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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAURENCIO L. RODRIGUEZ,

Petitioner,

v. CASE NO. 15-cv-11155

HON. GEORGE CARAM STEEH

ERICA HUSS,

Respondent.

__________________________/

OPINION AND ORDER DENYING THE AMENDED PETITION,

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,

AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

I. Introduction

Petitioner Laurencio L. Rodriguez is a state prisoner in custody of the 

Michigan Department of Corrections. In 2015, he filed a pro se habeas 

corpus petition challenging his Michigan conviction and sentence of 450 to 

840 months (371⁄2 to 70 years) for second-degree murder, Mich. Comp. 

Laws § 750.317. See ECF No. 1. Although petitioner’s conviction was

affirmed on direct appeal, he requested a stay of his federal case so that he 

could pursue additional post-conviction remedies in state court. See ECF 

No. 3. 

The Court granted petitioner’s motion for a stay, see ECF No. 6, and 

after petitioner unsuccessfully concluded state collateral proceedings, he 

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returned to federal court with a motion to re-open his federal case, see ECF 

No. 11, and a pro se amended petition, see ECF No. 11-1. 

The amended petition raises the three claims that petitioner

presented to the state courts on direct review and the three claims that he 

raised in the State’s appellate courts on state collateral review. Those six 

claims allege that: (I) the trial court erred in denying petitioner’s motion for 

a change of venue; (II) petitioner was denied his right to be present during 

a conference on juror questionnaires; (III) petitioner was denied effective 

assistance when defense counsel (A) failed to use all his peremptory 

challenges to excuse certain jurors and (B) failed to object to petitioner’s 

absence from a conference on juror questionnaires; (IV) appellate counsel 

provided ineffective assistance when he failed to raise meritorious issues 

about trial counsel on direct appeal; (V) the State failed to prove the 

elements of second-degree murder beyond a reasonable doubt; and (VI) 

prosecutorial misconduct denied petitioner his right to a fair trial. See Am. 

Pet. at pp. 4-9 (ECF No. 11-1, PageID.144-149).

The Court granted petitioner’s motion to re-open his case, directed 

the Clerk of Court to serve the amended petition on the State, and ordered 

the State to file a response to the amended petition. See ECF No. 13. 

Respondent Erica Huss, through the Michigan Attorney General, then filed 

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an answer in opposition to the petition. See ECF No. 21. She urges the 

Court to deny the amended petition on grounds that habeas claims II, IV, V, 

and VI are procedurally defaulted or meritless and the state court’s decision 

on claims I through III did not involve an unreasonable application of 

Supreme Court precedent. See id. at pp. i-iii and 75, PageID.2352-54, 

2429. 

Having reviewed the pleadings and the state-court record, the Court 

agrees that petitioner is not entitled to the writ of habeas corpus. 

Accordingly, the Court will deny the amended petition and a certificate of 

appealability, but allow petitioner to proceed in forma pauperis if he appeals 

this decision. 

II. Background

Petitioner was charged with open murder: first-degree, premeditated 

murder and second-degree murder. He was tried before a jury in 

Shiawassee County Circuit Court. The Michigan Court of Appeals briefly 

summarized the facts as follows: 

Defendant’s conviction arose from the July 2000 death of Rachel 

Scott, who was last seen alive on July 6, 2000. The victim’s badly 

decomposed body was discovered on July 20, 2000, under a pile 

of brush in a wooded area. The manner or cause of death could 

not be determined. Although defendant was considered a 

suspect, the case remained unsolved for several years. In 2009, 

a witness came forward and implicated defendant in the victim’s 

death. Physical evidence corroborated the witness’s claim that 

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defendant had placed the victim’s body in the trunk of his car. A 

prison inmate also testified that defendant made statements 

implicating himself in the victim’s death.

People v. Rodriguez, No. 307317, 2013 WL 3766591, at *1 (Mich. Ct. App. 

July 18, 2013) (unpublished). Petitioner’s defense was that prosecution 

witness Jeremy Seger (“Seger”) killed the victim, that he merely helped 

Seger move the body after the murder, and that Seger lied about 

petitioner’s involvement in the crime.

On September 28, 2011, the jury found petitioner guilty of seconddegree murder, see 9/28/11 Trial Tr. at p. 1409 (ECF No. 20-14, 

PageID.1833), and on November 4, 2011, the trial court sentenced 

petitioner to prison for 450 to 840 months with 207 days credit for time 

served. See 11/4/11 Sentence Hr’g Tr. at p. 42 (ECF No. 20-15, 

PageID.1880). 

In an appeal of right, petitioner raised the following claim through 

counsel:

Extensive, highly prejudicial pretrial publicity created a 

presumption of prejudice that denied defendant his right to a fair 

trial by a panel of impartial jurors. The trial court reversibly erred 

in (1) holding part of [the] jury selection outside defendant’s 

presence and (2) in denying defendant a change of venue. Also, 

counsel’s failure to exhaust his peremptory challenges on jurors 

who could not be impartial, denied defendant effective 

assistance of counsel. US CONST, AMENDS VI, XIV.

Defendant-Appellant’s Brief on Appeal at i (ECF No. 20-16, PageID.1930). 

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The Michigan Court of Appeals rejected all three parts of this claim 

and affirmed petitioner’s conviction in a per curiam opinion. See

Rodriguez, 2013 WL 3766591. Petitioner then applied for leave to appeal 

in the Michigan Supreme Court, which denied petitioner’s application on 

December 23, 2014, because it was not persuaded to review the question 

presented to the court. See People v. Rodriguez, 495 Mich. 915; 840 

N.W.2d 370 (2013).

On March 25, 2015, petitioner filed a motion for relief from judgment 

in the state trial court. See Shiawassee County Register of Actions (ECF 

No. 20-1, PageID.280). The motion challenged (1) the sufficiency of the 

evidence supporting petitioner’s conviction, (2) trial counsel’s performance,

and (3) the prosecutor’s conduct. See Mot. for Relief from J. (ECF No. 20-

18, PageID.2153). 

On March 26, 2015, while the post-conviction motion remained 

pending in the state trial court, petitioner filed his initial habeas corpus 

petition and a motion to stay the proceedings and hold his petition in 

abeyance. The grounds for relief in the initial habeas petition were: (1) 

petitioner was innocent of the crime for which he was convicted, (2) his 

court-appointed trial attorney provided ineffective assistance, and (3) the 

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State failed to establish the cause and manner of the victim’s death. See

Pet. at pp. 6-9 (ECF No. 1, PageID.5-8).

In his motion for a stay, petitioner explained that he simultaneously 

filed a motion for relief from judgment in state court. See Mot. to Stay at p. 

5 (ECF No. 3, PageID.34). He asked the Court to stay the federal 

proceeding and to hold his habeas petition in abeyance while he exhausted 

state remedies. See id. at pp. 4-5, PageID.35-36. On April 21, 2015, the 

Court granted petitioner’s motion for a stay and ordered petitioner to file a 

motion to reopen this case and an amended habeas petition within ninety 

days of exhausting state remedies if he was unsuccessful in state court and 

wished to re-open this case. The Court also closed this case for 

administrative purposes. See Order (ECF No. 6). 

Meanwhile, on April 10, 2015, the state trial court denied petitioner's 

motion for relief from judgment in a reasoned order. The court stated that 

petitioner could have raised his three claims in the Court of Appeals and 

that he had failed to demonstrate “good cause” under Michigan Court Rule 

6.508(D)(3) for failing to raise the claims on appeal. See People v. 

Rodriguez, No. 11-1979-FC (Shiawassee Cty. Cir. Ct. Apr. 10, 2015); (ECF 

No. 20-19, PageID.2161-62). The court also stated that to the extent 

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petitioner’s claim about counsel was decided against him on appeal, the 

court would deny the motion on that basis as well. See id.

In a pro se application for leave to appeal the trial court’s order, 

petitioner alleged that: (1) appellate counsel provided ineffective 

assistance when he failed to raise meritorious issues about trial counsel on 

direct appeal; (2) the State failed to prove the elements of second-degree 

murder beyond a reasonable doubt; and (3) prosecutorial misconduct 

deprived him of his right to a fair trial. See Delayed Application for Leave to 

Appeal (ECF No. 20-20, PageID.2164-2215). The Michigan Court of 

Appeals denied leave to appeal because petitioner had “failed to establish 

that the trial court erred in denying his motion for relief from judgment.”

People v. Rodriguez, No. 329410 (Mich. Ct. App. Dec. 21, 2015) (ECF No. 

20-20, PageID.2163). 

Petitioner raised the same issues in the Michigan Supreme Court. 

See Pro Per Application for Leave to Appeal (ECF No. 20-21, 

PageID.2217-2259). On November 30, 2016, the Michigan Supreme Court 

denied leave to appeal because petitioner “failed to meet the burden of 

establishing entitlement to relief under [Michigan Court Rule] 6.508(D).” 

People v. Rodriguez, 500 Mich. 895; 887 N.W.2d 187 (2016). 

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On February 21, 2017, petitioner moved for an extension to file an 

amended habeas corpus petition because prison officials misplaced his 

legal work and his legal writer lost most of the files stored on his computer. 

