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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY DOZIER,

Petitioner, Case No. 08-14991

HON. BERNARD A. FRIEDMAN

v.

RAYMOND BOOKER,

Respondent.

 /

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS

CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Anthony Dozier, (“petitioner”), presently confined at the Muskegon Correctional

Facility in Muskegon Heights, Michigan, has filed a pro se petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for armed

robbery, M.C.L. 750.529. For the reasons stated below, the Court will deny the petition

for writ of habeas corpus. 

I. Background

Petitioner was convicted of the aforementioned charge following a bench trial in

the Wayne County Circuit Court. Petitioner’s conviction arose out of an incident in the

early morning hours of June 8, 2006 at a McDonald’s restaurant in Ecorse, Michigan,

where petitioner was employed. Petitioner allegedly aided and abetted a man, whom he

later identified as Roosevelt Daughrity, in the commission of an armed robbery. 

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Daughrity was armed with a butcher knife, which he used to assault two of petitioner’s

female co-workers. Daughrity stole money in the course of the robbery. Petitioner

assisted in the armed robbery by unlocking a door for Daughrity, giving him access to the

restaurant. At the time of the robbery, petitioner was on probation for uttering and

publishing, an offense in which Daughrity had been involved. 

Investigators interviewed petitioner on June 8, 2006, wherein he stated that

Daughrity had talked about “hitting a lick,” i.e. committing a robbery. Petitioner admitted

that he left the door to the restaurant unlocked so that Daughrity could gain access. 

Daughrity then entered the restaurant through this door and asked one of the women to

give him the money. Petitioner told the police that Daughrity had threatened him. 

At the trial, petitioner testified in his own defense. He acknowledged his role in

the robbery, but claimed that he did so only because Daughrity had threatened to harm

him if he refused to help him. Petitioner further attested that Daughrity had threatened

and assaulted him in the past. He denied any prior knowledge that Daughrity was going

to use a weapon during the course of the robbery. In fact, petitioner claimed that he was

scared when he saw Daughrity carrying a knife at the time of the robbery. When the

prosecutor asked petitioner whether Daughrity had told him that “he had a mask and a

knife,” and that all that petitioner had to do was open the door, petitioner indicated that

this statement was untrue. Instead, petitioner claimed that Sergeant Blade encouraged

him to author a confession that would implicate Daughrity. Petitioner attested that he

made the foregoing statement so that he would receive a favorable plea bargain from the

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prosecutor’s office. According to petitioner, Sergeant Blade promised him that the

prosecutors would offer him no more than two years incarceration if petitioner implicated

Daughrity. Petitioner later admitted that he had previously been convicted of uttering and

publishing, in which Daughrity had given him a money order to cash. 

At the conclusion of the trial, petitioner was convicted of armed robbery and

sentenced to 15-30 years in prison. His conviction was affirmed on appeal. People v.

Dozier, No. 275687, 2008 Mich. App. LEXIS 616 (Mich. Ct. App. Mar. 25, 2008); lv.

den. 482 Mich. 1000 (2008). Petitioner filed a petition for writ of habeas corpus, which

was dismissed without prejudice to permit petitioner to return to the state courts to

exhaust a claim that had not been presented to the state courts. Petitioner then filed a

post-conviction motion for relief from judgment, which the trial court denied. People v.

Dozier, No. 06-007700-01 (Third Circuit Court of Michigan, Mar. 11, 2011). The

Michigan appellate courts denied petitioner leave to appeal. People v. Dozier, No. 303169

(Mich. Ct. App. Oct. 6, 2011); lv. den. 491 Mich. 885 (2012).

Petitioner has now filed an amended petition for writ of habeas corpus on the

following grounds:

I. Whether petitioner was deprived of due process, when the prosecution

treated him unfairly and failed to uphold the terms of the plea bargain.

II. Whether petitioner was deprived of due process and a fair trial when the

prosecution withheld evidence of his statement to police until the day of trial

which was made pursuant to plea negotiations and a reasonable expectation of

leniency.

III. Whether petitioner was deprived of effective assistance of counsel when

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trial counsel failed to challenge and object to misscored guidelines and did not

recognize that petitioner was sentenced with inaccurate information.

IV. Whether petitioner was deprived of effective assistance of counsel where

offensive variables 1, 2, and 3 were scored inaccurately; when counsel failed

to challenge and object to the misscored guidelines, and alternatively,

petitioner is entitled to specific performance based in part on the inaccurate

re-calculation of the guidelines range after the prosecutor promised a sentence

below 3 to 5 years.

