UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DENNIS FLUCKES, # 343656

Petitioner,

v.

DEBRA SCUTT,

Respondent. 

 /

Case No. 08-cv-13938

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS 

CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner Dennis Fluckes has filed a petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. He challenges on two grounds his conviction in state court of

felonious assault: 1) ineffective assistance of trial counsel; and 2) insufficiency of the

evidence. For the reasons stated below, the Court will deny the petition.

BACKGROUND FACTS

Fluckes’s conviction arose out of an altercation at his home on June 27, 2005. The

following testimony was offered at trial.

Robyn Guillette, Fluckes’s step-daughter, testified that she arrived at her mother and

step-father’s home, along with her sister (Renee Gillette), Renee’s boyfriend, and Robyn’s

two year-old daughter, to use the swimming pool. Trial Tr. 120. While inside, just after

arriving, Robyn heard her mother, Renee, and Fluckes arguing and yelling outside. Id. at

122. Robyn went outside to see what was the matter. Id. at 123-24. She heard Fluckes

and Renee call each other a “bitch.” Id. at 124-25. Fluckes then picked up a golf club, held

it in the air, and told those present that, “people were going to learn to respect him in his

house no matter what he had to do,” and that if he were not respected, he would “have to
2

take our heads off.” Id. at 126-27. Fluckes was standing about seven feet from Robyn and

three feet from Renee when he said this. Id. at 128. Robyn testified that Renee was not

holding any object in her hands at the time. Id. at 125.

Robyn went inside to call the police. Id. at 132. After doing so, she came back

outside and saw Renee screaming, standing beside Robyn’s car, holding her leg. Id. at

135. Renee told Robyn that Fluckes had just slammed the car door on her leg. Id. at 136.

Robyn testified that, again, Renee was not holding any object in her hands at the time. Id.

at 137. Robyn positioned herself between Renee and Fluckes and told Fluckes – who was

still holding the golf club – that he was not going to hit anyone anymore. Id. at 136-37. 

Fluckes responded that he would “crack [Robyn’s] head too if you don’t like what goes on

in my house.” Id. at 138. Fluckes then swung the golf club at Robyn’s head “like you’d

swing a baseball bat.” Id. at 139. Afraid Fluckes was going to hit her, Robyn leaned back

to avoid the club. Id. at 141. She had nothing in her hands at the time, and had not

touched Fluckes. Id. Fluckes’s bother, Jeremiah, was able to remove Fluckes from the

situation, at which time Robyn went back inside to call the police for a second time. Id. at

143. 

While on the phone with the police, Robyn looked for “something to . . . maybe stop

[Fluckes].” Id. at 144. She picked up a small kitchen knife to bring outside, but her mother

prevented her from leaving the house with it. Id. at 154. When Robyn came back outside,

Fluckes was sitting in his wife’s truck, still yelling at Renee and Robyn. He said he was “not

to be played with. He’s not for any games and he said I’ll kill all you bitches if I have to.”

Id. at 146. When Robyn told him to wait a couple of minutes (for the police to arrive),

Fluckes got out of the truck and quickly walked toward her, holding the golf club like a

baseball bat. Id. at 147-48. Around this time, the police arrived and ordered Fluckes to
3

drop the golf club, which he eventually did. Id. at 149. 

Officer Robert LeCouffe testified that he was dispatched to Fluckes’s home the day

of the altercation. Id. at 178. When he arrived, he saw Fluckes swinging a golf club back

and forth, like a baseball bat, in the direction of “two to three females” in the yard. Id. at

180-81. The women were trying to hide behind a car. Id. at 182. LeCouffe ordered

Fluckes to drop the golf club. Fluckes told LeCouffe he was not the aggressor and was just

trying to defend himself. Id. at 183. LeCouffe testified that he believed Fluckes to be the

aggressor based on what he saw when he arrived at the home. Id. He arrested Fluckes

for felonious assault. Id. 

Officer Patrick Theriault testified that he was dispatched along with Officer LeCouffe.

Id. at 192. He also witnessed Fluckes swinging the golf club like a baseball bat in the

direction of two women, who were trying to retreat behind a parked car. Id. at 194-95.

Theriault assisted in arresting Fluckes and searching his person before transporting

Fluckes to the police station. Id. at 197. 

When the prosecution rested its case, Fluckes moved for a directed verdict, arguing

that the prosecution failed to prove that Fluckes acted with intent. Id. at 203. The court

denied the motion, and the defense began its case. Id. 

