1 

 UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

EDWARD NORDSTROM, 

Petitioner, 

CASE NO. 2:09-CV-11698 

v. JUDGE MARIANNE O. BATTANI 

MAGISTRATE JUDGE PAUL J. KOMIVES 

DEBRA SCUTT, 

Respondent. 

 / 

REPORT AND RECOMMENDATION

Table of Contents

I. RECOMMENDATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

. . . . . . 1 

II. REPORT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

. . . . . . 2 

A. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 

B. Factual Background Unlying Petitioner=s Conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 

C. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 

D. Sufficiency of the Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6 

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

E. Improper Jury Instruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

F. Ineffective Assistance of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

 12 

1. Clearly Established Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

G. Recommendation Regarding Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . .13 

1. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 

2. Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

H. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

 15 

III. NOTICE TO PARTIES REGARDING OBJECTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
. 15 

*****

I. RECOMMENDATION: The Court should deny petitioner=s application for the writ of 

habeas corpus; however, the Court should grant a Certificate of Appealability for two of 

petitioner=s three claims. 

II. REPORT: 

A. Procedural History

1. Petitioner Edward Nordstrom is a state prisoner, currently confined at the 

G. Robert Cotton Correctional Facility in Jackson, Michigan. 

2. On August 10, 2006, petitioner was convicted of failure to stop at the 

scene of an accident resulting in serious impairment, MICH. COMP. LAWS ' 257.617; and 

felonious assault, MICH. COMP. LAWS ' 750.82, following a jury trial in the Oakland County 

Circuit Court. On August 29, 2006, he was sentenced to a term of 5-20 years= imprisonment. 

3. Petitioner filed a delayed application for leave to appeal in the Michigan 

Court of Appeals raising, through counsel, the following claims: (1) insufficiency of the 

evidence, (2) improper jury instructions, and (3) ineffective assistance of counsel. The court of 

appeals denied petitioner=s application for leave to appeal in a standard order, Afor lack of merit 

in the grounds presented.@ People v. Nordstrom, No. 279709 (Mich. Ct. App. Feb. 19, 2008). 

4. Petitioner, proceeding pro se, sought leave to appeal these three issues to 

the Michigan Supreme Court. The Supreme Court denied petitioner=s application for leave to 

appeal in a standard order. See People v. Nordstrom, 481 Mich. 916, 750 N.W.2d 205 (2008). 

5. Petitioner, proceeding pro se, filed the instant application for a writ of 
habeas corpus on May 4, 2009. As grounds for the writ of habeas corpus, he raises the claims 

that he raised in the state courts. 

6. Respondent filed her answer on November 13, 2009. She contends that 

petitioner=s claims are without merit. 

B. Factual Background Underlying Petitioner=s Conviction 

The evidence advanced at trial is accurately summarized in petitioner=s habeas 

application: 

The prosecution [showed] that [after] a physical and verbal altercation Y, 

[petitioner] drove over the legs of Philip Dushan, causing serious injury, and then 

left the scene. The defense [claimed] that [petitioner] had no knowledge that Mr. 

Dushan was underneath his car when he drove away from the [h]ome of Daniel 

Duker, because defendant=s car was stuck on a mail box and when it came [loose] 

[and he] ran over Mr. Dushan=s legs, [he] had no way of knowing [he had run] 

over someone=s legs. 

Daniel Duker was living with [petitioner=s] sister, [at the] place of 

accident[;] Daniel Duker testified that he was having a barbeque at his home on 

the afternoon of April 19, 2006. [Petitioner], who was upset because Mr. Duker 

would not let him borrow his car that day[,] appeared at the barbeque and parked 

at the end of the driveway. Daniel Duker told [petitioner] to leave, and was 

walking him to his car when Daniel=s brother threw a beer can at defendant, 

striking him in the face (T I 67-72, 79, 82-83). Although Daniel Duker put 

[petitioner] in the car, [he] said he would return. He backed his car out onto 

Dixie Highway, but then pulled back into the driveway, heading for David Duker 

who was standing near a mailbox (T I 85-86). The car brushed against David 

Duker, struck the mailbox and got stuck on the mailbox. Another guest at the 

barbeque, Philip Dushan, reached through the [driver=s side] car window try to 

remove the keys from the ignition. The car came [loose] and Philip Dushan was 

caught on the [driver=s] side mirror and then pulled under the car (T I 91-93). 

