UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RICHARD MILLER,

Petitioner, Case No. 2:15-cv-10166

Hon. Arthur J. Tarnow

v.

RANDY HAAS,

Respondent.

______________________________________/

OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF

HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF

APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

Richard Miller, (“Petitioner”), incarcerated at the Cotton Correctional Facility in

Jackson, Michigan, has filed a petition for writ of habeas corpus under 28 U.S.C. § 1651(a),

the “All Writs Act.” The petition challenges his March 5, 2012, Wayne Circuit Court

conviction of second-degree murder. MICH. COMP. LAWS § 750.317. Petitioner claims that

his rights under the Sixth Amendment were violated when he was not provided with counsel

at his initial arraignment on the warrant in the state district court. The petition for writ of

habeas corpus will be summarily denied.

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I. Discussion

Petitioner alleges that he was not represented by counsel at his June 5, 2011,

arraignment conducted via video conference from jail. At the arraignment Petitioner was

informed that he was being charged with open murder to which he stood mute. Petitioner

fails to state a claim upon which habeas relief can be granted. Federal courts are

authorized to dismiss any habeas petition that appears legally insufficient on its face.

McFarland v. Scott, 512 U.S. 849, 856 (1994). A federal district court is authorized to

summarily dismiss a habeas corpus petition if it plainly appears from the face of the petition

or the exhibits that are attached to it, that the petitioner is not entitled to federal habeas

relief. See Carson v. Burke, 178 F. 3d 434, 436 (6th Cir. 1999); Rules Governing § 2254

Cases, Rule 4, 28 U.S.C. foll. § 2254.

“It is beyond dispute that ‘[t]he Sixth Amendment safeguards to an accused who

faces incarceration the right to counsel at all critical stages of the criminal process.’”

Marshall v. Rodgers, ––– U.S. ––––, ––––, 133 S.Ct. 1446, 1449, 185 L.Ed.2d 540 (2013)

(per curiam) (quoting Iowa v. Tovar, 541 U.S. 77, 80–81, 124 S.Ct. 1379, 158 L.Ed.2d 209

(2004)). The right to counsel generally applies to “the first appearance before a judicial

officer at which a defendant is told of the formal accusation against him and restrictions are

imposed on his liberty.” Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191, 194 (2008).

Critical stages include those in which: (1) available defenses may be irretrievably

lost, if not then and there asserted, (2) rights may preserved or lost, (3) counsel's

assistance is necessary to mount a meaningful defense, (4) potential substantial prejudice

may result to the defendant's case without counsel’s assistance, or (5) the proceeding

holds significant consequences for the accused. Van v. Jones, 475 F.3d 292, 312 (6th Cir.

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Mich. 2007)

None of these factors apply to preliminary arraignments on the warrant under

Michigan law. See Lundberg v. Buchkoe, 389 F. 2d 154, 158 (6th Cir. 1968); c.f. Hamilton

v. State of Ala., 368 U.S. 52, 54 (1961) (arraignment under Alabama law is critical stage

in a criminal proceeding because available defenses may be as irretrievably lost, if not then

and there asserted). Here, there is no allegation that Petitioner made an incriminating

statement at the arraignment on the warrant, entered a plea of guilty, or lost or waived any

defense. Id., See also Doyle v. Scutt, 347 F. Supp. 2d 474, 481 (E.D. Mich. 2004).

Petitioner simply stood mute to the charges. He was appointed counsel for the next

proceeding, the preliminary examination, that occurred a month after the initial arraignment.

Therefore, he is not entitled to habeas relief on this claim. Id. 

II. Certificate of Appealability

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,

483-84 (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).

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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. Dell v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2002). The Court

will also deny Petitioner leave to appeal in forma pauperis, because the appeal would be

frivolous.

III. Order

Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of Habeas

Corpus is SUMMARILY DISMISSED.

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.

S/Arthur J. Tarnow 

Arthur J. Tarnow

Senior United States District Judge

Dated: February 3, 2015

I hereby certify that a copy of the foregoing document was served upon parties and/or

counsel of record on February 3, 2015, by electronic and/or ordinary mail.

S/Catherine A. Pickles 

Judicial Assistant

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