Fluckes’s wife, Denise, testified that Renee, Robyn, and Fluckes were arguing

outside. Id. at 213. She witnessed Renee throw a child’s scooter and a table toward

Fluckes, and saw Fluckes pick up a golf club. Id. at 213-14. She testified that she took the

kitchen knife away from Robyn while in the home. Id. at 217, 224. She did not see Robyn

and Renee hide behind a car to avoid being hit with a golf club. Id. at 218, 224

Jeremiah Barlow, Fluckes’s brother, testified that he lived with Fluckes and Denise,

and was present during the altercation. Id. at 227. He stated that he tried to get Fluckes
4

to leave the home at that time to avoid the situation. Id. at 228. He also stated that Renee

and Robyn threw a children’s scooter and a table in Fluckes’s direction. Id. at 230. He

testified that he never saw Fluckes swing a golf club at any person. Id. at 231-32. 

When the defense rested, defense counsel requested that the jury be instructed on

the alternative, lesser included offense, of simple assault, but the request was denied as

the court found no evidence to support the instruction. Id. at 269.

The jury returned a verdict of guilt after no more than 30 minutes of deliberation. Id.

at 268-69.

Fluckes was sentenced to 18 months to 15 years in prison for the felonious assault

and for being a fourth habitual defender. 

PROCEDURAL HISTORY

Petitioner filed a delayed application for leave to appeal his conviction in the

Michigan Court of Appeals, asserting the following claims:

I. Mr. Fluckes was denied a fair trial, due process and effective

assistance [of] counsel when the jury never considered Mr. Fluckes’

self-defense theory when defense counsel did not request, nor did the

trial court provide the jury with a self-defense instruction when the

evidence supported this instruction, which violated Mr. Fluckes’

federal and state constitution rights, U.S. Amend. IV, V, VI, XIV; Mich

Const 1963, Art. 1, Sec. 17, 20.

IA. When Mr. Fluckes’ trial attorney did not request a jury instruction on

self-defense when the evidence supported it with Mr. Fluckes [sic]

own statement to the police and his witnesses, he was denied

effective assistance of counsel under the Sixth Amendment of US

Const, Mich Const 1963 Art 1, Sec 17, 20.

II. Since there was insufficient evidence to convict Mr. Fluckes of

felonious [assault] because he did not intend to assault the

complainant and where he acted in self-defense, this court must

reverse his conviction pursuant to the federal and state constitutions,

US Amend V, VI, XIV; Mich Const, Art 1, Sec 17, 20 and People v.

Hampton, 407 Mich 354 (1979), and In Re Winship, 397 US 3587

(1970).
5

The Michigan Court of Appeals denied the delayed application in a summary order

“for lack of merit in the grounds presented.” People v. Fluckes, No. 274203 (Mich. Ct. App.

May, 11 2007). Fluckes sought leave to appeal in the Michigan Supreme Court, which

denied the application because it was “not persuaded that the questions presented should

be reviewed by this Court.” People v. Fluckes, No. 134203 (Mich. Sept. 10, 2007).

Fluckes then filed the instant petition, presenting the following claims: 1) trial counsel

was ineffective for failing to present a theory of self defense and for failing to request a jury

instruction on self-defense; and 2) the evidence was insufficient to support the verdict.

ANALYSIS

I. Legal Standard

“On collateral review, the amount of deference paid to a state court varies based on

the nature of that court’s ruling.” Miller v. Stoval, 608 F.3d 913, 918 (6th Cir. 2010). Under

the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), where a state court

adjudicates a claim on the merits, a federal court can grant the writ only if the state court’s

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 proceedings. 

28 U.S.C. § 2254(d); see Miller, 608 F.3d at 918.

When a state court does not address the merits of a claim properly raised in a

habeas petition, however, AEDPA’s deferential standard of review does not apply. Maples

v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003) (citing Williams v. Coyle, 260 F.3d 684, 706

(6th Cir. 2001)). Instead, a federal habeas court applies pre-AEDPA standards, and
6

reviews de novo questions of law and mixed questions of fact and law. Id. A state court’s

factual findings are presumed true and must be shown false by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

Without argument, Respondent presumes AEDPA’s deferential standard of review

applies here. The Court disagrees. The Michigan Court of Appeals summarily dismissed

Fluckes’s delayed application for appeal “for lack of merit in the grounds presented.” The

Michigan Supreme Court denied Fluckes’s application for leave to appeal in a one sentence

summary order. As the Supreme Court recently stated in Halbert v. Michigan, 545 U.S.

