UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NATHANIEL GILBERT,

Petitioner,

v. CASE NO. 09-11223

HONORABLE MARK A. GOLDSMITH

PATRICIA BARNHART,

Respondent.

__________________________/

OPINION AND ORDER

DENYING THE HABEAS CORPUS PETITION,

DENYING A CERTIFICATE OF APPEALABILITY, and

GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

Petitioner Nathaniel Gilbert, a state prisoner at the Thumb Correctional Facility in Lapeer,

Michigan, has filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. The habeas

petition challenges Petitioner’s Macomb County conviction for first-degree (felony) murder. 

Petitioner was sentenced to mandatory life imprisonment without the possibility of parole. He

alleges that: (1) the evidence was insufficient to support his conviction, (2) the trial court abused

its discretion by admitting in evidence a photograph of the victim as she appeared when her body

was discovered; and (3) the trial court reversibly erred by denying his motion for mistrial after the

deceased victim’s mother had an emotional breakdown and collapsed in the courtroom. Respondent

urges the Court to deny the petition on grounds that the state court’s decision on Petitioner’s first

claim was objectively reasonable and the second and third habeas claims are not cognizable. 

The Court agrees that the state appellate court’s adjudication of Petitioner’s first claim was

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not unreasonable and that Petitioner’s second claim is not cognizable on habeas review. The Court

also finds that the emotional outburst by the victim’s mother did not deprive Petitioner of a fair trial. 

Accordingly, the habeas petition will be denied. 

II. BACKGROUND

Petitioner was charged in Macomb County, Michigan with first-degree murder and thirddegree criminal sexual conduct. The charges arose from allegations that Petitioner raped and killed

a fourteen-year-old girl on November 17 or 18, 2005. The victim was fourteen years old at the time

of her death. She was living with her mother and two sisters in an apartment in Warren, Michigan. 

Petitioner lived with his mother in the same apartment building. 

The testimony at trial established that the victim’s mother went to work on the day in

question and left the victim at home with her two sisters, Onyette and Dream. Later that evening,

the victim talked with Onyette, Petitioner, and Onyette’s friend, Allen Doyle, in the hallway outside

Petitioner’s apartment. At about 10:30 p.m., Onyette left the building. At the time, the victim was

sitting on the steps next to Petitioner’s apartment. Petitioner subsequently went inside his apartment,

and the victim went to her apartment where she and Mr. Doyle talked until 11:30 p.m. Mr. Doyle

then left. 

Neighbors saw the victim go to Petitioner’s apartment, and Onyette testified that the victim

called her at about 11:30 p.m. She assumed that the victim was calling from Petitioner’s apartment

because his name and number appeared on Onyette’s cell phone. The victim sounded fine on the

telephone, but when Onyette returned home shortly after midnight, she was unable to find the

victim. She called Petitioner several times and went to his apartment a few times. The third time

she went there, Petitioner answered the door, but he ushered her out the door and said that he had

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not seen the victim. Onyette testified that, a few days earlier, Petitioner had told her that he was

craving sex, and he wondered whether Onyette had any friends she could invite over. He also said

that the victim acted as though she was afraid of sex. 

The victim’s mother arrived home about 12:30 a.m. on November 18, 2005. Upon being

informed that her daughter was missing, she went to Petitioner’s apartment. Petitioner informed her

that the victim had been at his place for a minute, but left. The police were called, and an officer

who responded to the call spoke to Petitioner briefly. The officer found Petitioner to be very calm

and nonchalant. Nothing about Petitioner’s behavior raised his suspicions. 

About twelve hours later, the victim’s grandmother and uncle discovered the victim’s body

near a dumpster in the apartment complex where she lived. Her body was cold and she was

unresponsive. She was naked, except for socks on her feet and a bra and sweater, which were pulled

up above her breasts. 

Petitioner initially informed the uncle that the victim had been at his apartment, used his

telephone, and left with someone else. After the uncle found the victim’s body, he questioned

Petitioner again and encouraged Petitioner to say something if he knew anything. Petitioner

responded, “Okay. I’ll tell . . . .” Their conversation was interrupted before Petitioner could finish

his statement. 

