1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROSHUN ROSAS, #589633,

Petitioner,

CASE NO. 2:08-CV-13931

v. HONORABLE LAWRENCE P. ZATKOFF

KENNETH MCKEE,

Respondent.

 /

OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS,

DENYING A CERTIFICATE OF APPEALABILITY, AND

DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

Michigan prisoner Roshun Rosas (“Petitioner”) has filed a pro se petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254, asserting that he is being held in violation of his constitutional

rights. Petitioner was convicted of armed robbery, Mich. Comp. Laws § 750.529, conspiracy to

commit armed robbery, Mich. Comp. Laws § 750.157a, assault with intent to commit murder, Mich.

Comp. Laws § 750.83, resisting and obstructing a police officer, Mich. Comp. Laws §

750.479(1)(b), and two counts of possession of firearm during the commission of a felony, Mich.

Comp. Laws § 750.227b, following a jury trial in the Saginaw County Circuit Court. He was

sentenced to concurrent terms of 18-to-30 years on the armed robbery, conspiracy, and assault

convictions, consecutive terms of 15-to-24 months imprisonment on the resisting and obstructing

conviction, and two years imprisonment on the felony firearm convictions, to be served

concurrently.
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Petitioner raises claims concerning the sufficiency of the evidence, the scoring of the

sentencing guidelines, and the jury instructions in his petition. Respondent has filed an answer to

the petition contending that it should be denied. For the reasons stated, the Court finds that

Petitioner is not entitled to federal habeas relief and denies the petition. The Court also denies a

certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner’s convictions arise from an armed robbery and shooting that occurred at a car wash

where he worked in Saginaw, Michigan on March 26, 2005. The Court adopts the summary of the

trial testimony as set forth by Petitioner in his supporting brief. Those facts are as follows:

Eliza Elizalde, closed up for the day at the Firehouse Soft Car Wash where she

remained with another employee, Adam Ramon. (II-27) She identified a bank deposit

slip showing $2940 including $10 in coins and a check $8 (II-30) She also identified

the number of the bank deposit bag, 1530. (II-33)

While standing in the tunnel area of the car wash she was approached by a person

wearing all black and carrying a gun. She recognized Roshun Rosas having worked

with him and knowing the way he walked. At first she thought that it was a joke.

(II-36) He was wearing a knit cap covering part of his face but she could see his

eyes, The weapon was a long gun. (II-37) The suspect pointed it at and she pushed

it away, thinking it was a joke and told him to quit playing. She also recognized his

voice. (II-38) At this time he demanded the cell phone she was using. Then she

started taking him seriously. (II-39) He asked for the money, a statement she

repeated to Adam. Adam had the bank deposit bag with him when he came out of the

office area. At first he handed the bag to him and then pulled his hand back. (II 41)

Mr. Rosas said that it wasn't a game and Adam threw the bag to the floor towards

Mr. Rosas' foot. (II-42) Mr. Rosas picked up the bag and put it in his pocket. (II-42)

Every now and again in the past Mr. Rosas would ask her about the money

procedure. At times Mr. Rosas would be picked up by a friend in a white Blazer.

(II-45, 46) After taking the money Mr. Rosas ordered the two people into the

mechanical room. (II-47) In court she identified the gun which he had pointed at her,

particularly the barrel and the scope. When she and Adam entered the mechanical

room Adam turned on the light. (II-49) Mr. Rosas then turned it off. (II-50) He

appeared to be frustrated that they were not taking him seriously. (II-51) When

Adam turned the light switch he asked Mr. Rosas if that was a paintball gun and
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pushed it away. (II-53) At the time the gun was pointing at Adam's chest. When Mr.

Rosas jerked the gun back towards Adam the door shut and she heard a shot. (II-55)

Just before the shots were fired Mr. Rosas said "You still think this is a game."

(II-56) Adam opened the door and walked into the room and she asked him if it was

a fake gun. He lifted up the shirt and she saw blood coming out and getting on the

floor and he asked her to call for help, handing her his cell phone. She called 911.