David Duker, the brother of Daniel Duker, agreed that he threw a beer can 

that struck [petitioner] and that he had fought with [petitioner] and ended up on 

the ground with [him]. After David Duker helped put [petitioner] in his car, 

defendant backed out of the driveway, but then pulled the car forward and tried to 

run David Duker down. The car touched David Duker and then hit the mailbox. 

When [petitioner=s car] came off the mailbox[, he] backed over Philip Dushan[>s] 

legs and dragged him out onto Dixie Highway, where Daniel Duker was able to 
pull Philip Dushan out from under the car. Defendant kept on driving. (T II 

139-144, 147-149). 

According to Philip Dushan, the car was stuck Y on the mailbox, Philip 

Dushan dislodged the car when he leaned inside to remove the keys. As the car 

came [loose] from the mail box the side view mirror hit him and knocked him to 

the ground, his legs went underneath the car, and the car ran over both legs. He 

was able to stand, but then fell and saw defendant=s car coming towards him. 

Daniel Duker was able to grab him and pull him out of the way[,] after which 

defendant drove away from the scene. Mr. Dushan testified that he had multiple 

broken bones and spent four days in the hospital. He had reconstructive surgery 

on one of his legs. (T II 169-171, 175-176, 180-187). 

A State trooper [who] was called to the Duker home after [petitioner] left 

testified that the Duker brothers had been drinking, and Philip Dushan probably 

had been drinking as well and that [one] Duker brother had not been truthful to 

[the] trooper when first interview[ed], and when interview[ed] later had admitted 

that two of [the] witnesses had assaulted defendant at his house[.] When [the] 

trooper interviewed [petitioner] later that night, he observed marks on the bridge 

of [petitioner=s] nose and his forehead, (T II 202, 210-213), as did Luther Haydon, 

an acquaintance who loaned [petitioner] his car that day. Mr. Haydon testified 

that when [petitioner] returned his car to him, the car was damaged and 

[petitioner] looked like he had been beaten up (T II 227). 

The jury found [petitioner] guilty of two of three charged counts (T II 

227), and on August 29, 2006, the court imposed [a] habitual offender sentence of 

5-20 years for failure to stop at the scene off an accident resulting in serious 

impairment of a bodily function (ST 5). 

Pet., at 15-16. 

C. Standard of Review

Because petitioner=s application was filed after April 24, 1996, his petition is governed by 

the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 

No. 104-132, 110 Stat. 1214 (Apr. 24, 1996). See Lindh v. Murphy, 521 U.S. 320, 326-27 

(1997). Amongst other amendments, the AEDPA amended the substantive standards for 

granting habeas relief by providing: 

(d) An application for a writ of habeas corpus on behalf of a person in 

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

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

the adjudication of the claim-- 
(1) resulted in a decision that was contrary to, or involved an unreasonable 

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

Court of the United States; or 

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

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

28 U.S.C. ' 2254(d). 

A[T]he >contrary to= and >unreasonable application= clauses [have] independent meaning.@ 

Williams v. Taylor, 529 U.S. 362, 405 (2000); see also, Bell v. Cone, 535 U.S. 685, 694 (2002). 

AA state court=s decision is >contrary to= . . . clearly established law if it >applies a rule that 

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

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

arrives at a result different from [this] precedent.=@ Mitchell v. Esparza, 540 U.S. 12, 15-16 

(2003) (per curiam) (quoting Williams, 529 U.S. at 405-06); see also, Early v. Packer, 537 U.S. 

3, 8 (2002); Bell, 535 U.S. at 694. A[T]he >unreasonable application= prong of ' 2254(d)(1) 

permits a federal habeas court to >grant the writ if the state court identifies the correct governing 

legal principle from [the Supreme] Court but unreasonably applies that principle to the facts= of 

petitioner=s case.@ Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 

413); see also, Bell, 535 U.S. at 694. However, A[i]n order for a federal court to find a state 

court=s application of [Supreme Court] precedent >unreasonable,= the state court=s decision must 

have been more than incorrect or erroneous. The state court=s application must have been 

>objectively unreasonable.=@ Wiggins, 539 U.S. at 520-21 (citations omitted); see also, Williams, 

529 U.S. at 409. 

By its terms, ' 2254(d)(1) limits a federal habeas court=s review to a determination of 

whether the state court=s decision comports with Aclearly established federal law as determined 
by the Supreme Court.@ Thus, A' 2254(d)(1) restricts the source of clearly established law to 

[the Supreme] Court=s jurisprudence.@ Williams, 529 U.S. at 412. Further, the Aphrase >refers 

to the holdings, as opposed to the dicta, of [the] Court=s decisions as of the time of the relevant 

state-court decision.= In other words, >clearly established Federal law= under ' 2254(d)(1) is the 

governing legal principle or principles set forth by the Supreme Court at the time the state court 

renders its decision.@ Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) (citations omitted) (quoting 

Williams, 529 U.S. at 412). 