605 (2005), while the phrase “lack of merit in the grounds presented” “necessarily entails

some evaluation of the merits of the applicant’s claims[,]” the disposition “may not be

equivalent to a ‘final decision’ on the merits, i.e., the disposition may simply signal that the

court found the matters asserted unworthy of the expenditure of further judicial resources.”

Id. at 618. 

The Sixth Circuit recently considered the meaning of a decision from the Michigan

Court of Appeals dismissing “for lack of merit in the grounds presented” an application for

delayed appeal that is later followed by a denial of leave to appeal by the Michigan

Supreme Court for not being “persuaded that the questions presented should be reviewed

by this Court.” Following and making more express a portion of its earlier decision in

McAdoo v. Elo, 365 F.3d 487, 498 (6th Cir. 2004), and rejecting an attempt to unduly

expand statements made by the Supreme Court in Halbert, the Sixth Circuit in Dorn v.

Lafler, 601 F.3d 439, 443 (6th Cir. 2010) held that, “[b]ecause the state court may have

various reasons for denying an application for leave to appeal ‘for lack of merit in the

grounds presented,’” none of which are made express in a summary order, federal courts

cannot “discern from that language alone whether that decision was based on the merits
7

of the case” and cannot “conclude that [the decision] was an ‘adjudication on the merits’

pursuant to 28 U.S.C. § 2254(d).” Id. Applying the pre-ADEPA standard of review, the

Sixth Circuit reviewed the petitioner’s properly presented habeas claim de novo. Id.

In light of Dorn and McAdoo, and because the Court cannot conclude here that the

Michigan Court of Appeals or Supreme Court adjudicated Fluckes’s claims on the merits,

the Court must review his properly presented habeas claims de novo.

II. Analysis

Fluckes raises two claims in his petition. He argues first that he was denied the

effective assistance of counsel and a fair trial when his court-appointed attorney failed to

develop a theory of self-defense at trial, and then failed to request a jury instruction on the

defense. He argues second that the evidence was insufficient to support the jury’s verdict.

A. Ineffective Assistance of Counsel

1. Clearly Established Law

The Sixth Amendment to the U.S. Constitution provides, “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his

defence.” U.S. Const. amend. VI. This specific right protects the more general and

fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 668, 684 (1984).

The Constitution defines the basic elements of the fair trial guaranteed by the Due Process

Clauses largely through the Sixth Amendment. Id. at 685. The right to counsel plays a

“crucial role” in ensuring a fair trial because of the adversarial nature of our justice system.

Id. Accordingly, the right to counsel includes not only the right to the presence at trial of

a “person who happens to be a lawyer,” but also the right to the “effective assistance of

counsel.” Id. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14 (1970)).
8

A claim that counsel was so ineffective as to render the trial unfair and the conviction

infirm has two components. Id. at 687. First, the defendant must show that counsel’s

performance was “deficient,” meaning that “counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id. Second, the defendant must show that the deficient performance prejudiced the

defense, meaning that “counsel’s errors were so serious as to deprive the defendant of a

fair trial, a trial whose result is reliable.” Id.

With respect to the performance prong, “a court must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance.”

Id. at 689. The petitioner must “overcome the strong presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’” Id.

(citation omitted). In attempting to do so, the petitioner must identify the acts or omissions

allegedly not the result of reasonable professional judgment. Id. at 690. The court must

then determine whether, “in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance.” Id. 

With respect to the prejudice prong, the petitioner must “affirmatively prove” that his

attorney’s errors at trial “actually had an adverse effect on the defense.” Id. at 693. He

must show more than that the error had some “conceivable effect on the outcome of the

proceeding,” but less than that counsel’s deficient conduct “more likely than not altered the

outcome of the case.” Id. Rather, the petitioner must show that there is “a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. The central question is “whether there is a

reasonable probability that, absent the errors, the factfinder would have had a reasonable
1

 Although defense counsel mentioned in opening statements that “Mr. Fluckes

probably had to defend himself,” Trial Tr. 113, and the prosecutor briefly alluded to selfdefense in his closing, see id. at 242, there was never a development of the theory at trial,

and defense counsel never argued in closing that Fluckes acted in self-defense or

requested an instruction on the elements of the defense. Rather, the defense theory was

that the prosecution’s witnesses should not be believed, and that Fluckes never swung the

golf club at Robyn.