See Mot. (ECF No. 8, PageID.47-52). On July 14, 2017, the Court granted 

petitioner’s request and gave him an additional ninety days to file a motion 

to re-open this case and an amended habeas corpus petition. See Order 

(ECF No. 10). 

On October 2, 2017, petitioner filed his motion to re-open this case

(ECF No. 11) and his amended petition for the writ of habeas corpus (ECF 

No. 11-1), which raises the following issues:

I. Did the trial court err in denying petitioner’s motion for a 

change of venue?

II. Was petitioner denied his right to be present during a 

conference on juror questionnaires? 

III. Was petitioner denied effective assistance of counsel when 

defense counsel (A) failed to use all his peremptory 

challenges to excuse certain jurors and (B) failed to object 

to petitioner’s absence from the conference on juror 

questionnaires?

IV. Was appellate counsel providing ineffective assistance of 

counsel when he failed to raise meritorious issues on direct 

appeal related to the ineffective assistance of trial counsel, 

which deprived petitioner of an evidentiary hearing to 

perfect crucial issues for his direct appeal, and is this 

deprivation a violation of due process and does it entitle 

petitioner to re-instatement of that appeal and an 

evidentiary hearing?

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V. Did the State fail to prove beyond a reasonable doubt the 

elements of second-degree murder and must petitioner’s 

conviction be vacated?

VI. Did prosecutorial misconduct deny petitioner his due 

process right to a fair trial?

Brief in Support of Pet. (ECF No. 11-1, PageID.154-55).

1

The Court granted petitioner’s motion to re-open this case and 

ordered the Clerk of Court to serve the amended petition on the State. See

Order (ECF No. 13). On April 8, 2019, respondent filed her answer to the 

amended petition (ECF No. 21), and on September 16, 2019, petitioner file 

a reply to respondent’s answer to the petition (ECF No. 25). 

III. Standard of Review

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

requires prisoners who challenge “a matter ‘adjudicated on the merits in 

State court’ to show that the relevant state court ‘decision’ (1) ‘was contrary 

to, or involved an unreasonable application of, clearly established Federal 

law,’ or (2) ‘was based on an unreasonable determination of the facts in 

light of the evidence presented in the State court proceeding.’ ” Wilson v. 

1

 Petitioner relies on his state appellate brief on direct appeal to support habeas claims I 

through III because he no longer possesses the briefs that he filed on direct appeal. 

See Brief in Support of Pet. for Writ of Habeas Corpus (ECF No. 11-1, PageID.165-66). 

Accordingly, the Court is treating petitioner’s appellate brief on direct appeal as his 

habeas brief for purposes of claims I through III. 

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Sellers, 138 S. Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 2254(d)). The 

Supreme Court has explained that

a state court decision is “contrary to [the Supreme Court’s] clearly 

established precedent if the state court applies a rule that 

contradicts the governing law set forth in [Supreme Court] cases” 

or “if the state court confronts a set of facts that are materially 

indistinguishable from a decision of [the Supreme] Court and 

nevertheless arrives at a result different from [Supreme Court] 

precedent.” 

Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor,

529 U.S. 362, 405-406 (2000)) (alterations added). 

“Under the ‘unreasonable application’ clause, a federal habeas 

court may grant the writ if the state court identifies the correct 

governing legal principle from [the Supreme] Court’s decisions 

but unreasonably applies that principle to the facts of the 

prisoner’s case.” Id., at 413, 120 S.Ct. 1495. The “unreasonable 

application” clause requires the state court decision to be more 

than incorrect or erroneous. Id., at 410, 412, 120 S.Ct. 1495. 

The state court’s application of clearly established law must be 

objectively unreasonable. Id., at 409, 120 S.Ct. 1495. 

Id. at 75. 

“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) (internal 

and end citations omitted). “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. 

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Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 

U.S. 652, 664 (2004)). Thus, “[o]nly an ‘objectively unreasonable’ mistake, 

. . . , one ‘so lacking in justification that there was an error well understood 

and comprehended in existing law beyond any possibility for fairminded 

disagreement,’ slips through the needle’s eye of § 2254.” Saulsberry v. 

Lee, 937 F.3d 644, 648 (6th Cir.) (quoting Richter, 562 U.S. at 103), cert. 

denied, 140 S. Ct. 445 (2019). “That’s a ‘high bar’ to relief, which ‘is 

intentionally difficult to meet.’ ” Kendrick v. Parris, 989 F.3d 459, 469 (6th 

Cir. 2021) (quoting Woods v. Donald, 575 U.S. 312, 316 (2015)), petition

for cert. docketed, No. 21-107 (U.S. July 27, 2021).

IV. Discussion

A. The Trial Court’s Denial of Petitioner’s Motion for a Change of Venue

Petitioner alleges first that the trial court erred when it denied his

motion for a change of venue. See Am. Pet. and Brief in Support of Pet. 

(ECF No. 11-1, PageID.144, 174). Petitioner asserts that his case 

garnered extensive publicity in Shiawassee County, beginning in the year 

2000, and that the case was the subject of numerous news articles,

Internet postings, and public discussions. 

According to petitioner, the pretrial publicity was pervasive and 

inflammatory. See Defendant-Appellant’s Brief on Appeal at p. 21 (ECF 

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No. 20-16, PageID.1955). One article allegedly described petitioner’s

criminal record, and another article allegedly quoted his mother as saying 

that she believed petitioner was guilty. See id. at p. 11, PageID.1945. 

Petitioner argues that the adverse publicity created a presumption of 

prejudice, and because the presumption of prejudice was not rebutted, he 

was denied his due process right to trial by an impartial jury. Id. at p. 20, 

PageID.1954. 

The Michigan Court of Appeals adjudicated this claim on the merits 

on direct review. The Court of Appeals acknowledged that petitioner’s case 

was the subject of local media attention, but the court stated that the media 

accounts were not so numerous, sensational, and inflammatory as to 

warrant a finding that the entire jury pool was prejudiced against petitioner. 

The Court of Appeals also noted that 

a jury satisfactory to both parties was seated. Of the 12 jurors 

who decided the case, six had not heard anything about the 

case, and the remaining jurors had seen a few articles, but knew 

little about the case and agreed that they could disregard what 

they had heard and decide the case based on the evidence.

Rodriguez, 2013 WL 3766591, at *1. The Court of Appeals concluded that 

the trial court’s denial of petitioner’s motion for a change of venue was 

within the range of reasonable and principled outcomes and that the trial 

court did not abuse its discretion by denying the motion. Id. 

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1. Clearly Established Federal Law 

The Sixth Amendment to the United States Constitution guarantees 

the accused in a criminal prosecution “the right to a . . . trial, by an impartial 

jury[.]” U.S. CONST. amend. VI. This right is 

“applicable to the States through the Due Process Clause of the Fourteenth 

Amendment.” Parker v. Gladden, 385 U.S. 363, 364 (1966). 

“The failure to accord an accused a fair hearing violates even the 

minimal standards of due process,” Irvin v. Dowd, 366 U.S. 717, 722 

(1961), and “adverse pretrial publicity can create such a presumption of 

prejudice in a community that the jurors’ claims that they can be impartial 

should not be believed.” Patton v. Yount, 467 U.S. 1025, 1031 (1984)

(explaining the holding in Irwin). Nevertheless, 

[t]he category of cases where prejudice has been presumed in 

the face of juror attestation to the contrary is extremely narrow. 

Indeed, the few cases in which the [Supreme] Court has 

presumed prejudice can only be termed extraordinary, see

generally Murphy v. Florida, 421 U.S. 794, 798–99, 95 S. Ct. 

2031, 44 L.Ed.2d 589 (1975), and it is well-settled that pretrial 

publicity itself—“even pervasive, adverse publicity—does not 

inevitably lead to an unfair trial,” Nebraska Press Ass’n v.

Stuart, 427 U.S. 539, 554, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). 

As the Court observed in Murphy, “indicia of impartiality” on the 

part of a jury have thus far been disregarded only in those cases 

“where the general atmosphere in the community or courtroom 

is sufficiently inflammatory.” 421 U.S. at 802, 95 S. Ct. 2031. 

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DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998); see also Foley v. 

Parker, 488 F.3d 377, 387 (6th Cir. 2007) (“Presumptive prejudice from 

pretrial publicity occurs where an inflammatory, circus-like atmosphere 

pervades both the courthouse and the surrounding community.”). Even in 

cases of presumptive prejudice, “there can be no constitutional infirmity if 

the defendant actually received a trial by an impartial jury.” DeLisle, 161 

F.3d at 382. 

When the partiality of an individual juror is at issue, the question “is 

plainly one of historical fact: did a juror swear that he could set aside any 

opinion he might hold and decide the case on the evidence, and should the 

juror’s protestation of impartiality have been believed.” Patton, 467 U.S. at 

1036. “The trial court’s resolution of these questions is entitled to a 

presumption of correctness because (1) “the determination has been made 

only an often extended voir dire proceeding designed specifically to identify 

biased veniremen” and (2) “the determination is essential one of credibility, 

and therefore largely one of demeanor. . . . ” Id.