(II-57) By this time the suspect had left with her cell phone and the money bag.

(II-58) She saw nothing to indicate that the shot was fired accidentally. (II-59) When

Adam lifted his shirt she saw he had been injured on the right side between his

stomach and where his breast would end. (II-60)

Sgt. William Masica had been dispatched to a parking complaint but as he was

driving he saw a white GMC Jimmy parked on the curb facing the opposite direction

he was traveling. It had its hazard lights flashing so the officer pulled in behind to

assess the situation. The driver had problems keeping the vehicle running but he was

able to get some assistance for himself. The witness described him as a Hispanic

male, approximately 20 years old, stocky build. The officer noted the license plate.

(II-83) Later, he learned the identity of the driver as Nicholas Moncivais and

identified his picture in court. His contact with the driver was about 9 o'clock. (II-85)

When the officer left he received another dispatch regarding an armed robbery at the

car wash (II-86) where he found an injured employee on the floor having difficulty

breathing. (II-89) When he passed the area where the white Jimmy had been he

noticed it was gone. (II-87) When he spoke to Adam he was told that he was sure it

was Roshun Rosas, another employee. (II-90) A canine unit found the weapon in a

grassy area located nearby. The tracks in the snow started right behind the car wash.

(II-94) The weapon was a .22 caliber rifle (II-94) loaded with 26 bullets in the

magazine and 1 in the chamber. (II-97) The officer had an intuitive feeling that the

vehicle he tried to assist was involved in a robbery, (II-101) prompting the dispatcher

to rebroadcast the description and plate number. (II-10l)

Officer Dean Kaufman, who was patrol, ran the number through his computer which

led to an address where he positioned himself. (II-117) He observed a vehicle with

the same description as given by central dispatch. (II-I19) As the vehicle pulled into

a driveway at the address indicated (II-119) the officer activated his overhead lights

and exited the vehicle. (II-121) When he walked around the house he saw a person

running. (II-121) He chased him and when the suspect jumped over a fence gate,

large sums of money came spinning out from underneath his clothing; (II-123) and

continued to spin out as he ran. Eventually, he was taken into custody by other

officers and was identified in court (II-124) as Mr. Rosas. (II-138)

The medical testimony was that Adam sustained a gunshot wound to the right chest

(II-145) causing a lung collapse. (II-147) He was in a possibly life-threatening

situation because he sustained injury to two separate organ cavities as well as his

liver. (II-151) The bullet remains in the bony aspect of his spine. (II-153)
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Officer Stephan Woodcock learned that Officer Kaufman had spotted an individual

running and he assisted (II-163) and caught the subject whom he identified in court

as Mr. Rosas. (II-l66) When searched bank deposit slips in the amount of $2940 were

found on his person (II-167, 168) together with one $100 bill, two $50 bills and 99

$1 bills. (11-168) The officer also seized a head cloth, or do rag and a batting glove.

(II-169) Another batting glove was found on the ground. (III-6)

Sgt. Brian Lipe went to the area of the 1000 block of North Granger (III-7)

responding to information put out by central dispatch that a vehicle bearing the

identified license plate came back to that address and Officer Kaufman had followed

it to that driveway. (III-8) When he arrived he saw a black male wearing dark

clothing running towards him. When the subject observed the witness the suspect ran

in the other direction. (III-10) The officer also saw another individual on the side of

the garage (III-10) who was not located that night. (III-11) The person he chased was

arrested and identified as Mr. Rosas. (III-12) This officer also saw money dropping

during the chase. (III-14) While chasing Mr. Rosas he saw him reach into his pants

and pullout money which he dropped on the sidewalk. (III-15)

Nicholas Moncivais' sister, Jacqueline Moncivais, said she knew Mr. Rosas as a

friend of Nicholas and identified a picture of her brother. (III-23) The day in question

she lived at 1021 North Granger with her mother, daughter and Nicholas. (III-24)

The police showed her a videotape of a police officer talking to someone in a vehicle

which she recognized as a white vehicle looking like her mother's Jimmy and she

recognized a voice on the tape as that of Nicholas. (III-26) When she arrived home

the white Jimmy was in the driveway. Nicholas was permitted to drive this vehicle.