9

doubt respecting guilt.” Id. at 695. A verdict that is strongly supported by the evidence is

less likely to have been affected by errors than one with little support for it. See id. at 696.

2. Application

Fluckes contends that his lawyer was ineffective for failing to present a theory of

self-defense and for later failing to request a jury instruction on the defense. 

Fluckes’s claim fails on both Strickland prongs. With respect to the performance

prong, a self-defense theory was not a viable defense in this case, so counsel was not

deficient in failing to raise the defense and request an instruction.1 “At common law, the

affirmative defense of self-defense justifies otherwise punishable criminal conduct, usually

the killing of another person, ‘if the defendant honestly and reasonably believes his life is

in imminent danger or that there is a threat of serious bodily harm and that it is necessary

to exercise deadly force to prevent such harm to himself.’” People v. Dupree, 486 Mich.

693, 707 (2010) (quoting People v. Riddle, 467 Mich. 116, 127 (2002)). Generally

speaking, 

“[o]ne who is not the aggressor in an encounter is justified in using a

reasonable amount of force against his adversary when he reasonably

believes (a) that he is in immediate danger of unlawful bodily harm from his

adversary and (b) that the use of such force is necessary to avoid this

danger.”

Id. (quoting 2 LaFave, Substantive Criminal Law (2d ed.), § 10.4, p. 142).
2

 There is no evidence that the scooter and table, even if they were thrown, ever hit

Fluckes.

3

 Fluckes is not entitled to an evidentiary hearing to demonstrate what facts he could

have produced in support of a theory of self-defense, because he failed to develop these

facts in his state court proceedings. See 28 U.S.C. § 2254(e)(2). A petitioner “has failed

to develop” a factual basis of a claim in state court where there is “a lack of diligence, or

some greater fault attributable to the prisoner or the prisoner’s counsel.” Michael Williams

v. Taylor, 529 U.S. 420, 432 (2000). Diligence requires that the prisoner “at a minimum,

seek an evidentiary hearing in state court in the manner prescribed by state law.” Id. at

437. In Michigan, to develop the factual basis for a claim not already developed, a

10

The criminal charge in this case arose out of Fluckes’s decision to swing a golf club

at Robyn when she was standing between him and Renee. See Trial Tr. 109 (“[T]he

defendant took this golf club and swung it at Robyn’s head and . . . she went back. . . .

Ladies and gentleman, that is what is called a felonious assault.“); id. at 243 (“The most

important [felonious assault,] which is the one which he is charged with[,] is when Robyn

steps in between him [and Renee] and says as she’s crying telling you you’re not hitting

anybody. You’re not hitting my sister.” (emphasis added)). This event occurred after

Renee and Robyn allegedly threw the scooter and table in Fluckes’s direction.2

 Robyn was

standing between Fluckes and Renee with nothing in her hand. Id. at 141. Robyn testified

that she told Fluckes that he was not going to hit anyone anymore. Id. at 136-37. After

Fluckes responded that he would “crack [Robyn’s] head too if you don’t like what goes on

in my house,” id. at 138, he then swung the club at Robyn’s head “like you’d swing a

baseball bat.” Id. at 139. Robyn leaned back to avoid being hit. She testified that she was

afraid Fluckes was going to hit her. Id. at 141. In light of this evidence, there is nothing to

support Fluckes’s claim that he had a viable theory of self-defense. Specifically, there is

no evidence upon which a jury could conclude that Fluckes swung the club at Robyn’s head

only because he “honestly and reasonably believed” that doing so was necessary to

prevent his imminent death or serious bodily harm.3
defendant must file a motion for a new trial and evidentiary hearing in the trial court or a

motion to remand in the court of appeals. See People v. Ginther, 390 Mich. 436, 443-44

(1973). Although Fluckes briefly asked in the last sentences of his applications that the

Michigan appellate courts remand his case for a hearing to develop additional facts to

support the claims raised therein, the requests were not made in “the manner prescribed

by state law.” Michigan Court Rule 7.211(C)(1) requires that a motion for remand be

supported by an affidavit or offer of proof regarding the facts to be established at a hearing,

neither of which Fluckes included in his applications. See Mich. Ct. R. 7.211(C)(1).