V. Whether petitioner was deprived of the right to counsel at a critical stage,

when a statement from petitioner was taken by the detective handling the case

in the absence of petitioner’s attorney.

II. Standard of Review

Title 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.

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

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on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-406

(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 410-411.

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, 130 S. Ct. 1855,

1862 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); see 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, 131 S.

Ct. 770, 786 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Thus, to obtain habeas relief in federal court, a state prisoner is required to 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, 131 S. Ct. at 786-787.

III. Discussion

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A. Motion for Leave to File a Supplemental Argument in Support of the

Petition for Writ of Habeas Corpus.

As a preliminary matter, petitioner filed a motion for permission to file a

supplemental argument in support of his fifth claim. The decision to grant or deny a

motion to amend a habeas petition is within the discretion of the district court. Clemmons

v. Delo, 177 F.3d 680, 686 (8th Cir. 1999) citing Fed.R.Civ.P. 15. Notice and substantial

prejudice to the opposing party are the critical factors in determining whether an

amendment to a habeas petition should be granted. Coe v. Bell, 161 F.3d 320, 341-342

(6th Cir. 1998). A motion to amend a habeas petition may be denied when it has been

unduly delayed and when allowing the motion would prejudice the nonmovant. Smith v.

Angelone, 111 F.3d 1126, 1134 (4th Cir. 1997). Delay by itself, however, is not

sufficient to deny a motion to amend. Coe, 161 F.3d at 342.

Petitioner’s proposed amended habeas petition contains additional support for the

claims that he raised in his original petition, was not the subject of undue delay, and

would not unduly prejudice respondent. See Riley v. Taylor, 62 F.3d 86, 92 (3d Cir.

1995). Additionally, petitioner filed this motion to amend the petition before the Court

has adjudicated the issues in the petition. Stewart v. Angelone, 186 F.R.D. 342, 343 (E.D.

Va. 1999). Thus, the Court will grant the motion to amend. 

B. Claim # 1 - Breach of Plea Agreement

Petitioner first alleges that the trial judge denied him due process when he failed

to order the prosecution to specifically perform the plea agreement that it entered into

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with petitioner prior to trial.

On October 13, 2006, petitioner pleaded guilty to armed robbery charge and

cooperated with the police in their investigation of Daughrity. As a result, the prosecutor

agreed to recommend a sentence “below the guidelines.” Although the parties did not

specifically designate the applicable guidelines range on the record, petitioner alleges

that the prosecutor calculated the sentencing guidelines range between 53 and 180

months. When petitioner appeared for sentencing on October 31, 2006, he informed the

judge that the guidelines had been calculated at a range of 108 to 180 months. Petitioner

asked the judge to sentence him to five years in prison as agreed upon by the prosecutor. 

The judge refused to sentence petitioner to five years in prison, but agreed to set aside

petitioner’s guilty plea and permit petitioner to go to trial. 

Petitioner’s claim fails for two reasons. First, petitioner has failed to show that

there was a breach of the plea agreement. An unfulfilled state promise obtained in return

for a guilty plea will entitle a habeas petitioner to habeas relief. See Myers v. Straub, 159

F. Supp. 2d 621, 627 (E.D. Mich. 2001). Nonetheless, a federal court sitting in habeas

review should not “lightly find misrepresentation in a plea agreement.” Id.

Having reviewed the plea transcript, the Court finds that the only plea agreement

memorialized in the record was that petitioner agreed to be sentenced below the

sentencing guidelines range. Otherwise, the record is devoid of any indication that the

parties assented to a particular sentencing guidelines range (Plea Tr. 10/31/2006, p. 5). 

Absent extraordinary circumstances, or some other explanation as to why a defendant

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did not reveal other terms when specifically asked to do so by the trial court, a plea

agreement consists of the terms revealed in open court, particularly where the trial court

scrupulously follows the required procedure for taking the defendant’s plea. Baker v.

United States, 781 F. 2d 85, 90 (6th Cir. 1986); Hastings v. Yukins, 194 F. Supp. 2d 659,

669 (E.D. Mich. 2002). Because a plea bargain is contractual in nature, it would violate

established contract-law standards to permit a defendant to undermine the unambiguous

terms of the plea agreement. See McAdoo v. Elo, 365 F.3d 487, 497 (6th Cir. 2004). 