Although Aclearly established Federal law as determined by the Supreme Court@ is the 

benchmark for habeas review of a state court decision, the standard set forth in ' 2254(d) Adoes 

not require citation of [Supreme Court] casesBindeed, it does not even require awareness of 

[Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision 

contradicts them.@ Early, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although 

the requirements of Aclearly established law@ are to be determined solely by the holdings of the 

Supreme Court, the decisions of lower federal courts are useful in assessing the reasonableness 

of the state court=s resolution of an issue. See Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 

2003); Phoenix v. Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000); Dickens v. Jones, 203 F. 

Supp.2d 354, 359 (E.D. Mich. 2002) (Tarnow, J.). 

E. Sufficiency of the Evidence 

Petitioner contends that the prosecution presented insufficient evidence to establish his 

guilt beyond a reasonable doubt. The Court should conclude that petitioner is not entitled to 

habeas relief on this claim. 

1. Clearly Established Law
The Due Process Clause of the Fourteenth Amendment Aprotects 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 of sufficiency of the evidence challenges, Athe relevant 

question is whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt.@ Jackson v. Virginia, 443 U.S. 307, 319 (1979)(emphasis in original). Reviewing 

courts must view the evidence, draw inferences and resolve conflicting inferences from the 

record in favor of the prosecution. See Neal v. Morris, 972 F.2d 675, 678 (6th Cir. 1992). In 

determining the sufficiency of the evidence, the court must give circumstantial evidence the 

same weight as direct evidence. See United States v. Farley, 2 F.3d 645, 650 (6th Cir. 1993). 

However, under the amended version of '2254(d)(1) a federal habeas court must apply a 

more deferential standard of review of the state court decision. Thus, the question here is 

whether the Michigan Court of Appeal=s application of the Jackson standard was reasonable. 

See Gomez v. Acevedo, 106 F.3d 192, 198-200 (7th Cir. 1997), vacated on other grounds sub 

nom. Gomez DeTella, 522 U.S. 801 (1998); Restrepo v. DiPaolo, 1 F.Supp.2d 103, 106 

(D.Mass 1998). 

While a challenge to the sufficiency of the evidence on an established element of an 

offense raises a federal constitutional claim cognizable in a habeas corpus proceeding, see 

Jackson, 443 U.S. at 324, A[t]he applicability of the reasonable doubt standard . . . has always 

been dependent on how a State defines the offense that is charged in any given case.@ Patterson 

v. New York, 432 U.S. 197, 211 n.12 (1977); see also Jackson, 443 U.S. at 324 n.16; Mullaney v. 
Wilbur, 421 U.S. 684, 691 (1975). AThus, [a] federal court must look to state law to determine 

the elements of the crime.@ Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1998). 

Under Michigan law, Athe driver of a vehicle who knows or who has reason to know that 

he or she has been in an accident . . . resulting in serious impairment of a bodily function or 

death of a person shall immediately stop his or her vehicle at the scene of the accident . . . .@

MICH. COMP. LAWS ' 257.617(1). This statute Aplainly contemplates finding a driver liable not 

only on the basis of his actual knowledge of the nature of an accident, but also on the basis of the 

driver=s constructive knowledge- what the driver reasonably should have known given the 

circumstances surrounding the accident.@ People v. Lang, 250 Mich. App. 565, 576; 649 

N.W.2d 102, 108 (2002). Therefore, the prosecutor does not need to prove actual knowledge of 

the nature of the injury, only that the driver had reason to believe that the accident resulted in a 

specific injury. See id. 

2. Analysis

In his habeas application, petitioner challenges the sufficiency of the evidence to convict 

him of failure to stop at the scene of an accident causing serious personal injury because he 

claims there was no evidence that he knew the victim was seriously injured. This claim has no 

merit. 