(III-27) On the day in question it was in a running condition. (III-28)

Adam Ramon confirmed the testimony of Eliza Elizalde (III-34) et seq. including the

fact that when he gave him the money he recognized Mr. Rosas by his eyes and from

working with him for six months. (III-38) When he was in the mechanical room he

saw the weapon as a long gun with a scope. (III-40) He repeated the incident of

turning the light on and off (III-41) and that when the witness asked Mr. Rosas if it

was a paintball gun (III-42) the gun was pointed at his head. Mr. Rosas then took a

step back and lowered the gun to chest level. Adam didn't remember grabbing or

touching the gun; all he remembered was Mr. Rosas saying "no" to the question

(III-43) and he felt the hit and fell to the ground. (III-44)

Sgt. Jack Doyle found money and a bank bag on the chase route. (III-66) He counted

the money that had been seized along the chase route with the stolen money and they

were exactly the same. (III-70) He found a black hood, black hat, the stolen check

and a .22 bullet in the white Jimmy. (III-71)

Pet. Brf., pp. 1-6.
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When the prosecution rested, defense counsel moved for a directed verdict, but the trial court

denied the motion. Petitioner did not testify at trial nor offer witnesses in his defense. At the close

of trial, the court instructed the jury on the charged offenses, as well as the lesser offense of assault

with intent to commit great bodily harm, but denied defense counsel’s request for an instruction on

the lesser offense of felonious assault. Following deliberations, the jury found Petitioner guilty of

the charged offenses. The trial court subsequently held a sentencing hearing and sentenced

Petitioner as previously set forth.

Petitioner thereafter filed an appeal of right with the Michigan Court of Appeals raising the

same claims contained in the present petition. The court affirmed his convictions and sentences.

See People v. Rosas, No. 267866, 2007 WL 1760920 (Mich. Ct. App. June 19, 2007) (unpublished).

Petitioner filed an application for leave to appeal with the Michigan Supreme Court which was

denied. See People v. Rosas, 480 Mich. 924, 740 N.W.2d 288 (2007).

Petitioner then filed the present habeas petition, raising the following claims:

I. He was deprived of his Ams V and XIV rights of due process to be free of

conviction of conspiracy in the absence of proof beyond a reasonable doubt.

II. He was deprived of his Ams V and XIV rights of due process when OV8 was

incorrectly applied.

III. He was deprived of his Ams V and XIV rights of due process when the trial

court denied his request for a lesser included offense instruction.

Respondent has filed an answer to the petition contending that it should be denied for lack of merit.

III. Standard of Review

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

codified at 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed his habeas petition

after the AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA
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provides:

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

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

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

adjudication of the claim--

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

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

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

the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. §2254(d) (1996).

 “A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a rule that

contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts

that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless

arrives at a result different from [this] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003)

(per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535

U.S. 685, 694 (2002). “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal

habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from

[the Supreme] Court but unreasonably applies that principle to the facts’ of petitioner’s case.”

Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413)); see also Bell, 535

U.S. at 694. However, “[i]n order for a federal court to find a state court’s application of [Supreme

Court] precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or

erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins, 539

U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409.

Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the
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state court’s decision comports with clearly established federal law as determined by the Supreme

Court at the time the state court renders its decision. See Williams, 529 U.S. at 412; see also

Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Section 2254(d) “does not require citation of

[Supreme Court] cases–indeed, it does not even require awareness of [Supreme Court] cases, so

long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v.

Packer, 537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. While the requirements of “clearly

established law” are to be determined solely by the holdings of the Supreme Court, the decisions

of lower federal courts are useful in assessing the reasonableness of the state court’s resolution of

an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F.

Supp. 354, 359 (E.D. Mich. 2002).