Accordingly, he is barred by § 2254(e)(2) from obtaining an evidentiary hearing in federal

court. See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 871 n.3 (E.D. Mich. 2010)

(finding that petitioner failed to develop the factual basis for his habeas claim where he

failed to file a motion for an evidentiary hearing in state proceedings, and for that reason,

denying request for evidentiary hearing); Ware v. Harry, 636 F. Supp. 2d 574, 593 (E.D.

Mich. 2008) (finding petitioner was entitled to evidentiary hearing where he filed motion to

remand in Michigan Court of Appeals and supported motion with affidavit detailing

conversations with counsel regarding trial strategy, and state court denied motion on

merits, not procedural grounds).

11

To be sure, Robyn did testify that she attempted to bring a knife outside to persuade

Fluckes to calm down. But Fluckes never saw the knife, as Denise prevented Robyn from

ever bringing it outside. Robyn’s brief possession of a kitchen knife inside the home, which

Fluckes never saw, would not have supported a self-defense theory.

Precisely because of the lack of evidence supporting a theory of self-defense,

counsel’s decision not to develop the theory was a sound trial strategy. To invoke the

theory, Fluckes would have had to admit that he swung the club at Robyn, and then argued

that he did so because he reasonably and honestly believed he was in danger of imminent,

unlawful use of force by Robyn. See Dupree, 486 Mich. at 707 (“A finding that a defendant

acted in justifiable self-defense necessarily requires a finding that the defendant acted

intentionally, but that the circumstances justified his actions.”). Rather than admit the

factual basis for the assault, counsel chose to structure the defense around impeaching

Robyn’s testimony, and arguing that Fluckes never swung the club at Robyn. See Trial Tr.

251-52. This is primarily why the defense called Denise and Jeremiah to testify. Given the
12

lack of evidence to support a self-defense theory, and the conflicting testimony regarding

whether Fluckes swung the club at Robyn, along with the evidence of Robyn’s bias against

Fluckes, see Trial Tr. 153-55, 250, pursuing a general lack of evidence defense was

arguably the better course in this case. And even if it was not the best defense in hindsight

(which it was), the decision to assert it did not fall “outside the wide range of professionally

competent assistance” to which Fluckes was entitled. Strickland, 466 U.S. at 690.

In addition, because it was reasonable not to pursue a theory of self-defense, and

because the evidence at trial did not support the theory, defense counsel also was not

deficient for failing to request a jury instruction on self-defense. A defendant is entitled to

have instructions given only if the evidence supports them. See People v. Hawthorne, 474

Mich. 174, 182 (2006); see also Mathews v. United States, 485 U.S. 58, 63 (1988) (“As a

general proposition a defendant is entitled to an instruction as to any recognized defense

for which there exists evidence sufficient for a reasonable jury to find in his favor.”).

Counsel is not deficient for not making a meritless request at trial. 

Fluckes’s Sixth Amendment claim also fails for the independent reason that he

cannot establish any prejudice from counsel’s decision not to pursue a self-defense theory

and request an instruction. He points to no facts he could have offered at trial to support

a self-defense theory, and, for the reasons stated above, see supra note 4, he is not

permitted to develop the facts in an evidentiary hearing in this Court. Thus, the Court must

consider the record as it was developed at trial to determine whether the existence of

argument and an instruction would have changed the result. 

Considering the overwhelming evidence of guilt offered at trial, even had defense

counsel argued a theory of self-defense in closing and requested an instruction on selfdefense from the court, the trial court would have refused to give one. And even if it did,
4

 Fluckes also claims he was denied a fair trial in violation of the Due Process

Clause. This claim is duplicative of the Sixth Amendment ineffective assistance claim and

fails for the same reasons. See also Strickland, 466 U.S. at 685 (“The Constitution

guarantees a fair trial through the Due Process Clauses, but it defines the basic elements

of a fair trial largely through the several provisions of the Sixth Amendment, including the

Counsel Clause . . . .”).

13

the end result would not have been any different. The jury returned a guilty verdict after

only 30 minutes of deliberating, suggesting that the jury found ample evidence of guilt from

the testimony, and would not have credited any self-defense theory. Therefore, the Court

finds no reasonable probability that the result in this case would have been different had

counsel pursued a theory of self-defense, argued the theory in closing, and requested an

instruction on the defense.