Petitioner argues that there is no indication in the record that he heard or understood what 

Daniel Duker (AMr. Duker@) was saying. Petitioner further argues there was no evidence to 

show he had knowledge or reason to know he had run over Mr. Dushan=s legs because the bump 

petitioner felt when running over Mr. Dushan=s legs could just as well have been from the car 

coming off the mailbox or the car jumping the curb back onto the road. Petitioner concludes his 
argument by stating there was no testimony that he knew or heard anyone say there was someone 

under his car because the car radio could have been on and there was no evidence proving 

petitioner understood that Mr. Duker was telling him Mr. Dushan was under the car. However, 

the prosecution was not required to provide direct evidence that he had knowledge of the serious 

injury. See Lang, 250 Mich. App. at 576, 649 N.W.2d at 108. Rather, a driver can be found 

guilty if the circumstances surrounding the accident show the driver should have known serious 

injury had occurred. See id. 

Here, the circumstantial evidence shows that petitioner had reason to know serious injury 

had occurred after the accident. First, before the accident occurred, Mr. Dushan=s torso was 

inside the driver=s side window of petitioner=s car. Then, he was pulled under the car when it 

became dislodged from the mailbox. Further, Mr. Duker testified that when Mr. Dushan was 

pulled under the car, he was yelling to petitioner that Mr. Dushan was under the car. Although 

petitioner may have thought it was the mailbox or curb that caused the bump, he had reason to 

know Mr. Dushan had been run over and that he was therefore involved in an accident causing 

serious harm to another. Further, Mr. Duker testified that petitioner stopped the car long 

enough for Mr. Duker to pull Mr. Dushan out from under the car after he had run over Mr. 

Dushan=s legs and that he was yelling to petitioner that Mr. Dushan was under the car throughout 

this incident. This evidence was sufficient to show petitioner had reason to know he was 

involved in an accident causing serious impairment to another. Considering all the relevant 

evidence in the light most favorable to the prosecution, this Court should find that a rational jury 

could find beyond a reasonable doubt that petitioner had reason to know he was involved in an 

accident that caused serious impairment to another. Therefore, the Michigan Court of Appeals 
reasonably applied the Jackson test and petitioner is not entitled to habeas relief on his 

sufficiency of the evidence claim. 

F. Improper Jury Instruction

1. Clearly Established Law

In order for habeas corpus relief to be warranted on the basis of incorrect jury 

instructions, a petitioner must show more than that the instructions were undesirable, erroneous 

or universally condemned; rather, taken as a whole, they must be so infirm that they rendered the 

entire trial fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 72 (1991); Henderson v. 

Kibbe, 431 U.S. 145, 154 (1977); Wood v. Marshall, 790 F.2d 548, 551-52 (6th Cir. 1986); cf. 

United States v. Sheffey, 57 F.3d 1419, 1429-30 (6th Cir. 1995) (standard of review for jury 

instructions challenged on direct criminal appeal). As the Supreme Court noted in Estelle, a 

court should Aalso bear in mind [the Supreme Court=s] previous admonition that we >have defined 

the category of infractions that violate Afundamental unfairness@ very narrowly.=@ Estelle, 502 

U.S. at 72-73 (quoting Dowling v. United States, 493 U.S. 342, 352 (1990)). If an instruction is 

ambiguous and not necessarily erroneous, it can run afoul of the Constitution only if there is a 

reasonable likelihood that the jury has applied the challenged instruction in a way that violates 

the Constitution. See Estelle, 502 U.S. at 72-73 n.4; Boyde v. California, 494 U.S. 370, 380 

(1990). Therefore, instructional errors of state law will rarely form the basis for federal habeas 

corpus relief. See Estelle, 502 U.S. at 71-72. 

2. Analysis

Petitioner contends the trial court failed to properly instruct the jury on the element of 
knowledge and, because it was critical to determining his guilt in this case that failure to instruct 

was fatally defective. However, this court should find petitioner is not entitled to habeas relief 

on this claim because he has not shown that the improper jury instruction, i.e. the trial court=s 

failure to instruct the jury on the knowledge element of the charged offense, was harmful to his 

case. 