A police officer found a pair of wet, sand-colored pants in a plastic garbage bag in

Petitioner’s apartment. Another police officer testified that there were no signs of a struggle in

Petitioner’s apartment, and a nurse testified that the only injury she detected on Petitioner during

a head-to-toe examination of him was a one-centimeter abrasion on his upper lip. 

A forensic scientist for the Michigan State Police testified that she identified Petitioner’s

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DNA in the sperm portion of a rectal swab taken from the victim. It was such a rarity for a person

to match the evidence on the rectal swab (one in 184.9 trillion) that the scientist stated she would

expect only one person to match the evidence. 

A forensic nurse examiner testified that the victim had nine abrasions on her anus. The Chief

Medical Examiner for Macomb County testified about blunt force injuries to the victim’s face, neck,

and genital area and a post-mortem injury to her right flank, which was consistent with her body

scraping the edge of the dumpster. There were no injuries to the victim’s scalp, skull, or brain and

no defensive injuries on her hands. The medical examiner concluded from all the evidence,

including ligature marks on the victim’s neck, that the cause of death was strangulation and that the

manner of death was homicide. 

A detective testified that he interviewed Petitioner on November 18, 2005. During the

interview, Petitioner stated that he had spent some time with the victim, her sister, and Allen Doyle

but that he last spoke with the victim about 11:44 p.m. on November 17. He claimed that he went

to the victim’s apartment to tell her that Onyette had called him and asked him to inform the victim

and Mr. Doyle that Doyle could go home because Onyette would not be coming home for a while. 

Petitioner stated that he went back to his apartment after delivering this message and went to sleep. 

The detective conducted a second interview with Petitioner after Petitioner’s apartment was

searched and after Onyette identified the pants found in Petitioner’s apartment as being the ones the

victim was wearing when Onyette last saw her. Upon being told that the victim’s pants were found

in his apartment, Petitioner put his head down, sobbed for a moment or two, and said that he did not

mean for this to happen. After he gained his composure, he informed the detective that the victim

had come to his apartment after Mr. Doyle left the building and that the two of them mutually agreed

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to have sex. He said that they moved into the bathroom where they began to engage in vaginal sex. 

At some point, the victim got on the floor and placed her hands on the bathtub. Petitioner claimed

that he grabbed her from behind, lifted her leg, and performed anal sex on her. He lost his balance,

fell backwards, and pulled the victim away from the tub, causing her to strike her head on the tub

and become unconscious. When someone knocked on the door, he picked up the victim and slid her

face down into the bathtub, which was full of water from earlier in the evening. He ran to the door,

looked in the peephole, and saw no one. Then he ran back to the bathroom and tried to remove the

victim from the tub. 

 At this point in the interview, the detective informed Petitioner that the autopsy had revealed

evidence of a ligature being used on the victim’s body. Petitioner then changed his story again and

said that, when removing the victim from the tub, his hands went around her neck as he tried to set

her upright in the bathroom.

Toward the end of the interview, Petitioner said that, when he placed the victim in the tub

the first time, her body jerked and when he pulled her out of the tub, her body quivered and she

made a noise. He admitted that he choked the victim until she stopped breathing and made no more

sounds. He explained to the police that he had not wanted to hurt the victim, but he was afraid that,

if she lived, she would tell other people that he had tried to kill her. He stated that he had carried

the body out the front window and tried to place her in the dumpster. He was unsuccessful and

dragged her around to the other side of the dumpster where he left her. 

Petitioner did not testify at trial or present any witnesses. Defense counsel argued to the jury

that the sex act was consensual and that the prosecutor had failed to prove the homicide was linked

to criminal sexual conduct. Defense counsel maintained that, at most, Petitioner was guilty of

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second-degree murder. 

The trial court instructed the jury on first- and second-degree murder and third-degree

criminal sexual conduct. On August 25, 2006, the circuit court jury found Petitioner guilty, as

charged, of first-degree murder, Mich. Comp. Laws § 750.316(1)(b) (murder committed during the

commission or attempt to commit a felony), and third-degree criminal sexual conduct, Mich. Comp.