This reliance on the trial court’s judgment “makes good sense” 

because “[t]he judge of that court sits in the locale where the publicity is 

said to have had its effect and brings to his evaluation of any such claim his 

own perception of the depth and extent of news stories that might influence 

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a juror.” Mu’Min v. Virginia, 500 U.S. 415, 427 (1991); see also Skilling v.

United States, 561 U.S. 358, 386 (2010) (“Reviewing courts are properly 

resistant to second-guessing the trial judge’s estimation of a juror’s 

impartiality, for that judge’s appraisal is ordinarily influenced by a host of 

factors impossible to capture fully in the record—among them, the 

prospective juror’s inflection, sincerity, demeanor, candor, body language, 

and apprehension of duty.”). “A federal court can overturn a trial judge’s 

finding of juror impartiality only where manifest error is shown. Trimble v.

Bobby, 804 F.3d 767, 778 (6th Cir. 2015) (citing Patton, 467 U.S. at 1031). 

2. Application

The state trial court made a thorough attempt to select an impartial 

jury in petitioner’s case. The court held a hearing on petitioner’s motion for 

a change of venue and then took the motion under advisement because 

the court wanted to ascertain whether it was possible to seat a jury that 

could fairly determine the issues, including petitioner’s guilt or innocence. 

The trial court proposed a procedure that would include: (1) drafting a 

written questionnaire for the prospective jurors to complete to determine 

whether any jurors had a predetermined view as to what the verdict ought 

to be; (2) voir dire of jurors individually, if necessary, to explore what a 

person might know about the case; and (3) voir dire in the courtroom. The 

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court invited the parties to submit questions to be included on the juror 

questionnaires. See 8/4/11 Mot. Hr’g Tr. at pp. 16-23 (ECF No. 20-3, 

PageID.387-394). At a subsequent settlement conference, petitioner 

approved of this procedure. See 9/7/11 Settlement Conference at p. 14 

(ECF No. 20-4, PageID.409). 

The jury selection that followed occurred over the course of three 

days. During the first and second days, the court brought in groups of 

prospective jurors, introduced them to the case, and asked them to 

complete questionnaires regarding any information that they might have 

about the case. See 9/13/11 Trial Tr. (ECF No. 20-6) (jury panels 5 and 6 

sworn and given questionnaires); 9/14/11 Trial Tr. (ECF No. 20-7) (jury 

panels 1 and 2 sworn and given questionnaires). 

After all the prospective jurors were sent home on the second day, 

the attorneys, the court, and the court’s law clerk reviewed the completed 

questionnaires. They agreed by consensus that nineteen individuals 

should be rejected due to hardship, medical issues, or knowledge and state 

of mind regarding the case. See 9/14/11 Trial Tr. at p. 71 (ECF No. 20-7, 

PageID.495). 

On the third day, the remaining individuals returned to the courtroom, 

and the court conducted voir dire, which included individual questioning of 

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a few prospective jurors outside the presence of the other jurors. The court 

excused some individuals for cause, and the attorneys used peremptory 

challenges to excuse other individuals. 

Before the attorneys used all their peremptory challenges, they 

approved of fourteen jurors who were seated in the jury box. The trial court 

then asked those fourteen jurors whether there was any reason why they 

could not be fair to both parties and to apply the law to the facts. When 

none of the jurors responded, the court announced that they had a jury. 

See 9/15/11 Trial Tr. at pp. 266-67 (ECF No. 20-8, PageID.690-91). The 

trial court subsequently denied petitioner’s motion for a change of venue

because “the process worked” and there was no need for a change of 

venue. See id. at pp. 272-73, PageID.696-97. 

Petitioner concedes that eight of the twelve jurors who deliberated his 

case did not say they were exposed to media coverage of his case. See

Defendant-Appellant’s Brief on Appeal at pp. 19-20 (ECF No. 20-16, 

PageID.1953-54) (listing (Gloria Nemets, Pamela Powelke, Carol Vitu, 

Marcia Ustishen, Zachary Nicholson, Gail Teeples, Virginia Thomas, and 

Kathleen Warfle as the eight jurors who “did not expressly state that they 

were exposed to media coverage of the case”). Further, the record does 

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not support the contention that overwhelmingly negative media coverage 

affected the other four jurors. 

Lynea Nichols said that she saw the headline to a news article about 

the case on the previous day, but that she did not read the article and that 

the article would not influence her or affect her ability to be a fair juror. See

9/15/11 Trial Tr. at pp. 117-18 (ECF No. 20-8, PageID.541-42). Renee

Jacobi apparently indicated on her questionnaire that she had heard or 

read about the case, but she also indicated that her knowledge of the case

would not affect her ability to decide the case based on the evidence at 

trial, as opposed to what she may have heard or read. See id. at p. 159, 

PageID.583.

Diane Moore had read a small newspaper article about the case 

during the week before trial. That was the first time she heard about the 

case, and she said that she could put the article out of her mind and focus 

on the facts in petitioner’s case if she were seated as a juror. See id. at pp. 

230-31, PageID.654-55. She also said that there was no reason why she 

could not apply the law to the facts and that she could withstand the rigors 

of being a juror. See id. at pp. 233-34, PageID.657-58. Casey Knowlton

also had heard or read about the case, according to her questionnaire, but 

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she, too, said it would not affect her ability to decide the case based on the 

evidence at trial. See id. at p. 159, PageID.583. 

What is more, before the trial court concluded voir dire, it asked the 

seated jurors whether anyone was unable to give both parties a fair trial 

and decide the case by applying the law, as given to them by court, to the 

facts. No one said that he or she could not be fair or could not apply the 

law to the facts. See id. at pp. 259-60, PageID. 683-84.

Petitioner has failed to show that a presumption of prejudice 

pervaded his trial due to pretrial publicity or that the individual jurors who 

decided his case were actually prejudiced and unable to render a fair 

verdict based on the evidence at trial. In addition, the state courts’ findings

of juror impartiality are entitled to deference, and Petitioner has not 

demonstrated a manifest error in those findings of impartiality. Because 

he was not denied a fair trial by an impartial jury, he is not entitled to relief 

on his first claim. 

B. Petitioner’s Absence from a Conference on Juror Questionnaires

Petitioner alleges next that he was denied his right to be present 

during a conference on the questionnaires that the prospective jurors were 

asked to complete before voir dire. See Am. Pet. and Brief in Support

(ECF No. 11-1, PageID.145, 175). The questionnaires inquired about the 

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prospective jurors’ knowledge of the case and the people involved with the 

case. After the jurors completed the questionnaires, the attorneys, the trial 

court, and the trial court’s law clerk reviewed the questionnaires and 

eliminated some individuals. For some unknown reason, petitioner was not 

present during that process. 

Petitioner claims that he had a right to give advice, make 

suggestions, or reject his attorney’s decisions about the questionnaires and 

that he was unable to exercise those rights because he was absent from 

the conference on the juror questionnaires. Petitioner also claims that he 

did not waive the right to be present and that the error was not harmless. 

See Defendant-Appellant’s Brief on Appeal at pp. 12-16 (ECF No. 20-16, 

PageID.1946-1950). 

The Michigan Court of Appeals reviewed petitioner’s claim for “plain 

error” affecting his substantial rights because he did not preserve the issue 

for appellate review by objecting in the trial court. See Rodriguez, 2013 WL 

3766591, at *2. Respondent, therefore, argues that petitioner procedurally 

defaulted his claim. 

1. Procedural Default 

In the habeas context, a procedural default is “a critical failure to 

comply with state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997). 

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Pursuant to the related doctrine, “a federal court will not review the merits 

of [a state prisoner’s] claims, including constitutional claims, that a state 

court declined to hear because the prisoner failed to abide by a state 

procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). In this Circuit, 

“[a] habeas petitioner procedurally defaults a claim when ‘(1) [he] fails to 

comply with a state procedural rule; (2) the state courts enforce the rule; 

[and] (3) the state procedural rule is an adequate and independent state 

ground for denying review of a federal constitutional claim.’ ” Theriot v. 

Vashaw, 982 F.3d 999, 1003 (6th Cir. 2020) (quoting Wheeler v. Simpson, 

852 F.3d 509, 514 (6th Cir. 2017) (quoting Guilmette v. Howes, 624 F.3d 

286, 290 (6th Cir. 2010) (en banc)), petition for cert. docketed, No. 20-8063 

(U.S. May 18, 2021). 

The relevant state procedural rule here is “the general and 

longstanding rule in Michigan that ‘issues that are not properly raised 

before a trial court cannot be raised on appeal absent compelling or 

extraordinary circumstances.’ ” People v. Cain, 498 Mich. 108, 114; 869 

N.W.2d 829, 832 (2015) (quoting People v. Grant, 445 Mich. 535, 546; 520 

N.W.2d 123, 128 (1994)). “[R]equiring a contemporaneous objection 

provides the trial court ‘an opportunity to correct the error, which could 

thereby obviate the necessity of further legal proceedings and would be by 

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far the best time to address a defendant’s constitutional and 

nonconstitutional rights.’ ” People v. Carines, 460 Mich. 750, 764–65; 597 

N.W.2d 130, 139 (1999) (quoting Grant, 445 Mich. at 551; 520 N.W.2d at 

130). 

