court adjudicated a petitioner’s claim on the merits, § 

2254’s deferential standard of review does not apply, and the Court 

reviews the claim de novo. Stermer v. Warren, 959 F.3d 704, 721 (6th Cir. 

2020) (citing Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003)). 

The “clearly established Federal law” for Petitioner’s claim is 

Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a 

defendant must demonstrate “that counsel’s performance was deficient” 

and “that the deficient performance prejudiced the defense.” Id. at 687. 

An attorney’s performance is deficient if “counsel’s representation fell 

below an objective standard of reasonableness.” Id. at 688. The defendant 

must show “that counsel made errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment.” Id. at 687. 

 The prejudice prong of the Strickland test “requires showing that 

counsel’s errors were so serious as to deprive the defendant of a fair trial, 

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a trial whose result is reliable.” Id. The defendant must show “a 

reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Id. at 694. “This does 

not require a showing that counsel’s actions ‘more likely than not altered 

the outcome,’” but “[t]he likelihood of a different result must be 

substantial, not just conceivable.” Richter, 562 U.S. at 111–12 (quoting 

Strickland, 466 U.S. at 693). 

“An attorney undoubtedly has a duty to consult with the client 

regarding ‘important decisions,’ including questions of overarching 

defense strategy.” Florida v. Nixon, 543 U.S. 175, 187 (2004) (quoting 

Strickland, 466 U.S. at 688). However, “the mere fact that [an] attorney 

pursued a strategy other than the one [the defendant] thought was best 

does not show ineffective assistance of counsel” as “most matters of 

strategy are entrusted to counsel, not the defendant.” Wimberly v. 

Kowalski, 838 F. App'x 173, 176 (6th Cir. 2020) (citing Gonzalez v. United 

States, 553 U.S. 242 (2008)). 

 “Appellate counsel’s assistance is assessed under the same 

Strickland two-part standard.” Richardson v. Palmer, 941 F.3d 838, 858 

(6th Cir. 2019) (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)). To 

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prevail on a claim of ineffective assistance of appellate counsel, a habeas 

petitioner must demonstrate (1) that his appellate attorney acted 

unreasonably in failing to discover and raise non-frivolous issues on 

appeal, and (2) there is a reasonable probability that he would have 

prevailed on appeal if his attorney had raised the issues. Smith, 528 U.S. 

at 285 (citing Strickland, 466 U.S. at 687–91, 694). 

III. Discussion

No state court adjudicated the merits of Petitioner’s claims about 

the ineffective assistance of trial counsel. Thus, this Court’s review is de 

novo. Stermer, 959 F.3d at 721. 

A. Ineffective Assistance of Counsel at Trial

1. The Pachecos

Petitioner alleges that his trial attorney was ineffective for failing 

to file a proper alibi notice and for failing to amend the alibi notice. The 

record indicates that the first alibi notice did not conform to the court 

rules, and after defense counsel corrected the errors, the second alibi 

notice was untimely. (See ECF No. 8-3, PageID.134.) The prosecutor 

objected to the notices, but at a subsequent hearing, she stated that she 

was leaving it up to the trial court to decide whether to allow defense 

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counsel to present his alibi witnesses. (Id.) The trial court denied the 

prosecutor’s motion, based on her comment that she could present a fair 

trial with the amended notice of alibi. (Id., PageID.134–37.) 

Defense counsel subsequently produced one alibi witness (ECF No. 

8-4, PageID.334–337), and he maintained during his closing argument 

that Petitioner was not present during the crime, that the prosecution 

witnesses were not reliable, and that there was more than enough doubt 

for the jury to acquit Petitioner. (ECF No. 8-5, PageID.353–367.) 

Petitioner’s claim that trial counsel’s defective alibi notices left him 

without a defense is not supported by the record. Accordingly, he has no 

right to relief on his claim. 

Petitioner alleges next that his trial attorney ignored his request to 

speak directly with witnesses and thereby failed to secure the attendance 

of witnesses. However, defense counsel did produce one alibi witness, 

Elizabeth Hudson, and he subpoenaed Mr. and Mrs. Pacheco. Defense 

counsel’s amended notice of alibi showed that Mr. and Mrs. Pacheco were 

expected to testify that Petitioner was at their home from approximately 

9:00 p.m. on the day of the crime until the following morning. (ECF No. 

8-7, PageID.479). 

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“[T]he failure to call a known alibi witness generally would 

constitute ineffective assistance of counsel.” Bigelow v. Williams, 367 

F.3d 562, 570 (6th Cir. 2004). “But Strickland specifically commands that 

a court ‘must indulge [the] strong presumption’ that counsel ‘made all 

significant decisions in the exercise of reasonable professional 

judgment.’” Cullen v. Pinholster, 563 U.S. 170, 196 (2011) (quoting 

Strickland, 466 U.S. at 689–90). Even if defense counsel did not speak 

with the Pachecos directly, as Petitioner instructed, he pursued 

Petitioner’s preferred trial strategy by subpoenaing them for trial. 

Though the Pachecos did not appear for trial, defense counsel requested 

arrest warrants for the Pachecos, and the trial court granted his request. 

(See ECF No. 8-4, PageID.317–18; see also ECF No. 8-5, PageID.390–91.) 

This summary of the record demonstrates that defense counsel 

attempted to secure the presence of the Pachecos as additional alibi 

witnesses, and he preserved the importance of their testimony as an issue 

for appeal. Trial counsel had no control over whether the Pachecos 

honored the subpoenas. Indeed, their failure to honor the subpoenas 

could suggest that they might have been reluctant witnesses and not 

helpful to the defense. But we do not know why they failed to appear – 

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only that trial counsel subpoenaed them and then took the additional 

step of seeking an arrest warrant to sure their appearance at trial. 