Laws § 750.520d(1)(a) (sexual penetration of a person who is thirteen, fourteen, or fifteen years of

age). At the sentencing on September 26, 2006, the prosecutor moved to dismiss the criminal sexual

conduct charge on double jeopardy grounds. The trial court granted the motion and sentenced

Petitioner to life imprisonment for the murder conviction. 

Petitioner raised his habeas claims in an appeal of right. The Michigan Court of Appeals 

affirmed Petitioner’s conviction in an unpublished, per curiam opinion. People v. Gilbert, No.

273644 (Mich. Ct. App. Dec. 20, 2007). On April 28, 2008, the Michigan Supreme Court denied

leave to appeal because it was not persuaded to review the issues. People v. Gilbert, 747 N.W.2d

284 (Mich. 2008).

Petitioner filed his habeas corpus petition on April 2, 2009. His claims are:

I. Michigan’s felony murder rule requires additional mens rea besides

intent to commit the underlying felony. There was insufficient

evidence that Defendant possessed the required state of mind for a

conviction for felony murder.

II. The trial court abused its discretion and deprived defendant of his

rights to due process of law and a fair trial in allowing a photograph

to be admitted when the probative value was outweighed by its unfair

prejudice.

III. The trial court reversibly erred and denied Defendant of his right to

a fair trial in denying Defendant’s motion for mistrial as a result of

the collapse and emotional breakdown of the deceased’s mother

during trial. 

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III. STANDARD OF REVIEW

A state prisoner is entitled to the writ of habeas corpus only if the state court’s adjudication

of his claims on the merits 

(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). 

A state court’s decision is “contrary to” clearly established federal law if the state court

arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the

state court decides a case differently than the Supreme Court has on a set of materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable

application” occurs when “a state-court decision unreasonably applies the law of [the Supreme

Court] to the facts of a prisoner’s case.” Id. at 409.

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

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

erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. 

“[W]here factual findings are challenged, the habeas petitioner has the burden of rebutting, by clear

and convincing evidence, the presumption that the state court’s factual findings are correct.” 

Goodwin v. Johnson, 632 F.3d 301, 308 (6th Cir. 2011) (citing 28 U.S.C. § 2254(e)(1) and Landrum

v. Mitchell, 625 F.3d 905, 914 (6th Cir. 2010)). 

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“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). To obtain a writ of habeas corpus from a federal court, a

petitioner must show that the state court’s decision “was so lacking in justification” that it resulted

in “an error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Id. at 786-87. 

IV. DISCUSSION

A. Sufficiency of the Evidence

Petitioner alleges that there was insufficient evidence at trial to establish that he possessed

the required state of mind to be found guilty of felony murder. According to Petitioner, there was

no evidence of malice, and one could infer from the evidence that there was no struggle and no

aggression or intent to harm the victim following the sex act. The Michigan Court of Appeals

adjudicated Petitioner’s claim on the merits and concluded that the evidence was sufficient for a

reasonable trier of fact to determine that the death occurred during the perpetration of a felony and

that Petitioner possessed the required intent.

1. Clearly Established Federal Law

As stated by the Sixth Circuit:

a conviction with insufficient evidence violates the defendant’s federal due process

rights. To determine whether sufficient evidence supports a particular conviction,

“the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” 

White v. Steele, 602 F.3d 707, 709 (6th Cir. 2009) (quoting Jackson v. Virginia, 443 U.S. 307, 316

(1979)) (citation omitted).

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 “[A]fter AEDPA, federal courts reviewing state habeas claims accord a double layer of

deference” to sufficiency-of-the-evidence claims. Id. at 710. First, the court must determine

whether “an rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (emphasis in original), cert.

denied,130 S. Ct. 1081 (2010). Second, if the court were to conclude that a rational trier of fact

could not have found the petitioner guilty beyond a reasonable doubt, the court “must still defer to

the state appellate court’s sufficiency determination as long as it is not unreasonable.” Id. (citing

28 U.S.C. § 2254(d)(2)) (emphasis omitted).

The Jackson standard “must be applied with explicit reference to the substantive elements

of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. Petitioner was

charged with felony murder. The elements of that offense are (1) the killing of a human being, (2)

with malice, (3) while committing, attempting to commit, or assisting in the commission of specified

felonies. People v. Carines, 597 N.W.2d 130, 136 (Mich. 1999) (quoting People v. Turner, 540

N.W.2d 728, 732 (Mich. Ct. App. 1995)). 