In this case, the only agreement made by the prosecutor at the time of the guilty

plea was that petitioner would be sentenced below the sentencing guidelines range. A

“clear reading” of the plea agreement shows that there was no promise by the prosecutor

or the trial court that petitioner would receive a sentence of five years in prison or that

the sentencing guidelines range would be scored at 53 to 180 months. Ultimately,

petitioner failed to demonstrate that the original terms of the plea agreement were

breached by the prosecutor. Myers, 159 F. Supp. 2d at 628. Because it is clear from the

record that no promises were made that have not been kept, or that the plea bargain was

breached, petitioner is not entitled to habeas corpus relief on this claim. See Williams v.

Anderson, 498 F. Supp. 151, 152 (E.D. Mich. 1980). 

Even assuming that the prosecutor breached the plea agreement, petitioner still

would not be entitled to specific performance of the agreement. A state prosecutor’s

breach of a plea bargain is a claim cognizable in a habeas proceeding. The appropriate

remedy for the government’s breach of a plea agreement is either specific performance

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of the agreement or an opportunity to withdraw the plea. See Santobello v. New York,

404 U.S. 257, 263 (1971). The choice between these two remedies is not up to the

defendant, but rests instead with “the sound discretion” of the trial court. See Peavy v.

United States, 31 F.3d 1341, 1346 (6th Cir. 1994). Furthermore, courts are not required

under the federal constitution to implement specific performance of a plea agreement.

See Mabry v. Johnson, 467 U.S. 504, 510, n. 11 (1984). Here, the judge permitted

petitioner to withdraw his plea of guilty; thus regardless of whether the prosecutor

breached the plea agreement, this was all that was required under the federal

constitution. Consequently, petitioner is not entitled to habeas relief.

C. Claims # 2 and # 5 - Claims Related to the Admission of Petitioner’s July

26, 2006 Statement

In his second and fifth claims, petitioner argues that the trial court should have

excluded his July 26, 2006 statement to Sergeant Blade wherein he admitted that he

knew Roosevelt Daughrity possessed a knife.

With respect these claims, petitioner argues that the trial court should have

excluded his July 26, 2006 statement from evidence because the prosecutor failed to

reveal the existence of his prior statement to defense counsel until trial. To the extent

that petitioner asserts the prosecutor violated state discovery rules, he may not avail

himself of habeas relief. “It is well settled that there is no general constitutional right to

discovery in a criminal case.” Stadler v. Curtin, 682 F. Supp. 2d 807, 818 (E.D. Mich.

2010) (citing Weatherford v. Bursey, 429 U.S. 545, 559 (1977). A claim that a

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prosecutor violated state discovery rules is not cognizable in federal habeas review

because it is not a constitutional violation. See Lorraine v. Coyle, 291 F.3d 416, 441 (6th

Cir. 2002); see also Friday v. Straub, 175 F. Supp. 2d 933, 940 (E.D. Mich. 2001). 

Insofar as petitioner contends that the violation of the discovery order violated his

due process rights, this claim must also fail. The suppression of exculpatory evidence

violates due process where the evidence is material to either the guilt or punishment of

the defendant, irrespective of the good or bad faith of the prosecution. Brady v.

Maryland, 373 U.S. 83, 87 (1963). There are three components of a Brady violation: (1)

the evidence at issue must be favorable to the accused, either because it is exculpatory or

necessary for the purposes of impeachment; (2) the evidence must have been suppressed

by the state, either willfully or inadvertently; and (3) prejudice must have ensued.

Strickler v. Greene, 527 U.S. 263, 281-282 (1999). “Prejudice (or materiality) in the

Brady context is a difficult test to meet.” Jamison v. Collins, 291 F.3d 380, 388 (6th Cir.

2002). 

In light of the aforementioned standard, petitioner’s Brady claim is without merit.

“The Brady rule does not assist a defendant who is aware of essential facts that would

allow him to take advantage of the exculpatory evidence at issue.” Coleman v. Mitchell,

268 F.3d 417, 438 (6th Cir. 2001). Since petitioner made his statement to the police, he

was obviously aware of it and could have advised defense counsel about it prior to trial. 

Accordingly, the non-disclosure of this statement did not violate Brady.

Secondly, petitioner’s statement was disclosed during trial. Brady generally does

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not apply to the delayed disclosure of exculpatory information, but only to a complete

failure by the prosecutor to disclose such information. See United States v. Davis, 306

F.3d 398, 421 (6th Cir. 2002). If previously undisclosed evidence is disclosed during

trial, no Brady violation occurs unless the defendant is prejudiced by its nondisclosure.

United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986); see also United States v.