Additionally, §2254(e)(1) requires that a federal habeas court presume the correctness of

state court factual determinations. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption

only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

IV. Analysis

A. Insufficient Evidence Claim

Petitioner first asserts that he is entitled to habeas relief because the prosecution failed to

present sufficient evidence to support his conviction for conspiracy to commit armed robbery.

“[T]he 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). The standard of review for a sufficiency of the evidence

challenge must focus on 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
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a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In the

habeas context, “[t]he Jackson standard must be applied ‘with explicit reference to the substantive

elements of the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351

(6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n. 16)). “A reviewing court does not reweigh the

evidence or redetermine the credibility of the witnesses whose demeanor has been observed by the

trial court.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v.

Lonberger, 459 U.S. 422, 434 (1983)). Accordingly, “[t]he mere existence of sufficient evidence

to convict . . . defeats a petitioner’s claim.” Matthews, 319 F.3d at 788-89.

Under Michigan law, a conspiracy involves the mutual agreement or understanding, express

or implied, between two or more persons to commit a criminal act or a legal act by unlawful means.

See Mich. Comp. Laws § 750.157a; People v. Anderson, 418 Mich. 31, 36, 340 N.W.2d 634 (1983).

Conspiracy may be established by circumstantial evidence and may be based on inference. See

People v. McKenzie, 206 Mich. App. 425, 428, 522 N.W.2d 661 (1994). Direct proof of agreement

is not required, nor is it necessary that a formal agreement be proven. It is sufficient if the

circumstances, acts, and conduct of the parties establish an agreement in fact. See People v. Justice

(after remand), 454 Mich. 334, 347, 562 N.W.2d 652 (1997). To sustain a conviction for

conspiracy to commit armed robbery, the prosecution must prove that defendant knowingly entered

into an agreement with at least one other person to commit armed robbery. See People v. Barker,

No. 253403, 2005 WL 562809, at *2 (Mich. App. March 10, 2005). The elements of armed

robbery are: (1) an assault, (2) a felonious taking of property from the victim’s presence or person,

(3) while the defendant is armed with a weapon described in the statute. See Mich. Comp. Laws

§ 750.529; People v. Allen, 201 Mich. App. 98, 100, 505 N.W.2d 869 (1993).
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Applying the Jackson standard to Petitioner’s claim that the trial court erred in denying a

directed verdict, the Michigan Court of Appeals concluded that the prosecution presented sufficient

evidence to support Petitioner’s conspiracy conviction. The court explained in relevant part:

At trial, an officer testified that, on the night of the armed robbery, he observed a

white Jimmy parked on the side of the road near the site of the robbery with its

emergency lights flashing. The officer further testified that he pulled around to see

if the driver needed assistance. The officer stated that the driver, who he later

learned was Moncivais, told him that the Jimmy would not stay running and that he

had already arranged for help. Less than one minute after leaving the location where

the Jimmy was parked, the officer received a dispatch regarding an armed robbery

at a car wash near the location where the Jimmy had been parked. The officer said

he returned to the location, but the Jimmy was no longer there. Testimony also

established that Moncivais and defendant were friends and that the Jimmy belonged

to Moncivais' mother. In addition, officers found items related to the robbery in the

Jimmy, which was parked at Moncivais' residence, approximately 15 minutes after

the robbery. Finally, there was testimony that the Jimmy had had engine trouble in

the recent past, but that the engine had been repaired and was in running condition

at the time of the robbery.

Based on this evidence, a rational jury could conclude that defendant escaped from

the scene of the robbery in Moncivais' mother's Jimmy. In addition, the testimony

clearly established that Moncivais was with the Jimmy shortly before the armed

robbery occurred. Hence, a rational jury could conclude that Moncivais was waiting

for defendant and drove defendant away from the scene. Further, a rational jury

could conclude that Moncivais deliberately misled the officer who stopped to assist

him because he knew defendant was robbing the car wash and had agreed to assist

defendant in that robbery. Consequently, there was sufficient evidence from which

a rational jury could conclude that defendant had conspired with Moncivais to rob

the car wash.

