UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DUSTIN JOHN KOSIK,

Petitioner, Civil No. 5:15-CV-11508

HONORABLE JOHN CORBETT O’MEARA

v. UNITED STATES DISTRICT JUDGE

MITCH PERRY,

Respondent,

____________________________________/

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS

CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

OR LEAVE TO APPEAL IN FORMA PAUPERIS

Dustin John Kosik, (“Petitioner”), confined at the Newberry Correctional Facility

in Newberry, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In

his pro se application, petitioner challenges his convictions for unlawful imprisonment,

M.C.L.A. 750.349b; assault and battery, M.C.L.A. 750.81; and being a third felony

habitual offender, M.C.L.A. 769.11. For the reasons stated below, the petition for writ of

habeas corpus is DENIED. 

I. Background

Petitioner was convicted of the above offenses following a jury trial in the Bay

County Circuit Court. This Court recites verbatim the relevant facts relied upon by the

Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28

U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

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On February 2, 2012, defendant entered the shoe store where the victim

worked. The victim was present with another coworker. Defendant was

ostensibly looking for dress shoes, but the store did not have defendant’s size

in the style of shoe he wanted. The victim “print[ed] off a little slip that said

all the different stores that had that select shoe on it, and then [she] handed that

to” defendant. The victim’s coworker was preparing to take her break at the

time and had her jacket and purse with her. Defendant left the store. Shortly

thereafter, the coworker left to take her break.

Defendant returned to the store after “[m]aybe five minutes.” The victim

testified that defendant “asked [her] if [she] could call over to the store that the

shoes were located at. And he asked [her] to go over to the actual shoes to

double-check to make sure that they were the right shoes that he was looking

for.” The victim went over to the shoes, knelt down, pulled out the box of the

particular shoe defendant wanted, and called another store on a cordless phone

to verify that it had the shoe in stock. The victim testified that once she stood

up, defendant “lunged towards [her] and grabbed [her], and turned [her]

around....” “[H]e was standing a little bit behind me,” she testified, “and he had

to come at me and grab me, and put his arm all the way around me, so it’d be

all the way around my far right side, and my left arm would be up against

him.”

The victim further testified that defendant took the phone from her and “told

[her] to keep walking” as he led her into “the conference room.” The victim

testified that as defendant led her into the conference room, he asked whether

there were any security cameras in the store. She told him that she did not

know. The victim testified that defendant closed the door after he led her into

the room. She further testified that a person in the main area of the store

would not be able to see into the conference room if the door was shut, and

that the conference room had no windows. When asked whether there were

any doors leading out of the conference room, the victim responded, “Not into

the conference room. Once you go into the very back room, there’s an

emergency exit there.” The victim testified that defendant was “[p]robably

about an arm’s distance away” while they were in the conference room.

The victim testified that once they were in the conference room, defendant

attempted to convince her that he was “joking.” He asked the victim not to tell

anyone about the incident and said he was “just kidding.” Defendant then left

the store and the victim called 911. Defendant was apprehended by police

shortly thereafter.

People v. Kosik, 303 Mich. App. 146, 148-51; 841 N.W. 2d 906 (2013).

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Petitioner’s conviction was affirmed on appeal. Id., lv. den. 497 Mich. 862 (2014). 

Petitioner seeks a writ of habeas corpus on the following grounds:

I. The prosecutor failed to submit sufficient evidence to support the conviction

for unlawful imprisonment. In particular, the prosecutor did not prove that Mr.

Kosik confined, or secretly confined, the complainant. The conviction should

be vacated.

II. The guilty verdict is against the great weight of the evidence. Mr. Kosik is

entitled to a new trial.

III. Over Defendant’s objection, the trial court instructed the jury that the

complainant need not resist. The court lessened the prosecution’s burden of

proof and made it easier to convict Mr. Kosik. The Defendant is entitled to a

reversal of the conviction.

IV. The trial court erroneously scored points for two sentencing variables. The

trial court violated Mr. Kosik’s due process rights by imposing sentence based

on inaccurate information. Mr. Kosik is entitled to remand for resentencing.

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas

cases: 

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

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A decision of a state court is “contrary to” clearly established federal law if the

state court arrives at a conclusion opposite to that reached by the Supreme Court on a

question of law or if the state court decides a case differently than the Supreme Court has

on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06

(2000). An “unreasonable application” occurs when “a state court decision unreasonably

applies the law of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 409. A

federal habeas court may not “issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly.” Id. at 410-11.

The Supreme Court has explained that “[A] federal court’s collateral review of a

state-court decision must be consistent with the respect due state courts in our federal

system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “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)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.

Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[A] state court’s determination that a

claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562

U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 

Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to

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show that the state court’s rejection of his claim “was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. 

III. Discussion

A. Claims # 1 and # 2. The sufficiency and great weight of the evidence

claims.

In his first claim, petitioner contends that there was insufficient evidence to

establish the element of secret confinement to support his unlawful imprisonment

conviction. In his related second claim, petitioner contends that the verdict went against

the great weight of the evidence.

Taking petitioner’s second claim first, a federal habeas court has no power to

grant habeas relief on the ground that a state conviction is against the great weight of the

evidence. Cukaj v. Warren, 305 F. Supp. 2d 789, 796 (E.D. Mich. 2004); Dell v. Straub,

194 F. Supp. 2d 629, 648 (E.D. Mich. 2002); See also Artis v. Collins, 14 Fed. Appx.

387 (6th Cir. 2001)(declining to grant certificate of appealability to habeas petitioner on

claim that jury’s verdict was against the manifest weight of the evidence). A claim that a

verdict went against the great weight of the evidence is not of constitutional dimension,

for habeas corpus purposes, unless the record is so devoid of evidentiary support that a

due process issue is raised. Cukaj, 305 F. Supp. 2d at 796; See also Crenshaw v. Renico,

261 F. Supp. 2d 826, 834 (E.D. Mich. 2003). The test for habeas relief is not whether

the verdict was against the great weight of the evidence, but whether there was any

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evidence to support it. Dell, 194 F. Supp. 2d at 648. As long as there is sufficient

evidence to convict petitioner of these crimes, the fact that the verdict may have gone

against the great weight of the evidence would not entitle him to habeas relief. Id.

Petitioner is not entitled to relief on either of his claims because the evidence was

sufficient to convict him of unlawful imprisonment.

It is beyond question that “the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” In Re Winship, 397 U.S. 358, 364 (1970). 

But the critical inquiry on review of the sufficiency of the evidence to support a criminal

conviction is, “whether the record evidence could reasonably support a finding of guilt

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318 (1979). This

inquiry, however, does not require a court to “ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant

question is 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. Id. at 318-19 (internal citation and footnote

omitted)(emphasis in the original). Circumstantial evidence alone is sufficient to support

a conviction, and it is not necessary for the evidence at trial to exclude every reasonable

hypothesis except that of guilt. Johnson v. Coyle, 200 F. 3d 987, 992 (6th Cir.

2000)(internal quotations omitted). 

More importantly, a federal habeas court may not overturn a state court decision

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that rejects a sufficiency of the evidence claim simply because the federal court disagrees

with the state court’s resolution of that claim. Instead, a federal court may grant habeas

relief only if the state court decision was an objectively unreasonable application of the

Jackson standard. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011). “Because rational

people can sometimes disagree, the inevitable consequence of this settled law is that

judges will sometimes encounter convictions that they believe to be mistaken, but that

they must nonetheless uphold.” Id. For a federal habeas court reviewing the sufficiency

of evidence for a state court conviction, “the only question under Jackson is whether that

finding was so insupportable as to fall below the threshold of bare rationality.” Coleman

v. Johnson, 132 S.Ct. 2060, 2065 (2012). 

Under Michigan law, a person is guilty of the crime of unlawful imprisonment if

he or she knowingly restrains another person under any of the following circumstances:

(a) The person is restrained by means of a weapon or dangerous

instrument.

(b) The restrained person was secretly confined.

(c) The person was restrained to facilitate the commission of another

felony or to facilitate flight after commission of another felony.

United States v. Anderson, 608 Fed. Appx. 369, 373 (6th Cir. 2015); cert. denied, 136 S.

Ct. 264 (2015)(citing M.C.L.A. 750.349b). 

Petitioner was convicted of unlawful imprisonment under a theory that he secretly

confined the victim. For purposes of the unlawful imprisonment statute, “secretly

confined” means either of the following:

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(i ) To keep the confinement of the restrained person a secret.

(ii ) To keep the location of the restrained person a secret.

M.C.L.A. 750.349b(3)(b).

Petitioner contends that there was insufficient evidence that he secretly confined

the victim to support his conviction for unlawful imprisonment.

The Michigan Court of Appeals rejected petitioner’s claim. The Michigan Court

of Appeals first noted that although the unlawful imprisonment statute does not define

the word “confine,” the Michigan Supreme Court had defined “secret confinement” as

meaning the “deprivation of the assistance of others by virtue of the victim’s inability to

communicate his predicament.” People v. Kosik, 303 Mich. App. at 152 (quoting People

v. Jaffray, 445 Mich. 287, 309; 519 N.W.2d 108 (1994)). The Michigan Court of

Appeals further noted that they had held in a prior case that there was sufficient evidence

of confinement, even though the victim in that case had been moved to several different

locations by car, because “the victim ‘dared not leave while in defendant’s presence....’”.