The underlying felony in this case was third-degree criminal sexual conduct, which is one

of the felonies enumerated in the felony murder statute. See Mich. Comp. Laws § 750.316(1)(b). 

As applied to this case, the prosecutor had to prove that sexual penetration occurred with a person

who was at least thirteen years of age, but less than sixteen years of age. See Mich. Comp. Laws

§ 750.520d(1)(a). 

2. Application

It was undisputed that the victim was fourteen years of age at the time of her death and that

Petitioner killed her. Additionally, Petitioner admitted to the police that he had anal sex with the

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victim. The presence of his DNA evidence on the victim’s rectal swab confined that anal

penetration occurred. Thus, the elements of criminal sexual conduct, as defined in § 750.520d(1)(a),

were satisfied. 

Petitioner’s statement to the police established that the sexual activity occurred at the time

of the victim’s death. It was not necessary for the prosecutor to show that the murder was

contemporaneous with the enumerated felony. People v. Kelly, 588 N.W.2d 480, 488 (Mich. Ct.

App. 1998) (citing People v. Brannon, 486 N.W.2d 83, 85 (Mich. Ct. App. 1992)). “The statute

requires only that the defendant intended to commit the underlying felony at the time the homicide

occurred.” Id. at 488-89. 

The murder occurred in the same location as the sexual activity and during the same period

of time. Further, Petitioner has not specified an intervening event that broke the sequence of events

leading from the sexual activity to the murder. The jury could have inferred that the murder was part

of an unbroken chain of events involving criminal sexual conduct and that Petitioner was guilty of

killing the victim while committing a felony. The jury was free to reject Petitioner’s theory that the

murder was not associated with the sex acts. See Jackson, 443 U.S. at 319 and 326 (stating that the

Jackson “standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts

in the testimony ” and declining to adopt “a theory that the prosecution was under an affirmative

duty to rule out every hypothesis except that of guilt beyond a reasonable doubt”).

The main element in dispute is Petitioner’s intent. The prosecutor had to prove that

Petitioner acted with malice, which, in felony murder cases is “the intent to kill, to do great bodily

harm, or to create a very high risk of death or great bodily harm with knowledge that death or great

bodily harm was the probable result.” People v. Kelly, 588 N.W.2d at 488. 

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Petitioner informed the police that he choked the victim until she stopped making any sounds

and stopped breathing. And the medical examiner testified that it would take four to five minutes

of continuous pressure to result in death by asphyxiation. The medical examiner also testified that

the victim’s death was the result of purposeful action, not an accidental strangulation. He opined

that any reasonable person would know that such conduct was harmful and likely fatal. (Tr. Aug.

24, 2006, at 84, 105-06, 114.)

A rational trier of fact could have concluded from the evidence, taken in the light most

favorable to the prosecution, that Petitioner possessed the intent to kill or the intent to do great

bodily harm. At a minimum, a rational trier of fact could have concluded that Petitioner created a

high risk of death or great bodily harm by choking the victim and that he knew death or great bodily

harm was the probable result. Consequently, the evidence was sufficient to sustain Petitioner’s

conviction, and the state appellate court’s adjudication of his claim was objectively reasonable. 

Petitioner is not entitled to habeas relief on the basis of his sufficiency-of-the-evidence claim.

B. The Admission of a Photograph of the Deceased Victim

Petitioner alleges next that the trial court abused its discretion and deprived him of due

process and a fair trial by allowing the prosecutor to admit a photograph of the deceased victim as

she was found after her death. Petitioner claims that the photograph was unnecessary, that it served

no useful purpose, and that it likely evoked feelings of sympathy and anger in the jurors and caused

them to be prejudiced against him. 

The Michigan Court of Appeals adjudicated this claim on the merits and stated that the risk

of unfair prejudice inherent in the nature of the photograph did not substantially outweigh its

probative value. The Court of Appeals concluded that the trial court did not abuse its discretion

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when it admitted the photograph. 