Rosas, 2007 WL 1760920 at *1-2.

Having reviewed the record, the Court concludes that the Michigan Court of Appeals’

decision is consistent with Jackson and constitutes a reasonable application of the law and the facts.

The prosecution presented sufficient evidence to support Petitioner’s conspiracy conviction. The

evidence, viewed in a light favorable to the prosecution, established that Petitioner and Moncivais

agreed to commit the armed robbery, worked together to accomplish that task, and fled the scene
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together following the robbery. The testimony, including that of the victims, also indicated that

Petitioner was the person who committed the armed robbery.

Petitioner essentially challenges the inferences the jury drew from the testimony presented

during trial. However, it is the job of the fact-finder at trial, not a federal habeas court, to resolve

evidentiary conflicts. See Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir.

2002); Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A federal habeas corpus court faced

with a record of historical facts that supports conflicting inferences must presume - even if it does

not affirmatively appear in the record - that the trier of fact resolved any such conflicts in favor of

the prosecution, and must defer to that resolution.”). The conduct of Petitioner and Moncivais and

the circumstances of this case supported the jury’s verdict of guilt beyond a reasonable doubt on

the conspiracy charge. Habeas relief is not warranted on this claim.

B. Sentencing Claim

Petitioner next asserts that he is entitled to habeas relief because the trial court erred in

scoring offense variable 8 (victim asportation or captivity) of the Michigan sentencing guidelines.

Claims which arise out of a state trial court’s sentencing decision are not normally cognizable upon

habeas review, unless the petitioner can show that the sentence imposed exceeds the statutory limits

or is wholly unauthorized by law. See Lucey v. Lavigne, 185 F. Supp. 2d 741, 745 (E.D. Mich.

2001). Petitioner’s sentences are within the statutory maximums. See Mich. Comp. Laws §§

750.529, 750.157a, 750.83, 750.479(1)(b), 750.227b. Sentences imposed within the statutory

limits are generally not subject to federal habeas review. See Townsend v. Burke, 334 U.S. 736,

741 (1948); Lucey, 185 F. Supp. 2d at 745; Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich.

1999).
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Petitioner’s assertion that his sentence is invalid because the trial court incorrectly scored

an offense variable under the state sentencing guidelines fails to state a claim for federal habeas

relief because it is a state-law claim. See Austin v. Jackson, 231 F.3d 298, 300, 301 (6th Cir. 2000)

(citing Pulley v. Harris, 465 U.S. 27, 41 (1984)); McPhail v. Renico, 412 F. Supp. 2d 647, 656

(E.D. Mich. 2006). Moreover, the trial court found that there was no sentencing error. See Rosas,

2007 WL 1760920 at *2. That determination is entitled to deference on habeas review. State

courts are the final arbiters of state law and federal courts will not intervene in such matters. See

Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002).

Habeas relief is not warranted on this state law claim.

Petitioner is also not entitled to relief on any claim that his sentence was based upon

inaccurate information. A sentence may violate federal due process if it is carelessly or deliberately

pronounced on an extensive and materially false foundation, which the defendant had no

opportunity to correct. See Townsend, 334 U.S. at 741; see also United States v. Tucker, 404 U.S.

443, 447 (1972); United States v. Sammons, 918 F.2d 592, 603 (6th Cir. 1990) (criminal defendant

must have a meaningful opportunity to rebut contested information at sentencing)). To prevail on

such a claim, the petitioner must show that the trial judge relied on the allegedly false information.

See United States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984); Draughn v Jabe, 803 F. Supp. 70,

81 (E.D. Mich. 1992). Petitioner has made no such showing. The record reveals that the trial court

considered the circumstances of the crime, the pre-sentence report, and other permissible factors

at sentencing. Petitioner had an opportunity to contest the accuracy of the reports, the scoring of

the guidelines, and other sentencing matters. Petitioner has not shown that the trial court relied

upon materially false or inaccurate information in imposing his sentence, which he had no
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The Supreme Court’s holding in Beck was that the death penalty may not be imposed for a

capital offense if the jury was not permitted to consider a verdict on a lesser included non-capital

offense which would have been supported by the evidence.