Since Fluckes has failed to demonstrate that his counsel performed deficiently and

that the deficiency prejudiced him, he is not entitled to habeas relief on his claim of

ineffective assistance of counsel.4

B. Insufficiency of the Evidence

Fluckes contends that the prosecution failed to prove its case beyond a reasonable

doubt. Again, because it is not clear that the Michigan Court of Appeals and Michigan

Supreme Court addressed this claim on the merits, the Court reviews the claim de novo.

1. Clearly Established Law

The Due Process Clause of the Fourteenth Amendment “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).

Under the pre-AEDPA standard for habeas review applied here, the question a federal

court must answer 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
14

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

original). A court must consider all of the evidence in the light most favorable to the

prosecution. Id. It may not make credibility determinations, see United States v. Bailey,

444 U.S. 394, 414-55 (1980), and the existence of contradictory testimony does not mean

the evidence of guilt is insufficient, only that the jury must make credibility determinations,

Gov’t of the Virgin Islands v. Isaac, 50 F.3d 1175, 1179 (3d Cir. 1995). The Court must

presume that the jury resolved conflicts in the evidence in favor of the prosecution and

defer to that resolution. See Jackson, 443 U.S. at 326. 

2. Application

“The 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). The elements of felonious

assault are: 1) assault; 2) with a dangerous weapon; and 3) with the intent to injure or place

the victim in reasonable apprehension of an immediate battery. People v. Avant, 235 Mich.

App. 499, 505 (1999); see also Mich. Comp. Laws § 750.82(1). A dangerous weapon

includes, but is not limited to, a gun, revolver, pistol, knife, iron bar, club, or brass knuckles.

Mich. Comp. Laws § 750.82(1). An assault is either an attempt to commit battery or an

“unlawful act which places another in reasonable apprehension of receiving an immediate

battery.” People v. Starks, 473 Mich. 227, 234 (2005). A battery is an intentional,

unconsented, and harmful or offensive touching of another person. Id. 

Fluckes contends that the evidence failed to establish that he used a golf club to

assault Robyn, but rather established that he acted in self-defense. But a jury could have

reasonably found otherwise. Viewing the evidence in the light most favorable to the

prosecution and crediting Robyn’s testimony, the facts were as follows: Robyn was
15

standing between Fluckes and Renee with nothing in her hands when Fluckes said he

would “crack” her head (demonstrating intent), and swung a golf club at her head “like a

baseball bat.” To avoid being hit, Robyn had to move her head backwards. She was afraid

she was going to be hit. Considering this evidence, a jury could have found beyond a

reasonable doubt that Fluckes, with a dangerous weapon (a club), intended to batter

Robyn. Further, as the Court has already stated, there is no evidence that would have

supported a finding of self-defense.

Accordingly, Fluckes’s claim that the evidence was insufficient to support the jury’s

verdict is without merit. 

III. Certificate of Appealability

In order to appeal a district court's denial of habeas petition, the petitioner must

obtain a certificate of appealability from the district court or circuit court. 28 U.S.C. §

2253(c)(1)(A). By statute, a certificate of appealability may issue only if the petitioner has

made a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To

make a “substantial showing,” a petitioner must demonstrate that “jurists of reason would

find it debatable whether the petition states a valid claim of denial of a constitutional right.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Specifically, a petitioner must “‘demonstrat[e]

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

encouragement to proceed further.’” Banks v. Dretke, 540 U.S. 668, 705 (2004) (quoting

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). 

The Court concludes that reasonable jurists could not debate the correctness of its

resolution of Fluckes’s claims. On the ineffective assistance claim, it is beyond debate that

the facts in the case could not support a theory of self-defense, so counsel was not
16

ineffective for failing to develop the theory and request an instruction on it. A lack of any

showing of prejudice independently defeats Fluckes’s Sixth Amendment claim as well.

With respect to the insufficiency of the evidence claim, it is beyond debate that the

evidence was sufficient to support the jury’s guilty verdict on the charge of felonious

assault. Accordingly, the Court declines to issue a certificate of appealability on any of

Fluckes’s claims. He is free to request one from the Sixth Circuit.

ORDER 

WHEREFORE, it is hereby ORDERED that the petition for a writ of habeas corpus

is DENIED. 

IT IS FURTHER ORDERED THAT the Court DECLINES to issue a certificate of

appealability on any issue raised in the petition. 

SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: December 14, 2010

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

counsel of record on December 14, 2010, by electronic and/or ordinary mail.

s/Alissa Greer 

Case Manager