Petitioner violated this issue-preservation rule by not objecting in the 

trial court to his absence from the conference on the juror questionnaires. 

In fact, after the trial court and defense counsel explained what happened 

at the conference, he had no questions or objections to the procedure. See

9/14/11 Trial Tr. at pp. 72-74 (ECF No. 20-7, PageID.496-98). Thus, the 

first procedural default factor is satisfied.

The Michigan Court of Appeals reviewed petitioner’s claim for “plain 

error” due to petitioner’s failure to preserve his claim for appeal by objecting 

in the trial court. A state court’s plain-error review is considered such an 

impediment to merits review as to be enforcement of a procedural rule. 

Gibbs v. Huss, __ F.3d __, __, No. 20-1973, 2021 WL 3855663, at *5 (6th 

Cir. Aug. 30, 2021) (citing Williams v. Burt, 949 F.3d 966, 973 (6th Cir.), 

cert. denied, __ U.S. __, 141 S. Ct. 276, 208 L.Ed.2d 38 (2020)); accord

Theriot, 982 F.3d at 1004 (stating that “a state appellate court’s review for 

plain error is enforcement of a procedural rule”); Hinkle v. Randle, 271 F.3d 

239, 244 (6th Cir. 2001) (“[W]e view a state appellate court’s review for 

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plain error as the enforcement of a procedural default.”). The second 

procedural default factor is satisfied.

The third procedural default factor requires a determination of 

whether the state procedural rule is an adequate and independent state 

ground for denying review of a federal constitutional claim. The Sixth 

Circuit Court of Appeals has determined that “Michigan’s 

contemporaneous-objection rule ‘constitutes an adequate and independent 

state ground for foreclosing federal review.’ ” Theriot, 982 F.3d at 1004

(citing Taylor v. McKee, 649 F.3d 446, 451 (6th Cir. 2011)). Thus, the third 

procedural-default factor is satisfied. 

2. Overcoming the Procedural Default

“A state prisoner may overcome the prohibition on reviewing 

procedurally defaulted claims if he can show ‘cause’ to excuse his failure to 

comply with the state procedural rule and ‘actual prejudice resulting from 

the alleged constitutional violation.’ ” Davila v. Davis, 137 S. Ct. 2058, 

2064-2065 (2017) (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). 

“[T]he existence of cause for a procedural default must ordinarily turn on 

whether the prisoner can show that some objective factor external to the 

defense impeded [his] efforts to comply with the State’s procedural rule.” 

Murray v. Carrier, 477 U.S. 478, 488 (1986). A prisoner can establish an 

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objective impediment to compliance with a procedural rule by showing (i) 

the factual or legal basis for a claim was not reasonably available, (ii) some 

interference by officials, or (iii) ineffective assistance of counsel. Id. 

a. Trial Counsel as “Cause”

Petitioner has raised an independent claim which alleges that trial 

counsel was ineffective for failing to object to his absence from the 

conference on juror questionnaires. See Am. Pet., Claim III.B. (ECF No. 

11-1, PageID.146), and Defendant-Appellant’s Brief on Appeal at p. 22

(ECF No. 20-16, PageID.1956). As part of that argument, petitioner

alleges that, if necessary to reach the issue of his exclusion from a portion 

of the jury selection, counsel was constitutionally ineffective in failing to 

object. See Defendant-Appellant’s Brief on Appeal at p. 23 (ECF No. 20-

16, PageID.1957). 

“Ineffective assistance of counsel . . . is cause for a procedural 

default.” Carrier, 477 U.S. at 488; see also Hodges v. Colson, 727 F.3d 

517, 530 (6th Cir. 2013) (“Ineffective assistance of counsel can constitute 

cause for a procedural default.”). “Not just any deficiency in counsel’s 

performance will do, however; the assistance must have been so 

ineffective as to violate the Federal Constitution.” Edwards v. Carpenter, 

529 U.S. 446, 451 (2000); see also Davila, 137 S. Ct. at 2062 (“[A]ttorney 

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error does not qualify as ‘cause’ to excuse a procedural default unless the 

error amounted to constitutionally ineffective assistance of counsel.”),

To prevail on his claim about trial counsel, petitioner must show that 

trial “counsel’s performance was deficient” and “that the deficient 

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 

668, 687 (1984). The deficient-performance prong “requires showing that 

counsel made errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. 

Petitioner “must show that counsel’s representation fell below an objective 

standard of reasonableness.” Id. at 688.

The “prejudice” prong “requires showing that counsel’s errors were so 

serious as to deprive the defendant of a fair trial, a trial whose result is 

reliable.” Id. at 687. Petitioner must demonstrate “a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694. 

Petitioner’s trial attorney could have concluded that petitioner was not 

needed at the discussion on the juror questionnaires and that his presence 

might even be counterproductive. Defense counsel also could have 

concluded that petitioner’s right to a fair trial and to defend against the 

charge would not “be thwarted by his absence.” Kentucky v. Stincer, 482 

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U.S. 730, 745 (1987) (quoting Snyder v. Massachusetts, 291 U.S. 97, 108 

(1934)). 

Even if defense counsel was remiss for failing to seek petitioner’s 

presence at the conference or for failing to object to his absence, the 

record indicates that defense counsel explained to petitioner what 

happened at the conference and that petitioner had no objections. See

9/14/11 Trial Tr. at p. 72 (ECF No. 20-7, PageID.496). The trial court 

subsequently asked defense counsel to read the names of the nineteen 

people that the attorneys and the court had eliminated during their 

conference about the questionnaires. 

Defense counsel complied with the court’s request. See id. at 72-74, 

PageID.496-498. Then he asked petitioner once again whether he had any 

objections, and petitioner answered, “No, sir.” Id. at 74, PageID.498. If 

that were not enough, the trial court asked petitioner whether he had any 

questions about any of the excluded jurors or the process that the court 

and the attorneys had used. Petitioner responded, “No, sir.” Id. 

Because petitioner had no objection to the procedure used during the 

conference or to the prospective jurors who were excluded from serving on 

his jury, his absence from the conference was harmless. Further, defense 

counsel’s failure to object to petitioner’s absence from the conference did 

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not amount to ineffective assistance, and petitioner has not shown “cause” 

for his procedural default. 

b. Prejudice; Miscarriage of Justice

The Court need not determine whether the alleged constitutional error 

prejudiced petitioner because he has not established “cause” for his failure 

to comply with state law. See Simpson v. Jones, 238 F.3d 399, 409 (6th 

Cir. 2000) (citing Smith v. Murray, 477 U.S. 527, 533 (1986)). In the 

absence of “cause and prejudice,” a habeas petitioner may pursue 

procedurally defaulted claims if he can “demonstrate that failure to consider 

the claims will result in a fundamental miscarriage of justice.” Coleman v.

Thompson, 501 U.S. 722, 750 (1991). 

“A fundamental miscarriage of justice results from the conviction of 

one who is ‘actually innocent.’ ” Lundgren v. Mitchell, 440 F.3d 754, 764 

(6th Cir. 2006) (citing Carrier, 477 U.S. at 496). “To be credible, [a claim of 

actual innocence] requires [the] 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 v. Delo, 513 U.S. 298, 

324 (1995). 

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Petitioner claims to be innocent, but he has not presented the Court 

with any new and reliable evidence of actual innocence. Therefore, a 

fundamental miscarriage of justice will not result from this Court’s failure to 

adjudicate the substantive merits of petitioner’s claim about his absence 

from the conference on juror questionnaires. Petitioner’s claim is 

procedurally defaulted. 

C. Trial Counsel

Petitioner’s third claim alleges ineffective assistance of trial counsel. 

Petitioner alleges that his trial attorney was ineffective because counsel

failed to (1) use all his peremptory challenges to excuse certain jurors and 

(2) object to petitioner’s absence from the conference on juror 

questionnaires. See Am. Pet. (ECF No. 11-1, PageID.146); DefendantAppellant’s Brief on Appeal at pp. 22-24 (ECF No. 20-16, PageID.1956-

1958). The Michigan Court of Appeals reviewed these claims on the merits 

and concluded that defense counsel was not ineffective.

1. Established Federal Law

To prevail on a claim of ineffective assistance of counsel, petitioner 

must show that counsel’s performance was deficient and that the deficient 

performance prejudiced the defense. Strickland, 466 U.S. at 687. An 

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attorney’s performance is deficient if “counsel’s representation fell below an 

objective standard of reasonableness.” Id. at 688. 

An attorney’s deficient performance is prejudicial if there is “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). 

2. Application of Strickland 

a. Failure to Object to Petitioner’s Absence at the 

Conference on Juror Questionnaires

The Court determined above that defense counsel was not cause for 

petitioner’s failure to object to his absence from the conference on juror 

questionnaires. Petitioner, however, raises an independent claim about his 

trial attorney’s failure to object to his absence from the conference. He 

claims that there was no strategic benefit to not having him present for each 

stage of jury selection. 

Petitioner’s free-standing claim of ineffective assistance of trial 

counsel must meet AEDPA’s standard of review. Hall v. Vasbinder, 563 

F.3d 222, 236-37 (6th Cir. 2009). Moreover, “[t]he standards created 

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by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two 

apply in tandem, review is ‘doubly’ so[.]” Richter, 562 U.S. at 105 (internal 

and end citations omitted). To determine whether trial counsel was 

ineffective, the Court looks to petitioner’s underlying claim that he had a 

right to be present at the conference on juror questionnaires. 