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opportunity to correct. Habeas relief is not warranted on such a basis.

C. Jury Instruction Claim

Lastly, Petitioner asserts that he is entitled to habeas relief because the trial court refused

to instruct the jury on the lesser offense of felonious assault with respect to the assault with intent

to murder charge. The United States Supreme Court has declined to decide whether due process

requires the giving of jury instructions on lesser included offenses in non-capital cases. See Beck

v. Alabama, 447 U.S. 625, 638 n.14 (1980).1

 In Hopper v. Evans, 456 U.S. 605, 611 (1982), the

Supreme Court ruled that a capital defendant is entitled to a lesser included offense instruction only

when there is evidence to support it. More recently, the Supreme Court held that state courts are

not constitutionally required to instruct juries in capital cases on crimes which are not lesser

included offenses of the charged crime. See Hopkins v. Reeves, 524 U.S. 88, 90-91 (1998).

The United States Court of Appeals for the Sixth Circuit has interpreted Beck to mean that

“the Constitution does not require a lesser-included offense instruction in non-capital cases.”

Campbell v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001) (citing Bagby v. Sowders, 894 F.2d 792, 795-

97 (6th Cir 1990) (en banc)); see also Scott v. Elo, 302 F.3d 598, 606 (6th Cir. 2002); Adams v.

Smith, 280 F. Supp. 2d 704, 717 (E.D. Mich. 2003). Even in capital cases, there is no constitutional

right to a jury instruction if the requested charge does not satisfy the legal definition of a lesser

included offense. See Hopkins, supra. Under Michigan law, felonious assault is not a lesser

included offense of assault with the intent to murder. See People v. Otterbridge, 477 Mich. 875,

721 N.W.2d 595 (2006). Accordingly, the Court concludes that Petitioner’s claim regarding the
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Moreover, even if this claim were cognizable and the trial court were to have erred, any such

error would have been harmless under the standard set forth in Brecht v. Abrahamson, 507 U.S. 619,

637 (1993). The lack of a jury instruction on felonious assault could not have had a substantial and

injurious effect on the verdict because the jurors rejected the lesser included offense of assault with

intent to commit great bodily harm, which is more the serious charge. 

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trial court’s refusal to instruct the jury on felonious assault is not cognizable on federal habeas

review.2

 See Clemmons v. Bell, No. 08-CV-11359, 2009 WL 3300034, *8 (E.D. Mich. Oct. 14,

2009) (denying relief on same claim). Habeas relief is not warranted on this claim.

V. Conclusion

For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas

relief on the claims contained in his petition and the petition must be denied.

Before Petitioner may appeal the Court’s decision, a certificate of appealability must issue.

See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). When a district court rejects a habeas claim on the merits, the substantial showing

threshold is met if the petitioner demonstrates that reasonable jurists would find the district court’s

assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473,

484-85 (2000). “A petitioner satisfies this standard by demonstrating that . . . jurists could conclude

the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, a district court may not conduct a

full merits review, but must limit its examination to a threshold inquiry into the underlying merit

of the claims. Id. at 336-37.

Having considered the matter, the Court concludes that Petitioner has failed to make a

substantial showing of the denial of a constitutional right as to his habeas claims. No certificate
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of appealability is warranted in this case nor should Petitioner be granted leave to proceed in forma

pauperis on appeal as any appeal would be frivolous and cannot be taken in good faith. See Fed.

R. App. P. 24(a).

Accordingly; IT IS ORDERED that the petition for a writ of habeas corpus is DENIED

and DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED and leave to

proceed in forma pauperis on appeal is DENIED.

S/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: June 28, 2010

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of this Order was served upon the attorneys of record

by electronic or U.S. mail on June 28, 2010.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290