1. Clearly Established Federal Law

The Supreme Court stated in Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), that “it is not

the province of a federal habeas court to reexamine state-court determinations on state-law

questions. In conducting habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States.” “As a result, ‘errors in application

of state law, especially with regard to the admissibility of evidence, are usually not cognizable in

federal habeas corpus.’” Sanborn v. Parker, 629 F.3d 554, 575 (6th Cir. 2010) (quoting Walker v.

Engle, 703 F.2d 959, 962 (6th Cir. 1983)).

Trial court errors in state procedure or evidentiary law do not rise to the level of federal

constitutional claims unless the error rendered the proceeding “so fundamentally unfair as to deprive

the petitioner of due process under the Fourteenth Amendment.” McAdoo v. Elo, 365 F.3d 487, 494

(6th Cir. 2004) (citing Estelle v. McGuire, 502 U.S. at 69-70). In other words, the Court “cannot

grant the writ based on [its] disagreement with ‘state-court determinations on state-law questions,’

unless the state-court determination is so ‘fundamentally unfair’ that it deprives a defendant of due

process.” Wynne v. Renico, 606 F.3d 867, 871 (6th Cir. 2010) (internal and end citations omitted).

2. Application

The photograph in question here depicted the deceased victim’s body as she was found on

November 18, 2005. Prior to the photograph being admitted, the victim’s uncle had testified that,

when he and his mother discovered the body, the victim was lying on the ground by a dumpster. 

The victim was wearing only socks and a sweater that was pulled up to her shoulders, exposing her

breasts. The uncle claimed that the body was frozen and that the eyes were rolled. (Tr. Aug. 23,

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2006, at 38-9.) The medical examiner gave similar testimony after the photograph was admitted in

evidence. (Tr. Aug. 24, 2006, at 63-65.)

Defense counsel objected to the admission of the photograph on the ground that there had

already been testimony regarding how the body was found and that the photograph was more

prejudicial than probative. The trial court allowed the picture to be admitted after determining that

it was neither prejudicial nor inflammatory. (Tr. Aug. 23, 2006, at 96-97.)

The photograph apparently was not gruesome and, even if it were, a claim that a gruesome

photograph of the decedent was erroneously admitted in evidence fails to state a constitutional claim

and is not cognizable on habeas review. Cooey v. Coyle, 289 F.3d 882, 893-94 (6th Cir. 2002)

(citing Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th Cir. 1997)). Even assuming that Petitioner’s

claim were cognizable, the Sixth Circuit held in Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2005),

that it was not fundamentally unfair to admit photographs depicting the victim’s severed head,

severed breast, and torso where there was a cautionary jury instruction and the evidence was

admitted to rebut the defense theory. 

While the photograph in this case may have been redundant and somewhat prejudicial, it

was relevant to corroborate and demonstrate the medical examiner’s testimony

regarding the victim’s appearance. The marks on her body, the state of her clothes,

and how dry or damp her head and hair were, gave the jurors relevant information

about what happened, and whether defendant’s statement was credible. 

People v. Gilbert, Mich. Ct. App. No. 273644, at 2. 

The Court concludes that admission of the photograph did not rise to the level of

fundamental unfairness. Consequently, Petitioner is not entitled to habeas corpus relief on the basis

of his evidentiary claim. 

C. Denial of Petitioner’s Motion for a Mistrial

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In his third and final claim, Petitioner alleges that the trial court erred and deprived him of

a fair trial when the court denied his motion for a mistrial. The basis for the motion was the collapse

and emotional breakdown of the deceased victim’s mother during trial. Petitioner contends that the

incident created sympathy for the victim’s family. The Michigan Court of Appeals, however,

concluded that the trial court did not err when it denied the request for a mistrial.

The question on habeas corpus review is not whether the trial court abused its discretion or

should have declared a mistrial, but whether the state appellate court’s determination that the trial

court did not abuse its discretion was an unreasonable application of clearly established Federal law. 

Renico v. Lett, 130 S. Ct. 1855, 1862 (2010). Review of a state court’s denial of a motion for

mistrial requires application of a high standard. Johnson v. Mitchell, 585 F.3d 923, 937 (6th Cir.