The Supreme Court’s decision in United States v. Gagnon, 470 U.S. 

522 (1985), has some relevance to the question before this Court. In 

Gagnon, the Supreme Court considered the defendants’ claim that they 

had a right to be personally present at an in camera discussion involving 

the trial court, a juror, and defense counsel. The Supreme Court noted that 

“the exclusion of a defendant from a trial proceeding should be considered 

in light of the whole record.” Id. at 526-527 (citing Snyder, 291 U.S. at 

115). The Supreme Court then pointed out that the discussion at issue was 

a short interlude in a complex trial. The Supreme Court concluded that “the 

conference was not the sort of event which every defendant had a right 

personally to attend under the Fifth Amendment.” Id. at 527. 

Petitioner’s case is like Gagnon’s case in that his attorney was present 

at a conference with the trial court on an issue involving a juror, but he was 

absent from the conference. Additionally, like the in camera discussion in 

Gagnon, the conference on juror questionnaires was a short procedure in a 

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long trial, and it was not the sort of event that required his presence to ensure 

a fair trial.

In addition, as pointed out above, when the trial court explained what 

happened at the conference, petitioner stated on the record that he had no 

objection to the process or to the jurors that were excluded during the 

conference. Given this response, it is unlikely that petitioner would have 

gained any benefit from attending the conference.

To conclude, defense counsel’s failure to object to petitioner’s 

absence from the conference on juror questionnaires did not amount to 

deficient performance, and even if it did, the deficient performance did not 

prejudice petitioner. The state appellate court’s rejection of petitioner’s 

claim about trial counsel was objectively reasonable, and petitioner has no 

right to relief on the claim.

b. Failure to Excuse Certain Jurors

Petitioner asserts next that defense counsel was ineffective for failing 

to use all his peremptory challenges to excuse four jurors. According to 

petitioner, the four jurors had been exposed to inflammatory and prejudicial 

media coverage and they ultimately deliberated his case. See DefendantAppellant’s Brief on Appeal (ECF No. 20-16, PageID.1956-58). 

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Defense attorneys have a responsibility to protect their clients’ 

constitutional right to a fair and impartial jury by using voir dire to identify 

and ferret out jurors who may be biased against the defense. Miller v.

Francis, 269 F.3d 609, 615 (6th Cir. 2001). Nevertheless, “[c]ounsel’s 

actions during voir dire are presumed to be matters of trial strategy.” Id. 

To prevail on a claim about defense counsel’s failure to exercise a 

peremptory challenge, a habeas petitioner must show that the juror was 

actually biased against him. Id. 

Jurors need not “be totally ignorant of the facts and issues involved.” 

Irwin, 366 U.S. at 722; accord DeLisle, 161 F.3d at 382 (“[M]ere prior 

knowledge of the existence of the case, or familiarity with the issues 

involved, or even some preexisting opinion as to the merits, does not in and 

of itself raise a presumption of jury taint[.]”); Foley, 488 F.3d at 387

(“Negative media coverage by itself is insufficient to establish actual 

prejudice, and the existence of a juror’s preconceived notion as to the guilt 

or innocence of the defendant, without more, is not sufficient to rebut the 

presumption of impartiality.”) “It is sufficient if the juror can lay aside his 

impression or opinion and render a verdict based on the evidence 

presented in court.” Irwin, 366 U.S. at 723.

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The four jurors that petitioner claims his trial attorney should have 

excused were Lynea Nichols, Renee Jacobi, Diane Moore, and Casey 

Knowlton. See Defendant-Appellant’s Brief on Appeal (ECF No. 20-16, 

PageID.1958). Petitioner states that these jurors may have been biased 

and may have lacked the ability to judge fairly. See id. But that is mere 

speculation.

Furthermore, as pointed out above in the discussion on pretrial 

publicity, Mrs. Nichols stated that she did not read the news article that she 

noticed on the previous day and that it would not influence her or affect her 

ability to be a fair juror. See 9/15/11 Trial Tr. at pp. 117-18 (ECF No. 20-8, 

PageID.541-42). Although she also indicated that she had been a victim of 

domestic violence, she did not think her experience would influence how 

she viewed or decided petitioner’s case. She assured the trial court that 

she could carry out the responsibilities of being a juror and apply the law to 

the facts without regard to her personal experience. See id. at pp. 189-91,

PageID.613-615.

Renee Jacobi wrote on her questionnaire that, although she had 

heard or read about the case, that would not affect her ability to decide the 

case based on the evidence at trial, as opposed to what she may have

heard or read. See id. at p. 159, PageID.583. Diane Moore had read a 

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small newspaper article about the case a week before the trial. But she 

said that was the first time she heard about the case and that she could put 

the article out of her mind and focus on the facts in petitioner’s case if she 

were selected as a juror. See id. at p.231, PageID.655. 

Casey Knowlton also had heard or read about the case, according to 

her questionnaire, but she said that what she had heard or read would not 

affect her ability to decide the case based on the evidence at trial. See id. 

at p. 159, PageID.583. Although she was acquainted with some police 

officers, including a detective who was assigned to petitioner’s case, she 

said that she would accept the testimony of whichever person she found 

more believable, regardless of whether or not the person was a police 

officer. See id. at pp. 167-70, PageID.591-594. 

Based on the record, Nichols, Jacobi, Moore, and Knowlton were not 

affected by the pretrial publicity, and they claimed to be able to decide 

petitioner’s case on the facts presented at trial, without regard to their 

personal experiences or prior knowledge of the case. Therefore, defense 

counsel was not ineffective for failing to use his peremptory challenges to 

exclude the four women, and the state appellate court’s rejection of 

petitioner’s claim was not objectively unreasonable. Petitioner has no right 

to relief on his claim. 

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D. Appellate Counsel 

The fourth habeas corpus claim alleges that petitioner’s appellate 

attorney provided ineffective assistance when he failed to raise meritorious 

issues about trial counsel on direct appeal and failed to move for an 

evidentiary hearing. Petitioner argues that appellate counsel should have 

asserted that trial counsel was ineffective for failing to (1) present a 

defense and investigate material witnesses, (2) permit petitioner to testify 

on his own behalf, (3) appear at a motion hearing and ensure that petitioner 

was present at the hearing, and (4) make crucial objections during trial and 

impeach the prosecutor’s key witness. See Am. Pet. and Brief in Support 

of Pet. (ECF No. 11-1, PageID.147, 177).

Respondent argues that this claim is procedurally defaulted, 

regardless of whether the claim is viewed as one about trial counsel or 

appellate counsel. The Court understands the claim to be alleging that 

appellate counsel was ineffective for failing to raise claims about trial 

counsel. Respondent, nevertheless, maintains that petitioner’s claim about 

appellate counsel is procedurally defaulted because petitioner did not raise

the claim about appellate counsel in his motion for relief from judgment. 

The doctrine of exhaustion of state remedies requires state prisoners 

to give the state courts an opportunity to act on their claims before they 

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present their claims to a federal court in a habeas corpus petition. See 28 

U.S.C. § 2254(b)(1), (c); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). 

This requirement is satisfied if the prisoner “invok[es] one complete round 

of the State’s established appellate review process.” O’Sullivan, 526 U.S. 

at 845 (emphasis added). 

The Sixth Circuit Court of Appeals recently explained that, “[i]In states 

such as Michigan with a two-tiered appellate system—that is, those that 

have both an intermediate appellate court and a state supreme court—a 

petitioner must present his claims to the state supreme court in order to 

satisfy this exhaustion requirement.” Robinson v. Horton, 950 F.3d 337, 

343 (6th Cir.) (citing O’Sullivan, 526 U.S. at 839–40, 845), cert. denied, 141 

S. Ct. 658 (2020); see also Wagner v. Smith, 581 F.3d 410, 414-15 (6th 

Cir. 2009) (explaining that, to properly exhaust state remedies, the 

applicant must have fairly presented the factual and legal basis for each of 

his claims to the state court of appeals and to the state supreme court 

before raising the claims in a federal habeas corpus petition). 

Petitioner presented his claim about appellate counsel in the 

Michigan Court of Appeals and in the Michigan Supreme Court on state 

collateral review. The Court, therefore, considers petitioner’s claim about 

appellate counsel to be exhausted. The Court proceeds to review 

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petitioner’s claim, and because the last state court to issue a reasoned

order in petitioner’s case did not adjudicate the claim on the merits, AEDPA 

is not applicable, and the Court’s review is de novo. Cassano v. Shoop, 1 

F.4th 458, 466 (6th Cir. 2021). 

1. Clearly Established Federal Law

The proper standard for evaluating a claim about appellate counsel is 

the standard enunciated in Strickland. Smith v. Robbins, 528 U.S. 259, 

285 (2000). An appellate attorney is not required to raise every nonfrivolous 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). Instead, an appellate attorney is constitutionally 

ineffective if (1) the attorney acted unreasonably in failing to discover and 

raise nonfrivolous issues on appeal and (2) there is a reasonable 

probability that the petitioner would have prevailed on appeal if his attorney 

had raised the issues. Robbins, 528 U.S. at 285 (citing Strickland, 466 

U.S. at 687-91, 694). 