Bencs, 28 F.3d 555, 560-561 (6th Cir. 1994). The Sixth Circuit noted that “[T]he

Supreme Court rejected the claim that the duty to disclose hinges on the usefulness of the

material to pretrial preparation. Such a standard would ‘necessarily encompass

incriminating evidence as well as exculpatory evidence, since knowledge of the

prosecutor’s entire case would always be useful in planning the defense.’” Bencs, 28

F.3d at 560, n.5 (quoting United States v. Agurs, 427 U.S. 97, 112 n.20 (1976)). As

petitioner’s statement to the police was disclosed during trial and the prosecutor used it

only for impeachment purposes, petitioner has failed to show that his due process rights

were violated. See e.g. Whittaker v. Lafler, 639 F. Supp. 2d 818, 829-830 (E.D. Mich.

2009).

Additionally, the mere fact that petitioner’s theory of the case may have been

undermined by this new evidence would not entitle him to relief. Quite simply, “[t]here

is no rule that evidence must be excluded or a mistrial granted on the basis that a

defendant had committed himself to a theory which was undermined by new evidence.”

United States v. Atisha, 804 F.2d 920, 925 (6th Cir. 1986), because “[t]here is always a

possibility that new evidence will be discovered, even if the defense was structured

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around assurances made by the government.” Id. More importantly, petitioner’s Brady

claim fails because he did not proffer any evidence that his statement to investigators

contained exculpatory material. Burns v. Lafler, 328 F. Supp. 2d 711, 724 (E.D. Mich.

2004).

Petitioner also maintains that the trial court should have excluded his statement

pursuant to M.R.E. 410 because it was provided to the police as part of his plea

negotiations with the prosecutor. This contention is equally meritless because a state

court’s ruling on the admissibility of evidence pursuant to M.R.E. 410 is not congizable

for the purposes of federal habeas review. See Frazier v. Mitchell, 188 F. Supp. 2d 798,

831 (N.D. Ohio 2001); aff’d in part and rev’d in part on other grds, 343 F.3d 780 (6th

Cir. 2003). Indeed, nothing in the text of Federal Rule of Evidence 410 or its Michigan

analogue even alludes to a constitutionally protected right. See Beach v. Moore, 343 F.

App’x 7, 11 (6th Cir. 2009). Petitioner would not be entitled to habeas relief merely

because the admission of his statement violated M.R.E. 410. 

Petitioner next contends that his statement was involuntary because it was

induced by a promise of leniency. The Michigan Court of Appeals rejected this claim:

The totality of the circumstances does not establish that the statement was

provided involuntarily. Defendant provided an incriminating statement to the

police on the day of the alleged crime, more than one month before he

provided the statement in question. There is no claim that the first statement

was provided in response to any promises. Thus, defendant had already

exhibited a willingness to speak to police without being provided any external

motivation. When considering that defendant had already admitted his

involvement in the robbery, the presence of a promise of leniency likely had

little effect on whether he was willing to further expound in the details of the

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1 People v. Cipriano, 431 Mich. 315 (1988).

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events in question. Furthermore, defendant makes no claim that any of the

other factors provided in Cipriano1 weigh in his favor. As such, he has failed

to demonstrate that the statement was provided involuntarily.

Dozier, No. 275687, Slip. Op. at 3. 

A confession is admissible only when it is made freely and voluntarily. It cannot

be the result of any direct or implied promises, however slight. See Shotwell Mfg. Co. v.

U.S., 371 U.S. 341, 347 (1963). Petitioner failed to meet this standard by showing that

Sergeant Blade made any promises to induce him to make his July 2006 statement, and

thus, his request for habeas relief on this claim is denied. See, e.g., Washington v.

Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions and conclusory allegations do

not provide sufficient ground to warrant requiring an evidentiary hearing in a habeas

proceeding).

In regards to his fifth claim, petitioner contends that his July 2006 statement to

Sergeant Blade should have been suppressed because it was taken in violation of his

Sixth Amendment right to counsel.

Petitioner raised this claim for the first time on post-conviction review. The postconviction court rejected petitioner’s claim, finding that petitioner’s statement, although

taken in violation of his Sixth Amendment right to counsel, had only been used for

impeachment purposes. Dozier, No. 06-00700-01, Slip. Op. at 4-5.

Once a defendant’s Sixth Amendment right to counsel has formally attached, law

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enforcement officials may not “deliberately elicit” incriminating statements in the

absence of counsel. Massiah v. United States, 377 U.S. 201, 206 (1964). In the event

such statements are obtained, they may not be admitted for impeachment purposes. See

Kansas v. Ventris, 556 U.S. 586, 593-594 (2009).