Id. (quoting People v. Railer, 288 Mich.App. 213, 218; 792 N.W.2d 776 (2010)). The

Michigan Court of Appeals held that based on these definitions, the prosecutor presented

sufficient evidence to sustain petitioner’s conviction for unlawful imprisonment:

In this case, there was sufficient evidence presented for a rational jury to find

both that defendant confined the victim and that the confinement was secret.

The victim was taken against her will into a conference room. She was held

there in an enclosed area that was not visible to anyone who may have been

passing by or in the store. Defendant was standing in front of the door to the

conference room. If the victim had tried to escape, defendant was within

arm’s reach of her and could have prevented her from doing so. The victim

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testified that she was frightened by defendant. Viewing the evidence in the

light most favorable to the prosecution, there was sufficient evidence that

defendant restricted the victim’s movement within the bounds of the

conference room.

People v. Kosik, 303 Mich. App. at 152.

The Michigan Court of Appeals further rejected petitioner’s claim that the

incident happened too quickly for there to be a secret confinement:

Defendant also argues that the victim was not secretly confined because the

incident was too brief in duration. This argument miscomprehends the

meaning of confinement, as well as what is required for a confinement to be

secret. The determination whether a person has been secretly confined is

generally not dependent on the duration of the confinement. See Jaffray, 445

Mich. at 308, 519 N.W.2d 108. Further, the record shows that the victim was

moved to a location outside the view of others, and was confined and

restricted within the bounds of the conference room for a significant period.

Whether and when defendant chose to release the victim is immaterial to

whether there was secret confinement. Defendant’s argument that he did not

“keep” the victim’s confinement or the location of her confinement secret

because of the brief duration of the confinement fails for the same reason.

People v. Kosik, 303 Mich. App. at 153.

Petitioner further argues that nature of the confinement was not sufficiently

egregious to satisfy the elements of unlawful imprisonment. Petitioner argues that the

victim could have been discovered if a co-worker or customer had come in and walked

into the conference room. Petitioner further contends that the victim could have escaped

from the conference room. Petitioner also notes that he did not tie up the victim, gag her,

lock the doors, or threaten her.

The Michigan Court of Appeals rejected this claim, ruling that “Nothing in the

[unlawful imprisonment] statute requires a certain level of difficulty of discovery or

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escape.” Kosik, 303 Mich. App. at 153. The Michigan Court of Appeals concluded:

Viewing the evidence in the light most favorable to the prosecution, the

victim was unable to communicate her predicament. Defendant waited until

the victim’s coworker left on her break to return to the store. There were no

customers in the store when defendant came back. Defendant forcefully

grabbed the victim, led her into a conference room, and closed the door

behind him. The room had no windows. The victim was in an enclosed area

not visible to anyone who may have walked by or come into the store.

Defendant was standing in front of the door to the conference room.

Defendant took the phone away from the victim so that she could not call for

help. Given these circumstances, a rational jury could find that the victim

was deprived of the assistance of others by virtue of her inability to

communicate her predicament.

People v. Kosik, 303 Mich. App. at 153-54.

In the present case, there was sufficient evidence for a rational trier of fact to

conclude that petitioner secretly confined the victim, so as to support his conviction for

unlawful imprisonment. The victim was taken against her consent into a conference

room and held in an enclosed area without windows that was not visible to any persons

who were passing by or in the store. Petitioner stood in front of the conference room

door and was within arm’s reach of the victim so as to prevent her from attempting to

escape. Petitioner took the telephone away from the victim. The victim testified that she

was frightened by petitioner. Based on this evidence, a rational trier of fact could have

found the petitioner guilty beyond a reasonable doubt of unlawful imprisonment under a

secret confinement theory. 

To the extent that petitioner challenges the Michigan Court of Appeals’

determination that his actions under Michigan law qualified as a form of secret

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confinement, he would not be entitled to relief. State courts are the “ultimate expositors

of state law.” Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). What is essential to

establish the elements of a crime is a matter of state law. See Sanford v. Yukins, 288 F.

3d 855, 862 (6th Cir. 2002). Thus, “[s]tates are allowed to define the elements of, and

defenses to, state crimes.” See Lakin v. Stine, 80 Fed. Appx. 368, 373 (6th Cir.

2003)(citing Apprendi v. New Jersey, 530 U.S. 466, 484-87 (2000); McMillan v.