“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) (quoted in 

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

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claim of ineffective assistance of appellate counsel, then, the court must 

assess the strength of the claim that counsel failed to raise.” Henness v.

Bagley, 644 F.3d 308, 317 (6th Cir. 2011). 

2. Application of the Law 

a. Failure to Present a Defense and Investigate Witnesses

Petitioner alleges that a week before trial, counsel still had not 

interviewed six material alibi witnesses who could have verified that 

petitioner was in a different town on the night of the crime. According to 

petitioner, counsel also waited a week before the trial to review the police 

reports with petitioner and ultimately rested the defense case without 

presenting any evidence. Petitioner contends that trial counsel was grossly 

unprepared for trial, that he lied to petitioner, and that he falsely assured

petitioner that he could testify in his own defense and call witnesses to 

support his defense. See Brief in Support of Pet. (ECF No. 11-1, 

PageID.182-84).

Defense counsel stated at a settlement conference six days before 

trial that he was ready for trial, but that he was still having problems

locating witnesses. He went on to say that he had asked the prosecutor to 

assist him in obtaining the witnesses’ addresses, that the prosecutor had 

provided him with current addresses, and that he (defense counsel) 

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intended to check the addresses that afternoon. See 9/7/11 Settlement 

Conference at pp. 5-6 (ECF No. 20-4, PageID.400-01).

The results of defense counsel’s attempt to reach witnesses is not 

clear from the record, and at trial, he rested his case without presenting any 

witnesses. See 9/27/11 Trial Tr. at p. 1280 (ECF No. 20-13, PageID.1704). 

He may have been unsuccessful in contacting the witnesses, or he may 

have determined that the witnesses would not help petitioner. In any event, 

the record demonstrates that defense counsel was well prepared for trial

and competent. He had a firm grasp of the facts, he made appropriate 

objections, and despite the lack of defense witnesses, he presented a 

defense that undermined Seger’s credibility and emphasized the lack of 

evidence regarding the manner and cause of death. 

Petitioner’s waiver of his right to testify, moreover, provides some 

insight into the decision not to present any witnesses. In explaining his 

decision not to testify, petitioner said that evidence of his past statements 

and the officers’ testimony established his testimony for him. See id. at p. 

1283, PageID.1707. He also stated that he had conferred sufficiently on 

that issue with his attorney. Id. 

Petitioner has failed to show that defense counsel’s trial strategy was 

unreasonable. He also has failed to show that defense counsel was 

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ineffective for allegedly failing to investigate witnesses. Appellate counsel, 

therefore, was not ineffective for failing to raise petitioner’s underlying claim 

about trial counsel. 

b. Failure to Permit Petitioner to Testify in his own Behalf

Petitioner states that he informed defense counsel that he wanted to 

testify in his own defense and that counsel assured him he could testify, but 

counsel rested without allowing him to testify. See Brief in Support of 

Petition (ECF No. 11-1, PageID.184). The record, however, indicates that 

petitioner made a voluntary and informed decision not to testify. After the 

prosecution rested its case, petitioner informed the trial court in the jury’s 

absence that he understood his right to testify and his right to remain silent 

and that he chose not to testify. He assured the trial court that he had 

conferred with his attorney, and the reason he gave for not testifying was 

that his defense had been established through evidence of his prior 

statements and the officers’ testimony. See 9/27/11 Trial Tr. at pp. 1281-

83 (ECF No. 20-13, PageID.1705-07). 

Petitioner has not shown that trial counsel prevented him from 

testifying. Therefore, appellate counsel was not ineffective for failing to 

raise petitioner’s underlying claim about trial counsel. 

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c. The Right to Counsel and to be Present; Failure to Object

Petitioner alleges next that he was denied his right to counsel and 

right to be present at a hearing on the prosecution’s motion to detain Gary 

Gage as a material witness. See 9/9/12 Hr’g Tr. (ECF No. 20-5). 

Petitioner asserts that his attorney’s presence was necessary to learn vital 

information about the State’s case and to better prepare for trial. See Brief 

in Support of Pet. (ECF No. 11-1, PageID.186). 

“The [Supreme] Court has assumed that, even in situations where the 

defendant is not actually confronting witnesses or evidence against him, he 

has a due process right ‘to be present in his own person whenever his 

presence has a relation, reasonably substantial, to the fulness of his 

opportunity to defend against the charge.’” Stincer, 482 U.S. at 745 

(quoting Snyder, 291 U.S. at 105–106). In addition, “[t]here are . . . 

circumstances that are so likely to prejudice the accused that the cost of 

litigating their effect in a particular case is unjustified.” United States v.

Cronic, 466 U.S. 648, 658 (1984). Such circumstances exist when there is 

a “complete denial of counsel,” when “the accused is denied counsel at a 

critical stage of his trial,” and when “counsel entirely fails to subject the 

prosecution’s case to meaningful adversarial testing[.]” Id.

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Petitioner has not cited any Supreme Court decision which holds that 

a defendant in a criminal case has a right to counsel and to be present at a 

material-witness hearing. Gage, moreover, did not discuss his potential 

testimony at the material-witness hearing, and because he was on the 

prosecution’s witness list, see 9/9/11 Motion Hr’g Tr. at p. 5 (ECF No. 20-5, 

PageID.416), defense counsel may have had other means of determining 

what Gage would say at trial. 

Gage, in fact, took possession of a vehicle previously owned by 

petitioner and petitioner’s wife, and DNA evidence showed that the victim

had been in the trunk of the car. See id. According to the prosecutor, 

petitioner himself admitted in one or two of his interviews with law 

enforcement officials that the victim was in the trunk of the vehicle while he 

owned it. Id. 

Defense counsel’s presence at the material-witness hearing was not 

necessary to learn vital information about the State’s case or to better 

prepare for trial. Appellate counsel, therefore, was not ineffective for failing 

to raise a claim about petitioner and defense counsel being absent from the 

hearing on detaining Gage. 

Petitioner, nevertheless, asserts that defense counsel should have 

objected to, and refuted, Gage’s trial testimony that three years after the 

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crime, there was still a putrid odor consistent with decomposing flesh in the 

trunk of the vehicle that he acquired from petitioner and petitioner’s wife. 

See Brief in Support of Pet. (ECF No. 11-1, PageID.184-87.) Lieutenant 

David Kirk, however, also testified about a foul odor in the car three years 

after the crime, see 9/26/11 Trial Tr. at p. 1172 (ECF No. 20-12, 

PageID.1596), and the smell of death was a pervasive theme in the case. 

Therefore, trial counsel’s failure to object to Gage’s testimony about the 

odor in his car did not prejudice petitioner, and appellate counsel was not 

ineffective for failing to raise the issue on appeal. 

d. Failure to Object and Impeach a Key Witness

The final claim that petitioner contends his appellate attorney should 

have raised alleges that trial counsel was ineffective for failing to make 

crucial objections at trial and impeach Seger. According to petitioner, trial 

counsel allowed the prosecutor to convince the jury that Seger did not want 

to be blamed for the murder, that Seger did his best to tell the truth, and 

that Seger did not initially lie or mislead the police about the victim being at 

Seger’s apartment. Petitioner concludes that trial counsel endorsed the 

prosecutor’s case and enabled the prosecution to do whatever was 

necessary to sway the jury, regardless of whether the evidence was 

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prejudicial, untrue, or scientifically possible. See Brief in Support of Pet. 

(ECF No. 11-1, PageID.187-89). 

The record does not support petitioner’s allegations. Defense 

counsel cross-examined Seger about inconsistencies in his prior testimony 

and statements to the police and about Seger’s failure to implicate 

petitioner during the early stages of the investigation. Defense counsel 

also elicited Seger’s testimony that he did not accuse petitioner of the 

homicide until after Seger viewed a video in which petitioner accused

Seger of killing the victim. Defense counsel even managed to have Seger 

admit that he did not actually witness the murder, that he did not know 

whether the victim overdosed or was strangled, and that he was using 

drugs at the time of the crime. See 9/26/11 Trial Tr. at 1063-1074, 1076-

1087 (ECF No. 20-12, PageID.1487-1498, 1500-1511). And during closing 

arguments, defense counsel attacked Seger’s credibility and described 

Seger as a liar. See 9/28/11 Trial Tr. at 1379-83, 1387-88 (ECF No. 20-14, 

PageID.1803-07, 1811-12). 

Defense counsel’s approach to Seger’s testimony and the 

prosecutor’s remarks about Seger did not constitute deficient performance. 

Therefore, appellate counsel was not ineffective for failing to raise the issue 

on direct appeal.

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3. Summary

Appellate counsel did not act unreasonably in failing to discover and 

raise petitioner’s four claims about trial counsel on appeal, and there is not 

a reasonable probability that petitioner would have prevailed on direct 

appeal if his attorney had raised the foregoing issues about trial counsel. 

“[B]y definition, appellate counsel cannot be ineffective for a failure to raise 

an issue that lacks merit.” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 

2001). Accordingly, petitioner’s fourth claim fails.

