UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DANA MAURICE MILLER, 

 Petitioner, 

v. CASE NO. 2:15-cv-12056 

 HONORABLE DENISE PAGE HOOD 

STEVE RIVARD, 

 Respondent. 

___________________________/ 

ORDER DENYING PETITIONER’S APPLICATION 

FOR A CERTIFICATE OF APPEALABILITY [30] 

I. INTRODUCTION

 Petitioner Dana Maurice Miller filed a pro se habeas corpus petition 

challenging his state convictions for first-degree murder, Mich. Comp. Laws § 

750.316(1)(a), felon in possession of a firearm, Mich. Comp. Laws § 750.224f, and 

possession of a firearm during the commission of a felony, Mich. Comp. Laws § 

750.227b. Petitioner alleged as grounds for relief that: (1) the evidence at trial 

was insufficient to support his murder conviction; (2) the trial court abused its 

discretion by admitting testimony about Petitioner’s prior “bad acts;” (3) the 

prosecutor denied him a fair trial by questioning him about being arrested in front 

of a “dope” house and neglecting to visit his mother; (4) the prosecutor denied him 

a fair trial by introducing evidence that a prosecution witness did not have a 
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criminal record; (5) the trial court erred by rejecting his defense and penalizing him 

for exercising his right to testify; (6) defense counsel was ineffective for failing to 

call the medical examiner as a witness; (7) defense counsel was ineffective for 

arguing an invalid defense; (8) the trial court violated his right of confrontation; 

(9) the prosecution failed to establish the corpus delicti of the murder; and (10) the 

prosecutor and defense counsel denied him the right to present a defense by not 

producing the medical examiner as a witness. 

 On May 31, 2018, the Court denied the habeas petition because Petitioner’s 

third and fourth claims were procedurally defaulted and because the state appellate 

court’s adjudication of the other claims was not contrary to clearly established 

federal law. The Court also declined to issue a certificate of appealability, but 

granted leave to appeal in forma pauperis. This matter presently is before the 

Court on Petitioner’s application for a certificate of appealability. 

II. DISCUSSION

 A certificate of appealability may issue “only if the applicant has made a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 

2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of 

reason could disagree with the district court’s resolution of his constitutional 

claims or that jurists could conclude the issues presented are adequate to deserve 
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encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 

(2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 

Where a district court has rejected the constitutional claims on the 

merits, the showing required to satisfy § 2253(c) is straightforward: 

The petitioner must demonstrate that reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or 

wrong. . . . . When the district court denies a habeas petition on 

procedural grounds without reaching the prisoner’s underlying 

constitutional claim, a [certificate of appealability] should issue when 

the prisoner shows, at least, that jurists of reason would find it 

debatable whether the petition states a valid claim of the denial of a 

constitutional right and that jurists of reason would find it debatable 

whether the district court was correct in its procedural ruling. 

Slack, 529 U.S. at 484. 

 Petitioner’s application for a certificate of appealability is moot because the 

Court declined to issue a certificate of appealability in its dispositive opinion. The 

application also lacks merit because it merely reiterates each of Petitioner’s habeas 

claims and then states that the issue is debatable among jurists of reason, that a 

court could resolve the issue differently, and that the question is adequate to 

deserve encouragement to proceed further. 

 The Court does not believe the issues warrant encouragement to proceed 

further because, as the Court explained in its dispositive opinion: a rational trier of 

fact could conclude from the evidence taken in a light most favorable to the 

prosecution that Petitioner premeditated and deliberated the killing; Petitioner’s 
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challenge to the admission of “other acts” evidence is not a cognizable claim; 

Petitioner’s third and fourth claims regarding the prosecutor’s conduct are 

procedurally defaulted because Petitioner admitted that he did not object to the 

alleged misconduct at trial, the Michigan Court of Appeals enforced the State’s 

contemporaneous-objection rule, and Petitioner did not allege “cause” for his 

procedural defaults; the trial court did not use an incorrect burden of proof or 

violate Petitioner’s constitutional right to testify; Petitioner’s trial attorney was not 

ineffective; Petitioner waived or forfeited his right to confront a witness, and the 

alleged error was harmless; and Petitioner’s confession to a probation officer was 

admissible in evidence because the prosecution established the corpus delicti for 

the murder. 

 Reasonable jurists would not find the Court’s assessment of habeas claims 

one, two, and five through ten debatable or wrong, and reasonable jurists would 

not find the Court’s procedural ruling on Petitioner’s third and fourth claims 

incorrect. The Court, therefore, denies Petitioner’s application for a certificate of 

appealability (Docket No. 30). Petitioner may seek a certificate of appealability 

from the Court of Appeals. 

 S/Denise Page Hood 

 Denise Page Hood 

 Chief Judge, United States District Court 

Dated: August 21, 2018 
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I hereby certify that a copy of the foregoing document was served upon counsel of 

record on August 21, 2018, by electronic and/or ordinary mail. 

 S/LaShawn R. Saulsberry 

 Case Manager