2009) (citing Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003)). Reversal is not warranted unless

the underlying conduct or incident 

“was potentially so misleading and prejudicial that it deprived [the defendant] of a

constitutionally fair trial.” Donnelly v. DeChristoforo, 416 U.S. 637, 641–42 (1974)

(noting that “not every trial error or infirmity which might call for application of

supervisory powers correspondingly constitutes a ‘failure to observe that

fundamental fairness essential to the very concept of justice’ ”). Specifically, habeas

review of this state decision involves “the narrow [review] of due process, and not

the broad exercise of supervisory power that [a federal appellate court] would

possess in regard to (its) own trial court.” Id. 

Zuern v. Tate, 336 F.3d at 485 (alterations in original). 

The record indicates that a recess was abruptly taken during Police Officer William Koenig’s

testimony. After the recess, and in the jury’s absence, defense counsel moved for a mistrial on the

ground that the mother of the deceased victim had an emotional reaction in the courtroom. Defense

counsel argued that the display of emotion likely prejudiced the jurors to the extent that they would

be unable to overcome their sympathy for the mother and incapable of considering the fine

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distinction between felony murder and second-degree murder. 

The prosecutor opposed the motion and pointed out that the victim’s mother had been sitting

in the back of the courtroom and collapsed as she tried to exit the courtroom. The prosecutor stated

that the jury left the courtroom within two or three minutes of the incident.

 The trial court explained that the woman had collapsed in the back of the courtroom, that

medical attention had been necessary, and that the woman was escorted to a local hospital. The trial

court stated that it did not know who had collapsed and that it was not sure the jury knew who had

collapsed, but that the incident did not give rise to a mistrial. At defense counsel’s request, the trial

court read the following cautionary instruction to the jurors immediately after they returned to the

courtroom: 

Folks, I need to read you this instruction. Remember that you’ve taken an oath to

return a true and just verdict based only on the evidence and my instruction on the

law. With reference to the incident that occurred prior to our lunch break, you must

not let sympathy or prejudice influence your decision.

(Tr. Aug. 23, 2006, at 80-81.) At the conclusion of the case, the trial court also instructed the jurors

not to let sympathy or prejudice influence their decision, and the court charged the jurors to consider

only the properly admitted evidence. (Tr. Aug. 25, 2006, at 33, 35-36.)

Even if the jurors recognized the distraught woman as the victim’s mother and saw her

collapse, the prosecutor stated that the mother clearly was upset earlier in the trial when she took

the stand and testified. The jury could have concluded that woman’s distress was a natural reaction

to testimony about her daughter’s death. Given the cautionary instructions and the fact that “juries

are presumed to follow their instructions,” Richardson v. Marsh, 481 U.S. 200, 211 (1987), the

emotional outburst was not so prejudicial as to deprive Petitioner of a fair trial. The Court therefore

denies relief on the basis of Petitioner’s claim about the emotional outburst during trial.

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V. CONCLUSION

The state appellate court’s opinion affirming Petitioner’s conviction and rejecting his claims

was not contrary to Supreme Court precedent, an unreasonable application of Supreme Court

precedent, or an unreasonable application of the facts. Accordingly, the petition for writ of habeas

corpus is denied. 

“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no automatic right

to appeal a district court’s denial or dismissal of the petition. Instead, [the] petitioner must first seek

and obtain a [certificate of appealability.]” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 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, as here, “a district court has

rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is

straightforward: The petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). 

Reasonable jurists would not find the Court’s assessment of Petitioner’s claims debatable

or wrong, nor conclude that the issues deserve encouragement to proceed further. Accordingly, the

Court declines to issue a certificate of appealability. However, the Court will grant Petitioner leave

to appeal in forma pauperis.

SO ORDERED.

Dated: January 23, 2012 s/Mark A. Goldsmith 

Flint, Michigan MARK A. GOLDSMITH

United States District Judge

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record

and any unrepresented parties via the Court’s ECF System to their respective email or First Class

U.S. mail addresses disclosed on the Notice of Electronic Filing on January 23, 2012.

s/Deborah J. Goltz 

DEBORAH J. GOLTZ

Case Manager

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