E. Sufficiency of the Evidence (Claim V) and 

 Prosecutorial Misconduct (Claim VI)

The fifth habeas claim alleges that petitioner’s conviction should be 

vacated because the State failed to prove the elements of the offense 

beyond a reasonable doubt. The sixth and final habeas claim alleges that 

the prosecutor’s misconduct deprived petitioner of his right to a fair trial. 

Petitioner contends that the prosecutor relied on perjured and unreliable 

testimony. 

The state trial court rejected these claims on state collateral review 

because petitioner could have raised the claims in the Michigan Court of 

Appeals on direct appeal and because he failed to show “cause” for his 

omissions on appeal. Accordingly, respondent argues that petitioner 

procedurally defaulted claims five and six.

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The state procedural rule in question is Michigan Court 6.508(D)(3), 

which reads in relevant part as follows:

(D) Entitlement to Relief. The defendant has the burden of 

establishing entitlement to the relief requested. The court may 

not grant relief to the defendant if the motion 

. . . . 

(3) alleges grounds for relief, other than jurisdictional 

defects, which could have been raised on appeal 

from the conviction and sentence or in a prior motion 

under this subchapter, unless the defendant 

demonstrates 

(a) good cause for failure to raise such 

grounds on appeal or in the prior motion, 

and 

(b) actual prejudice from the alleged 

irregularities that support the claim for 

relief. 

Mich. Ct. R. 6.508(D)(3). 

Petitioner violated this rule by raising his fifth and sixth claims for the 

first time in his motion for relief from judgment even though he could have 

raised the claims in his appeal of right. His violation of Rule 6.508(D)(3) 

satisfies the first procedural-default factor. 

The state trial court was the last state court to issue a reasoned 

decision on petitioner’s fifth and sixth claims, and it rejected the claims 

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because petitioner did not raise the claims on direct appeal and did not 

show “good cause” under Michigan Court Rule 6.508(D)(3). Because this 

ruling constituted enforcement of Rule 6.508(D), the second proceduraldefault factor is satisfied. 

The third factor also is satisfied, because Rule 6.508(D) is an 

adequate and independent ground on which state courts may rely to 

foreclose review of federal constitutional claims. Howard v. Bouchard, 405 

F.3d 459, 477 (6th Cir. 2005). Therefore, to prevail on his procedurally 

defaulted fifth and sixth claims, petitioner must show “cause” for his state 

procedural error and resulting prejudice. 

1. “Cause” for the Procedural Default

Petitioner argues in his reply brief and in his fourth claim that his 

appellate attorney was ineffective for failing to raise his claims about the 

sufficiency of the evidence and the prosecutor’s conduct. See Brief in 

Support of Pet. (ECF No. 11-1, PageID.177) (“Additionally, the ineffective 

assistance of appellate counsel extends to his failure to raise issues II and 

III within the brief.”);

2 Response in Opp’n to Respondent’s Response (ECF 

2

 Petitioner’s habeas claim about appellate counsel (Claim IV) was the first argument in 

his applications for leave to appeal in the Michigan Court of Appeals and in the 

Michigan Supreme Court on state collateral review. And habeas claims V and VI were 

claims II and III in his applications for leave to appeal on state collateral review. So, his 

reference to “issues II and III within the brief” appears to be a reference to habeas 

claims V and VI regarding the sufficiency of the evidence and the prosecutor’s conduct. 

Case 2:15-cv-11155-GCS-MJH ECF No. 28, PageID.2520 Filed 09/09/21 Page 47 of 59
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No. 25, PageID.2452) (“Petitioner argues that ineffective assistance is why 

the additional issues were not argued on his appeal by right[.]”). 

Constitutionally ineffective assistance of appellate counsel is “is a 

well-recognized basis for showing cause and prejudice.” Chase v.

MaCauley, 971 F.3d 582, 592 (6th Cir. 2020) (citing Carpenter, 529 U.S. at 

451-52). But to show ineffective assistance of appellate counsel excusing 

a procedural default, a habeas petitioner must show that appellate 

counsel’s failure to raise a claim rose to the level of a constitutional 

violation under Strickland. Id. In other words, “[a]ttorney error short of 

ineffective assistance of counsel does not constitute cause for a procedural 

default even when that default occurs on appeal rather than at trial.” 

Carrier, 477 U.S. at 492. 

When assessing whether an appellate attorney’s actions prejudiced 

the petitioner, the Court considers the strength of the claims that appellate 

counsel failed to raise. Carter v. Parris, 910 F.3d 835, 841 (6th Cir. 2018) 

(citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008)), cert. denied, 

139 S. Ct. 2703 (2019). If the petitioner’s underlying claims are meritless, 

appellate counsel’s failure to raise the claims does not establish cause to 

excuse a procedural default. Hoffner v. Bradshaw, 622 F.3d 487, 499 (6th 

Cir. 2010). 

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a. Evidence Supporting the Verdict

Petitioner’s fifth claim challenges the sufficiency of the evidence on 

grounds that the cause of death was never determined and that the 

prosecution failed to present sufficient evidence that he caused the victim’s 

death. According to petitioner, the only testimony that placed him at the 

alleged scene of the crime was Seger’s testimony, and Seger’s story 

changed over the years and was untrue. See Am. Pet. and Brief in 

Support of Pet. (ECF No. 11-1, PageID.148, 190-193).

A forensic pathologist testified at petitioner’s trial that he could not 

determine the cause and manner of death because the body had been 

altered significantly and because he did not have enough information about 

the victim to make a definitive diagnosis. See 9/22/11 Trial Tr. at 789-90 

(ECF No. 20-11, PageID.1213-14). However, a court reviewing a 

challenge to the sufficiency of the evidence determines “whether, after 

viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis in original); see also People v. Harris, 495 Mich. 120, 126; 845 

N.W.2d 477, 481–82 (2014) (“In determining whether sufficient evidence 

exists to sustain a conviction, this Court reviews the evidence in the light 

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most favorable to the prosecution, and considers whether there was 

sufficient evidence to justify a rational trier of fact in finding guilt beyond a 

reasonable doubt.”). 

In Michigan, “the elements of second-degree murder are as follows: 

(1) a death, (2) the death was caused by an act of the defendant, (3) the 

defendant acted with malice, and (4) the defendant did not have lawful 

justification or excuse for causing the death.” People v. Smith, 478 Mich. 

64, 70; 731 N.W.2d 411, 414–15 (2007). Petitioner challenges only the 

second element: whether there was sufficient evidence that he caused the 

victim’s death. 

Seger testified that on July 6, 2000, he, petitioner, and the victim 

were smoking marijuana in the living room of Seger’s apartment. Seger left 

the living room to use the bathroom because he thought he was going to 

vomit. The fan was on in the bathroom, and after approximately five to ten 

minutes, he emerged from the bathroom and saw petitioner lying on the 

floor on top of the victim. Both petitioner and the victim were lying face 

down, and petitioner’s hands were under the victim’s armpits. The victim 

was motionless and not making any noises. Petitioner then got up, went to 

his car, and returned with a blanket. He wrapped the victim in the blanket, 

put her over his shoulder, carried her to his car where he put her in the 

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trunk, and left in the car. Seger claimed at trial that he did not intervene at 

the time because he was afraid. See 9/26/11 Trial Tr. at pp. 1021-31 (ECF 

No. 20-12, PageID.1445-55). 

For the same reason, Seger did not tell the police what petitioner had 

done when the police initially contacted him in 2000. He feared 

repercussion from petitioner who had previously done some things, and he 

feared his (Seger’s) father who had threatened Seger and other people in 

the past and had little respect for someone who snitched. See id. at p. 

1021, PageID.1445. 

Two weeks after the incident at Seger’s apartment, two women who 

were searching for the victim found her decomposed body in the woods. 

See 9/20/11 Trial Tr. at pp. 503-12 (ECF No. 20-9, PageID.927-036). Gary 

Gage testified that in 2003, he acquired a 1985 Oldsmobile Cutlass that 

petitioner used occasionally when petitioner was married to Gage’s sisterin-law. Gage used to work in a cemetery, and he stated that the car 

smelled like something dead had been in it for a while. The odor was 

strongest in the trunk, and shortly after he informed petitioner that a 

detective wanted to search the vehicle, petitioner left for California. See

9/21/11 Trial Tr. at pp. 589-98 (ECF No. 20-10, PageID.1013-22). 

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Randall Tarolli was living in the same apartment complex as 

petitioner in July 2000, and he also noticed the odor in the car that 

petitioner drove. However, when he asked petitioner about the smell, 

petitioner said that it was garbage, and he refused Tarolli’s offer to help 

throw the garbage in a nearby receptacle because he did not want to get 

dirty. See id. at pp. 604-610, PageID.1028-1034. 

Petitioner lived with Richard Wisenbaugh, Jr., for about a month 

during the summer of 2000. One day when petitioner had moved back into 

his own apartment, Wisenbaugh went to petitioner’s apartment to buy 

marijuana. There was a putrid stink in the apartment, and even though 

petitioner stated that the sewer had backed up, Wisenbaugh knew that the 

smell was not from the sewer. Also, during petitioner’s small talk with 

Wisenbaugh, he asked Wisenbaugh whether Wisenbaugh would use 

muriatic acid or trypto chloride if he were trying to get rid of somebody. 