In Neder v. United States, 527 U.S. 1 (1999), the United States Supreme Court applied 

harmless error review to a trial court=s omission of an element of the charged offense. The 

Court held that Awhere a reviewing court concludes beyond a reasonable doubt that the omitted 

element was uncontested and supported by overwhelming evidence, such that the jury verdict 

would have been the same absent the error, the erroneous instruction is properly found to be 

harmless.@ Neder, 527 U.S. at 17. Therefore, the mistake must not only be uncontested, but 

there must be overwhelming evidence in support of the conclusion the error prejudiced the 

outcome of the trial. Id. at 19. In such cases, it must be Aclear beyond a reasonable doubt that a 

rational jury would have found the defendant guilty absent the error.@ Id. at 18. 

Here, petitioner=s contention that he did not have knowledge of the accident because the 

prosecution could not prove his state of mind at the time of the accident is irrelevant. It is 

sufficient that petitioner had reason to know he was involved in an accident causing serious 

injury to another. Mr. Dushan was pulled underneath petitioner=s car on the driver=s side, Mr. 

Duker repeatedly screamed at petitioner that Mr. Dushan was under the car and petitioner 

stopped long enough for Mr. Duker to remove Mr. Dushan from under the driver=s side of 

petitioner=s car. It is clear beyond a reasonable doubt that a rational jury would have found 

petitioner guilty. 
Given the evidence present in the record, the court=s failure to instruct on the knowledge 

element was harmless because of the overwhelming amount of evidence establishing petitioner=s 

guilt. Therefore, this Court should conclude petitioner is not entitled to habeas relief on this 

claim. 

G. Ineffective Assistance of Counsel

1. Clearly Established Law 

The Sixth Amendment right to counsel and the corollary right to effective assistance of 

counsel protect the fundamental right to a fair trial. See Strickland v. Washington, 466 U.S. 

668, 687 (1984). To establish the ineffective assistance of counsel, petitioner must show that: 

(1) counsel=s errors were so serious that Acounsel was not functioning as the >counsel= guaranteed 

the defendant by the Sixth Amendment;@ and (2) counsel=s deficient performance prejudiced the 

defense. Id. at 687. These two components are mixed questions of law and fact. See id. at 

698. Further, A[t]here is no reason for a court deciding an ineffective assistance claim . . . to 

address both components of the inquiry if the defendant makes an insufficient showing on one.@ 

Id. at 697. If Ait is easier to dispose of an ineffectiveness claim on the ground for lack of 

sufficient prejudice, . . . that course should be following.@ Id.

With respect to the performance prong of the inquiry, a strong presumption exists that 

counsel=s behavior lies within the wide range of reasonable professional assistance. See id. at 

689; O=Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). A[D]efendant must overcome the 

presumption that, under the circumstances, the challenged action >might be considered sound 

trial strategy.=@ Strickland, 466 U.S. at 689 (citation omitted). A[T]he court must recognize that 

counsel is strongly presumed to have rendered adequate assistance and made all significant 
decisions in the exercise of reasonable professional judgment.@ Id. at 690. With respect to the 

prejudice prong, the reviewing court must determine, based on the totality of the evidence before 

factfinder, Awhether there is a reasonable probability that, absent the errors, the factfinder would 

have had a reasonable doubt respecting guilt.@ Id. at 695. 

2. Analysis

Here, petitioner was not sufficiently prejudiced by the lack of action on the part of his 

counsel. As discussed above, the outcome of the case would have been no different had the 

knowledge instruction been given. Because counsel=s lack of action did not establish a 

Areasonable probability that, absent the errors, the factfinder would have had a reasonable doubt@

about the guilt of the party, Strickland, 466 U.S. at 689, it would have made no difference in the 

outcome of the case if a proper jury instruction had been requested by counsel and given to the 

jury. Therefore, petitioner has not demonstrated the prejudice necessary to show his entitlement 

to habeas relief with respect to this claim. 