Petitioner has failed to show that his trial attorney’s performance was 

deficient and that the allegedly deficient performance prejudiced the 

defense. 

 2. Counsel’s Disclosure of Petitioner’s Legal Status

Petitioner asserts that trial counsel was ineffective for disclosing 

his legal status to the jurors and that this prevented him from testifying 

about his location at the time of the crime for fear of being impeached. 

(ECF No. 4, PageID.29.) Petitioner appears to be referring to defense 

counsel’s stipulation that Petitioner was previously convicted of a felony 

and that he had no right to possess a firearm on the day when Mr. 

Lockhart was shot. (See ECF No. 8-4, PageID. 190–91).

There was an obvious reason for stipulating to Petitioner’s status 

as a felon. Petitioner was charged with being a felon in possession of a 

firearm. The stipulation eliminated the prosecutor’s need to produce 

Petitioner’s criminal record to prove the felon-in-possession charge. That, 

in turn, prevented the jury from learning the nature of Petitioner’s prior 

convictions. 

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Defense counsel’s strategy was reasonable as it prevented 

potentially prejudicial evidence from being admitted. Therefore, defense 

counsel was not ineffective for stipulating to Petitioner’s status as a felon. 

3. Failing to Produce Jomar Overall

Petitioner also claims that trial counsel was ineffective for failing 

to produce Jomar Overall as a witness and “proceeded to closing 

arguments against [his] wishes.” (ECF No. 4, PageID.31.) Mr. Overall 

was the driver of the car in which eyewitness Vanessa Williams was 

seated during the shooting. Ms. Williams claimed that she saw Petitioner 

shoot Mr. Lockhart. 

Under Strickland, an attorney’s decisions about what evidence to 

present and whether to call or question witnesses are presumed to be 

matters of trial strategy. See Finley v. Burt, No. 2:15-CV-14455, 2021 WL 

4478930, at *10 (E.D. Mich. Sept. 30, 2021) (citing Cathron v. Jones, 77 

F. App’x 835, 841 (6th Cir. 2003)). Petitioner concedes that his defense 

attorney consulted with him on this strategy, in accordance with 

Strickland. (ECF No. 4, PageID.31.) Here, there is no reason to believe 

that Mr. Overall would have exonerated Petitioner. Therefore, defense 

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counsel’s failure to call Mr. Overall as a defense witness did not amount 

to ineffective assistance. 

B. Ineffective Assistance of Appellate Counsel

 An appellate attorney is not required to raise every non-frivolous 

claim requested by his or her client if the attorney decides, as a matter of 

professional judgment, not to raise the claim. Jones v. Barnes, 463 U.S. 

745, 751 (1983); see also Richardson v. Palmer, 941 F.3d 838, 858 (6th 

Cir. 2019) (“Appellate attorneys are not required to raise every ‘colorable’ 

claim.”). In fact, 

 the process of “‘winnowing out weaker arguments on appeal’ ” 

is “the hallmark of effective appellate advocacy.” Smith v. 

Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 

(1986) (quoting Barnes, 463 U.S. at 751-52, 103 S.Ct. 3308). 

“Generally, only when ignored issues are clearly stronger 

than those presented, will the presumption of effective 

assistance of counsel be overcome.” Gray v. Greer, 800 F.2d 

644, 646 (7th Cir. 1986). 

Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). 

 The state trial court addressed Petitioner’s claim about appellate 

counsel during the post-conviction proceedings and concluded that 

Petitioner was not prejudiced by his appellate attorney’s actions. This 

Court agrees. 

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Petitioner’s underlying claims about trial counsel lack merit for the 

reasons given in the discussion above. It is a well-established principle 

that “appellate counsel cannot be ineffective for a failure to raise an issue 

that lacks merit.” Tackett v. Trierweiler, 956 F.3d 358, 376 (6th Cir. 2020) 

(quoting Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). 

Accordingly, appellate counsel’s performance was not deficient or 

prejudicial. 

Further, the state trial court’s rejection of Petitioner’s claim about 

appellate counsel was not contrary to, or an unreasonable application of, 

Strickland or Robbins. As such, Petitioner has no right to relief on his 

claim about appellate counsel. 

IV. Conclusion 

 For the reasons set forth above, Petitioner’s claims about trial 

counsel lack merit, and the state trial court’s rejection of his claim about 

appellate counsel was objectively reasonable. 

Accordingly, IT IS ORDERED that the amended petition for writ 

of habeas corpus is DENIED.

IT IS FURTHER ORDERED that the Court declines to issue a 

certificate of appealability because reasonable jurists could not disagree 

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with the Court’s resolution of Petitioner’s claims, nor conclude that the 

issues deserve encouragement to proceed further. Miller-El v. Cockrell, 

537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 

(2000)). 

IT IS FURTHER ORDERED that Petitioner may not proceed in 

forma pauperis on appeal if he appeals this decision. He may apply to the 

Court of Appeals for leave to proceed in forma pauperis and for a 

certificate of appealability. 

 IT IS SO ORDERED. 

Dated: December 16, 2021 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon 

counsel of record and any unrepresented parties via the Court s ECF System to their 

respective email or First-Class U.S. mail addresses disclosed on the Notice of 

Electronic Filing on December 16, 2021. 

s/William Barkholz 

WILLIAM BARKHOLZ 

Case Manager 

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