Wisenbaugh told petitioner that would not work because it would not 

dispose of bones or teeth. Wisenbaugh then became upset with petitioner 

for having him there while something was going on. He did not suspect 

petitioner of the victim’s murder at the time, but he started to distance 

himself from petitioner and several other people after that incident. See id. 

at pp. 717-23, PageID.1141-47. 

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Petitioner was arrested on April 11, 2011. See 9/26/11 Trial Tr. at 

p.1183 (ECF No. 20-12, PageID.1607). Jose Garcia met petitioner on 

April 26, 2011, when both men were being transferred from one prison to 

another prison. Petitioner told Garcia that his parole had been taken from 

him because he was accused of a murder that happened eleven years 

earlier. Petitioner then sarcastically explained to Garcia that he had put a 

girl to sleep in Shiawassee County after the girl refused to have sex with 

him and that the girl was found three weeks later. See id. at pp. 1095-

1101, PageID.1519-25.

Lieutenant Kirk contacted the Department of Corrections and verified 

that Garcia and petitioner had been together on April 26, 2011. See id. at 

p. 1185, PageID.1609. Kirk also testified that during a consent search of 

Gary Gage’s car in November 2003, he smelled a foul odor in the trunk of 

the car, and he noticed some hair sticking out of the rubber grommet that 

held the taillight in place. When he disassembled the taillight, he 

discovered some body tissue about the size of a nickel or dime, and an

earring dropped out of the taillight where the hair was located. See id. at 

pp.1171-74, PageID.1595-98. 

An expert witness testified that some of the hairs found in the light 

socket of the car were like the victim’s hair. See 9/21/11 Trial Tr. at 693-

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94, 712-13 (ECF No. 20-10, PageID.1117-18, 1136-37). And an expert in 

mitochondrial DNA analysis testified that the victim could not be excluded 

as a source of the hair found in the trunk of the car, but petitioner and his 

former wife could be excluded. See 9/22/11 Trial Tr. at pp. 837-39, 843-44 

(ECF No. 20-11, PageID.1261-63, 1267-68). 

A rational juror could have concluded from the evidence taken in the 

light most favorable to the prosecution that petitioner murdered the victim 

and that the prosecution proved its case beyond a reasonable doubt. 

Therefore, petitioner’s sufficiency-of-the-evidence claim lacks merit, and 

appellate counsel was not ineffective for failing to raise the claim on appeal. 

Because appellate counsel was not ineffective, he was not “cause” for 

petitioner’s failure to raise his claim on direct appeal. 

b. The Prosecutor’s Reliance on Three Witnesses

Petitioner’s sixth claim concerns three prosecution witnesses. First, 

petitioner alleges that the prosecutor relied on perjured testimony from 

Seger. See Brief in Support of Pet. (ECF No. 11-1, PageID.196). Next, 

petitioner asserts that the prosecutor should not have introduced Garcia’s 

testimony because Garcia (i) used information from the news media and 

claimed that it came from petitioner, (ii) admitted to an expectation of 

leniency from the parole board in exchange for his testimony, and (iii) 

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claimed that the victim’s death occurred two days earlier than the actual 

time of death. See id. at PageID.199. Finally, petitioner asserts that the 

prosecutor should not have introduced Gage’s testimony because it was 

scientifically impossible for an odor of decaying flesh to be in the trunk of 

the car that he acquired from petitioner three years after the victim’s death. 

See id. 

Prosecutors may not deliberately deceive a court and jurors by 

presenting evidence that is known to be false. Giglio v. United States, 405 

U.S. 150, 153 (1972) (citing Mooney v. Holohan, 294 U.S. 103, 112 

(1935)). Prosecutors also may not allow false evidence to go uncorrected 

when it appears. Napue v. Illinois, 360 U.S. 264, 269 (1959). But “mere 

inconsistencies in testimony by government witnesses do not establish 

knowing use of false testimony,” United States v. Lochmondy, 890 F.2d 

817, 822 (6th Cir. 1989), and petitioner has not established that Seger 

perjured himself at trial. Instead, the record demonstrates that law 

enforcement officials pursued many leads and that the evidence continued 

to point to petitioner and Seger as suspects. Petitioner’s version of the 

facts, however, changed during his various interviews with law enforcement 

officials, and Lieutenant Kirk was not able to find support for it. In contrast, 

Seger’s story remained consistent and was supported by other evidence. 

Case 2:15-cv-11155-GCS-MJH ECF No. 28, PageID.2528 Filed 09/09/21 Page 55 of 59
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See 9/27/11 Trial Tr. at pp. 1255-57, 1264 (ECF No. 20-13, PageID.1679-

81, 1688). Thus, there is no support for petitioner’s assertion that the 

prosecutor relied on perjured testimony. 

As for Garcia, there was no evidence that he acquired information 

about the murder from the news media. During an interview with 

Lieutenant Kirk, he identified petitioner in a photo as the man that he had 

talked to during an institutional transfer. See 9/26/11 Trial Tr. at pp. 1114-

15, (ECF No. 20-12, PageID.1538-39). And at trial, Garcia testified that he

had not read about the homicide, did not know petitioner’s name, and had 

not previously heard the victim’s name. See id. at p. 1102, PageID.1526. 

The record also does not support petitioner’s contention that Gage’s 

testimony was unreliable simply because Gage testified about an odor that 

was present in a car which he acquired from petitioner three years after the

victim’s death. While this testimony may have seemed implausible, Gage 

was not a suspect in the case, and he claimed that he tried, but was 

unable, to get rid of the smell in the vehicle. See 9/21/11 Trial Tr. at p. 594 

(ECF No. 20-10, PageID.1018). 

Lieutenant Kirk, moreover, corroborated Gage’s testimony on this 

issue when he testified that he noticed the odor during a search of the 

vehicle more than three years after the victim’s death. See 9/26/11 Trial Tr. 

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at pp. 1171-73 (ECF No. 20-12, PageID.1595-7). Kirk also discovered a 

small piece of human tissue during his search of the vehicle, and DNA from 

hair found near the human tissue was linked to the victim. The jury could 

have inferred that the human tissue was the reason for the foul odor that 

existed in the vehicle three years after the crime.

Finally, the credibility of Seger, Garcia, and Gage went “to the weight 

of the evidence, not the sufficiency,” United States v. Gibbs, 182 F.3d 408, 

425 (6th Cir. 1999), and the “Constitution leaves it to the jury . . . to 

evaluate the credibility of witnesses in deciding a criminal defendant’s guilt 

or innocence.” Ramonez v. Berghuis, 490 F.3d 482, 490 (6th Cir. 2007); 

see also Gunning v. Cooley, 281 U.S. 90, 94 (1930) (“Issues that depend 

on the credibility of witnesses, and the effect or weight of evidence, are to 

be decided by the jury.”).

Petitioner’s argument about the prosecutor’s reliance on the 

testimony of Seger, Garcia, and Gage lacks merit. Therefore, appellate 

counsel’s failure to raise the issue on appeal did not amount to ineffective 

assistance of counsel, and appellate counsel was not “cause” for 

petitioner’s failure to raise the claim on direct appeal.

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2. Prejudice and Miscarriage of Justice

The Court need not determine whether the alleged constitutional 

errors prejudiced petitioner, because he has failed to show “cause” for his 

failure to comply with state law. Simpson, 238 F.3d 399, 409 (6th Cir. 

2000). Petitioner also has not shown that a fundamental miscarriage of 

justice will occur if the Court does not adjudicate the substantive merits of 

his fifth and sixth claims. Therefore, the fifth and sixth habeas claims are 

procedurally defaulted, as all the four procedural default factors are 

satisfied.

V. Conclusion

Petitioner’s second, fifth, and sixth claims are procedurally defaulted, 

and the state appellate court’s adjudication of his first and third claims on 

the merits was not contrary to Supreme Court precedent, an unreasonable 

application of Supreme Court precedent, or an unreasonable determination 

of the facts. The Court reviewed petitioner’s fourth claim de novo and 

found no merit in it. For all these reasons, the Court denies the amended 

petition for a writ of habeas corpus.

The Court declines to issue a certificate of appealability because 

petitioner has not made a substantial showing of the denial of a 

constitutional right. 28 U.S.C. § 2253(c)(2). In addition, reasonable jurists 

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could not disagree with the Court’s resolution of petitioner’s constitutional 

claims, nor conclude that petitioner’s claims 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)). 

Petitioner, nevertheless, may proceed in forma pauperis on appeal if 

he appeals this decision, because he was permitted to proceed in forma

pauperis in this Court, and an appeal could be taken in good faith. 28 

U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A). 

Dated: September 9, 2021

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

September 9, 2021, by electronic and/or ordinary mail and 

also on Laurencio Rodriguez #649211, Marquette Branch 

Prison, 1960 U.S. Hwy 41 South, 

Marquette, MI 49855.

s/Brianna Sauve

Deputy Clerk

Case 2:15-cv-11155-GCS-MJH ECF No. 28, PageID.2532 Filed 09/09/21 Page 59 of 59