Although prosecutors did not introduce petitioner’s July 26, 2006 statement to

Sergeant Blade during their case-in-chief, they did permissibly utilize his statement to 

impeach him after he had testified that he did not know that Daughrity would be armed

with a knife. Regardless, the trial judge did not rely on petitioner’s statement to the

police in concluding that he was well aware that Daughrity would be armed with a knife

during the course of the robbery. (Tr. 12/21/06, p. 127). In view of the foregoing,

petitioner’s Sixth Amendment claim is similarly denied. 

D. Claims # 3 and #4 - Sentencing Guidelines and Ineffective Assistance of

Counsel

In his third and fourth claims, petitioner alleges that several offense variables of

the Michigan Sentencing Guidelines were incorrectly scored and that his trial counsel

was ineffective for failing to object to this error. However, petitioner’s contention that

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

the Michigan Sentencing Guidelines is not subject to federal habeas review as it is

strictly a matter of state law. See Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir.

2007); Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003). “[I]n short, petitioner had

no federal constitutional right to be sentenced within Michigan’s guideline minimum

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sentence recommendations.” Doyle v. Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich.

2004).

Petitioner further argues that trial counsel was ineffective for failing to object to

the scoring of the offense variables. A defendant must satisfy a two-prong test to

establish ineffective assistance of counsel. First, a defendant must demonstrate that,

considering all of the circumstances, counsel’s performance was so deficient that the

attorney was not functioning as the “counsel” guaranteed by the Sixth Amendment.

Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must

overcome a strong presumption that counsel’s behavior lies within the wide range of

reasonable professional assistance. Id. In other words, petitioner must overcome the

presumption that, under the circumstances, the challenged action might be sound trial

strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that the deficient

performance prejudiced his defense. Id. Prejudice exists when “there is a reasonable

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

would have been different.” Strickland, 466 U.S. at 694. 

While the Sixth Circuit has applied its own framework for reviewing federal

convictions on direct appeal, the Supreme Court never expressly extended Strickland to

noncapital sentencing cases, see United States v. Stevens, 851 F.2d 140, 145 (6th Cir.

1988), and thus, no clearly established federal law regarding ineffective assistance of

counsel claims in noncapital sentencing cases exists. Cooper-Smith v. Palmateer, 397

F.3d 1236, 1244 & n. 39 (9th Cir. 2005) (quoting Strickland, 466 U.S. at 686); see also

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Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir. 2006).

Assuming that Strickland applies to noncapital sentencings, petitioner is unable to

show that he was prejudiced by counsel’s failure to object to the scoring of these

sentencing guidelines variables because petitioner has not demonstrated that his sentence

would have been any different. The Court notes that the Michigan Court of Appeals

ruled that Offense Variable 4 of the Michigan Sentencing Guidelines had been correctly

scored, Dozier, No. 275687, Slip. Op. at 3-4, and the trial judge, on post-conviction

review, held that Offense Variables 1, 2, and 3 had been correctly scored. Dozier, No.

06-00700-01, Slip. Op. at 2-3. Moreover, the Michigan Court of Appeals and the

Michigan Supreme Court both denied petitioner leave to appeal from the denial of his

post-conviction motion. In light of these decisions, it is apparent that any objection to

the scoring of the sentencing guidelines would have been futile and counsel was not

ineffective for failing to do so. See Harris v. U.S., 204 F.3d 681, 683 (6th Cir. 2000).

E. Certificate of Appealability

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 deserving of encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,

483-484 (2000). When a district court rejects a habeas petitioner’s constitutional claims

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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

U.S.C. foll. § 2254. 

For the reasons stated in this opinion, the Court will deny petitioner a certificate

of appealability because petitioner failed to make a substantial showing of the denial of a

federal constitutional right. See Dell v. Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich.

2002). The Court will also deny petitioner leave to appeal in forma pauperis because the

appeal would be frivolous. Id. 

Accordingly,

IT IS ORDERED that the petition for 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 is denied leave to appeal in forma

pauperis.

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Dated: January 17, 2013 s/ Bernard A. Friedman 

BERNARD A. FRIEDMAN

SENIOR UNITED STATES DISTRICT

JUDGE

I hereby certify that a copy of this document was sent to parties of record on January 17,

2013 electronically or by U.S. mail.

s/ Michael Williams 

Relief Case Manager for the

Honorable Bernard J. Friedman 

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