Pennsylvania, 477 U.S. 79, 84-86, (1986)). A federal habeas court must therefore defer

to a state appellate court’s construction of the elements of state crimes. See Coe v. Bell,

161 F. 3d 320, 347 (6th Cir. 1998). The Michigan Court of Appeals concluded that

petitioner’s action qualified under Michigan law to support a secret confinement theory

and this Court must defer to that court’s determination on this matter. Petitioner is not

entitled to relief on his first or second claims.

B. Claim # 3. The jury instruction claim.

Petitioner argues that the trial court erred by instructing the jury that the victim

did not have to resist for petitioner to be guilty of unlawful imprisonment. 

The burden of demonstrating that an erroneous instruction was so prejudicial that

it will support a collateral attack upon the constitutional validity of a state court

conviction is even greater than the showing required in a direct appeal. The question in

such a collateral proceeding is whether the ailing instruction so infected the entire trial

that the resulting conviction violates due process, not merely whether the instruction is

undesirable, erroneous, or even “universally condemned,” and an omission or incomplete

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instruction is less likely to be prejudicial than a misstatement of the law. Henderson v.

Kibbee, 431 U.S. 145, 154-155 (1977). The challenged instruction must not judged in

isolation but must be considered in the context of the entire jury charge. Jones v. United

States, 527 U.S. 373, 391 (1999). Further, any ambiguity, inconsistency or deficiency in

a jury instruction does not by itself necessarily constitute a due process violation.

Waddington v. Sarausad, 555 U.S. 179, 190 (2009). It is not enough that there might be

some “slight possibility” that the jury misapplied the instruction. Id. at 191. Federal

habeas courts do not grant relief, as might a state appellate court, simply because a jury

instruction may have been deficient in comparison to a model state instruction. Estelle v.

McGuire, 502 U.S. 62, 72 (1991). 

The Michigan Court of Appeals rejected petitioner’s claim:

The trial court read CJI2d 20.26 to the jury, which is located in the chapter

concerning “Sex Crimes.” It provides, “To prove this charge, the prosecutor

does not have to show that [name complainant] resisted the defendant.”

Defendant objected, arguing that the instruction minimized or eliminated the

requirement that the prosecution prove the victim was restrained or confined.

The trial court found that the instruction was “a clarifying instruction” that

did not alter the prosecution’s burden, but simply indicated that the victim had

no duty to resist defendant.

Defendant’s argument that this instruction diminished the prosecution’s

burden of proof is without merit. The instruction merely informed the jury

that the victim did not need to resist in order for defendant to be convicted of

unlawful imprisonment. The instruction did not state or imply that defendant

could be convicted even if the prosecution failed to prove an element of the

crime beyond a reasonable doubt. Indeed, the trial court instructed the jury

that it had to find that the prosecution proved each element of unlawful

imprisonment beyond a reasonable doubt. “It is well established that jurors

are presumed to follow their instructions.” People v. Graves, 458 Mich. 476,

486, 581 N.W.2d 229 (1998).

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Further, defense counsel’s use, in his opening and closing arguments, of the

words “led,” “escort[ed],” and “took” in reference to defendant’s conduct

toward the victim arguably implied that the victim consented to going into the

conference room with defendant. It was not unreasonable for the trial court

to interpret this phrasing as suggesting a lack of resistance and, therefore,

conclude that it was necessary to instruct the jury that the victim did not have

to resist in order for defendant to be convicted of unlawful imprisonment. 

The instruction clarified an issue that the trial court felt the jurors might have

questioned, and the court did not abuse its discretion by giving the instruction

because doing so fell within the range of principled outcomes.

Finally, it is irrelevant that the instruction was adapted from one found within

the “Sex Crimes” chapter of the second edition of the Michigan Criminal Jury 

Instructions. The instruction did not refer to sex crimes and the trial court did

not in any way suggest that this was a sex crime.

People v. Kosik, 303 Mich. App. at 155-57 (emphasis original).

Petitioner is not entitled to habeas relief for several reasons. 

First, the instruction did not shift the burden of proof because it did not relieve the

prosecutor of his burden of proving the elements of unlawful imprisonment beyond a

reasonable doubt. There is no requirement under the unlawful imprisonment statute that

a victim is required to resist her assailant. Because this is not an element of the offense,

the judge did not shift the burden of proof by instructing the jurors that the victim did not

have to resist. See e.g. Barco v. Tilton, 694 F. Supp. 2d 1122, 1138-39 (C.D. Cal.

2010)(state trial court’s instruction that motive was not element of crime charged did not

reduce People’s burden of proof or otherwise infect entire trial so that defendant’s

conviction violated his due process rights; trial court instructed jury on elements of crime

charged and need for concurrence of act and specific intent, as well as on proper burden

of proof and to consider instructions as whole). 