F. Recommendation Regarding Certificate of Appealability

1. Legal Standard

As amended by the Antiterrorism and Effective Death Penalty Act, section 2253 provides 

that a petitioner may not appeal a denial of an application for a writ of habeas corpus unless a 

judge issues a certificate of appealability. See 28 U.S.C. ' 2253(c)(1). The statute further 

provides that A[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). As the 

Sixth Circuit has noted, this language represents a codification of the Supreme Court=s decision 

in Barefoot v. Estelle, 463 U.S. 880 (1983), and A[t]he AEDPA thus makes no change to the 
general showing required to obtain a certificate[.]@ Lyons v. Ohio Adult Parole Auth., 105 F.3d 

1063, 1073 (6th Cir. 1997); accord Slack v. McDaniel, 529 U.S. 473, 483 (2000). Although the 

statute does not define what constitutes a Asubstantial showing@ of a denial of a constitutional 

right, the burden on the petitioner is obviously less than the burden for establishing entitlement 

to the writ; otherwise, a certificate could never issue. Rather, the courts that have considered 

the issue have concluded that A>[a] substantial showing requires the applicant to Ademonstrate 

that the issues are debatable among jurists of reason; that a court could resolve the issues (in a 

different manner); or that the questions are adequate to deserve encouragement to proceed 

further.@=@ Hicks v. Johnson, 186 F.3d 634, 636 (5th Cir. 1999) (quoting Drinkard v. Johnson, 97 

F.3d 751, 755 (5th Cir. 1996) (quoting Barefoot, 463 U.S. at 893 n.4)); accord Slack, 529 U.S. at 

483-84. Although the substantive standard is the same, A[t]he new Act does, however, require 

that certificates of appealability, unlike the former certificates of probable cause, specify which 

issues are appealable.@ Lyons, 105 F.3d at 1073. (citing 28 U.S.C. ' 2253(c)(3)). 

Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 

2254 Cases in the United States District Courts, 28 U.S.C. foll. ' 2254, provides that A[t]he 

district court must issue or deny a certificate of appealability when it enters a final order adverse 

to the applicant.@ Rule 11(a), 28 U.S.C. foll. ' 2254. The rule tracks ' 2253(c)(3)=s 

requirement that any grant of a certificate of appealability Astate the specific issue or issues that 

satisfy the showing required by ' 2253(c)(2),@ Rule 11(a), but omits the requirement contained in 

the pre-amendment version of Federal Rule of Appellate Procedure 22(b)(1) that the court 

explain Awhy a certificate should not issue.@ FED. R. APP. P. 22(b)(1) (version effective prior to 

2009 amendment); see id., advisory committee note, 2009 amendments. In light of the new 
Rule 11 requirement that the Court either grant or deny the certificate of appealability at the time 

of its final adverse order, I include a recommendation regarding the certificate of appealability 

issue here. 

2. Analysis

This Court should conclude petitioner is not entitled to a certificate of appealability with 

regard to his sufficiency of the evidence claim. The record establishes and reasonable jurists 

would not disagree that the Michigan Court of Appeals= decision that sufficient evidence was 

presented at petitioner=s trial to support his conviction was not objectively unreasonable. 

However, because reasonable jurists could differ, based on Neder, whether a knowledge 

instruction might have led the jury to acquit petitioner on this charge, this Court should conclude 

that petitioner is entitled to a certificate of appealability with regard to his improper jury 

instruction and ineffective assistance of counsel claims. 

G. Conclusion 

In view of the foregoing, the Court should conclude that the state courts= resolution of 

petitioner=s claims did not result in a decision which was contrary to, or which involved an 

unreasonable application of, clearly established federal law. Accordingly, the Court should 

deny petitioner=s application for the writ of habeas corpus; however, the Court should issue a 

certificate of appealability on two of his three claims. 

III. NOTICE TO PARTIES REGARDING OBJECTIONS: 

The parties to this action may object to and seek review of this Report and 
Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as 

provided for in FED. R. CIV. P. 72(b)(2). Failure to file specific objections constitutes a waiver 

of any further right of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of 

Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 

(6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with 

specificity, will not preserve all the objections a party might have to this Report and 

Recommendation. See Willis v. Secretary of Health & Human Servs., 931 F.2d 390, 401 (6th 

Cir. 1991). Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 

1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this 

Magistrate Judge. 

Within fourteen (14) days of service of any objecting party=s timely filed objections, the 

opposing party may file a response. The response shall be not more than five (5) pages in 

length unless by motion and order such page limit is extended by the Court. The response shall 

address specifically, and in the same order raised, each issue contained within the objections. 

s/Paul J. Komives

UNITED STATES MAGISTRATE JUDGE 

Dated: 7/15/10 PAUL J. KOMIVES 

The undersigned certifies that a copy of the foregoing 

order was served on the attorneys of record and by 

electronic means or U.S. Mail on July 15, 2010. 

s/Eddrey Butts 

Case Manager