UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LEO M. ABBY,

Petitioner, Case No. 08-15333

Honorable David M. Lawson

v. Magistrate Judge Paul J. Komives

JOHN PRELESNIK,

Respondent.

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ORDER GRANTING IN PART AND DENYING IN PART

CERTIFICATE OF APPEALABILITY

The petitioner filed a petition for a writ of habeas corpus on December 31, 2008. The case

was referred to Magistrate Judge Paul J. Komives, who filed a thorough report recommending that

the petition be denied. The petitioner filed timely objections to the report and recommendation. On

March 26, 2012, the Court filed an opinion and order adopting the magistrate judge’s report and

recommendation, overruling the petitioner’s objections, and denying the petition, determining that

the petitioner was convicted on sufficient evidence, the trial court did not err in refusing to give an

intervening cause of death instruction, the trial court did not err in giving an aiding and abetting

instruction, the admission of evidence regarding the petitioner’s involvement in drug trafficking and

gun ownership was not error, the fairness of the trial was not undermined by the prosecutor’s

misconduct, trial counsel was not so ineffective as to deny the petitioner his right to the effective

assistance of counsel, and the petitioner was not unconstitutionally deprived of his counsel of choice.

On this basis, the Court entered judgment against the petitioner.

Pursuant to Rule 11 of the Rules Governing Section 2254 Proceedings, which was amended

as of December 1, 2009:

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The district court must issue or deny a certificate of appealability when it enters a

final order adverse to the applicant. . . . If the court issues a certificate, the court must

state the specific issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2). If the court denies a certificate, a party may not appeal the denial but

may seek a certificate from the court of appeals under Federal Rule of Appellate

Procedure 22.

Rule 11, Rules Governing Section 2254 Proceedings.

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). Courts must either issue a certificate

of appealability indicating which issues satisfy the required showing or provide reasons why such

a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of

Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive a certificate of appealability, “a

petitioner must show that reasonable jurists could debate whether (or, for that matter, 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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)

(internal quotes and citations omitted).

The Court finds that reasonable jurists could debate whether the petitioner’s trial counsel was

constitutionally ineffective by failing to object to the prosecution’s use of pre-arrest silence as

evidence of guilt and whether the petitioner was denied erroneously his right to counsel of choice

at trial because of the trial judge’s refusal to delay the start of the trial until retained counsel

completed trial of another case. Therefore, the Court will grant a certificate of appealability on these

issues. However, the Court finds that reasonable jurists could not debate that the petitioner was

convicted on sufficient evidence, the trial court did not err in refusing to give an intervening cause

of death instruction, the trial court did not err in giving an aiding and abetting instruction, the

admission of evidence regarding the petitioner’s involvement in drug trafficking and gun ownership

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was not error, the fairness of the trial was not undermined by the prosecutor’s misconduct, trial

counsel was not so ineffective as to deny the petitioner his right to the effective assistance of counsel

with respect to the petitioner’s other claims of trial counsel’s error, and the petitioner was not

unconstitutionally deprived of his counsel of choice at sentencing. Therefore, the Court will deny

a certificate of appealability on those issues.

Accordingly, it is ORDERED that a certificate of appealability is GRANTED on the

petitioner’s claim that trial counsel was constitutionally ineffective in failing to object to the

prosecution’s use of pre-arrest silence as evidence of guilt and that he was denied erroneously his

right to counsel of choice at trial.

 It is further ORDERED that a certificate of appealability is DENIED as to all other issues

raised by the petition.

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: March 26, 2012

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on March 26, 2012.

s/Deborah R. Tofil 

DEBORAH R. TOFIL

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