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Secondly, the Michigan Court of Appeals concluded that it was appropriate under

Michigan law to give this instruction, after defense counsel gave the impression that the

victim consented to go with petitioner. Federal courts are bound by the state courts’

interpretation of their own laws. See Mullaney v. Wilbur, 421 U.S. at 690-91. The nature

of a particular jury instruction that is given is a matter of state law, and a federal court is

not at liberty to grant a writ of habeas corpus simply because the federal court finds the

state court’s decision was incorrect under state law. Newton v. Million, 349 F.3d 873,

879 (6th Cir. 2003). Because the Michigan Court of Appeals found that it was

appropriate under Michigan law to give this instruction, this Court must defer to that

determination and cannot question it. See Seymour v. Walker, 224 F. 3d 542, 558 (6th Cir.

2000). 

Finally, even if the instruction was erroneous, it was harmless error at most

because it did not invalidate the defense theory.

The U.S. Supreme Court has long held that jury instruction claims are subject to a

harmless error analysis. Hedgpeth v. Pulido, 555 U.S. 57, 61-62 (2008)(instructing a jury

on multiple theories of guilt, one of which is invalid, is subject to harmless error review);

Neder v. U.S., 527 U.S. 1, 9-11 (1999)(erroneous jury instruction that omits element of

offense is subject to harmless-error analysis); Johnson v. U.S., 520 U.S. 461, 469

(1997)(“improperly instructing the jury on an element of the offense...is subject to

harmless-error analysis”); California v. Roy, 519 U.S. 2, 5 (1996)(error in jury

instruction that defined crime without including statement that jury was required to find

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that defendant had intent to commit or facilitate crime had to be reviewed by habeas

court under harmless error standard); Yates v. Evatt, 500 U.S. 391, 402-03

(1991)(instruction creating mandatory rebuttable presumption subject to harmless error

test); Carella v. California, 491 U.S. 263, 266 (1989)(per curiam) (instruction creating

mandatory conclusive presumption subject to harmless error); Pope v. Illinois, 481 U.S.

497, 501 (1987)(misstatement of element can be harmless error); Rose v. Clark, 478 U.S.

570, 579-80 (1986)(burden shifting instruction subject to harmless error review). 

Petitioner’s defense was that he did not intend to knowingly restrain the victim

but was merely taking her to the back room in search of shoes. Had the jury believed

petitioner’s theory, it was irrelevant whether the victim was required to resist his actions

or not. Petitioner is not entitled to relief on his third claim.

C. Claim # 4. The sentencing guidelines claim.

Petitioner claims his sentencing guidelines were improperly scored.

It is well-established that “federal habeas corpus relief does not lie for errors of

state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). Petitioner’s claim that the state

trial court incorrectly scored or calculated his sentencing guidelines range under the

Michigan Sentencing Guidelines is not a cognizable claim for federal habeas review,

because it is basically a state law claim. See Tironi v. Birkett, 252 Fed. Appx. 724, 725

(6th Cir. 2007); Howard v. White, 76 Fed. Appx. 52, 53 (6th Cir. 2003). Petitioner has no

state-created interest in having the Michigan Sentencing Guidelines applied rigidly in

determining his sentence. Payne v. Smith, 207 F. Supp. 2d 627, 640 (E.D. Mich. 2002). 

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“[I]n short, petitioner had no federal constitutional right to be sentenced within

Michigan’s guideline minimum sentence recommendations.” Doyle v. Scutt, 347 F.

Supp. 2d 474, 485 (E.D. Mich. 2004). Any error by the trial court in calculating his

guideline score would not merit habeas relief. Id. Petitioner’s claim that the state trial

court improperly departed above the correct sentencing guidelines range would thus not

entitle him to habeas relief, because such a departure does not violate any of petitioner’s

federal due process rights. Austin v. Jackson, 213 F. 3d 298, 301 (6th Cir. 2000). The

petitioner is not entitled to habeas relief on his third claim. 

IV. Conclusion

The Court will deny the petition for writ of habeas corpus. 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. “The district court must issue or deny a certificate of appealability when it enters a

final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28

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U.S.C. foll. § 2254.

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 with respect to any of the claims. The Court will also deny

petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. See

Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).

V. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED WITH PREJUDICE.

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/John Corbett O’Meara 

United States District Judge

Date: December 10, 2015

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

of record on this date, December 10, 2015, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager

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5:15-cv-11508-JCO-PTM Doc # 11 Filed 12/10/15 Pg 17 of 17 Pg ID 845