1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DESHAWN WHITMAN,

 

Petitioner, Civil No. 09-12969 

Honorable Gerald E. Rosen

v.

CARMEN PALMER, Warden,

Respondent.

__________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND

DENYING CERTIFICATE OF APPEALABILITY

Petitioner, Deshawn Whitman, presently incarcerated at a Michigan correctional

facility, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. Petitioner

was convicted after a jury trial in the Wayne Circuit Court of assault with intent to commit

murder, MICH. COMP. LAWS § 750.83, carjacking, MICH. COMP. LAWS § 750.529a, felon in

possession of a firearm, MICH. COMP. LAWS § 750.224f, and commission of a felony with

a firearm, MICH. COMP. LAWS § 750.227b. For the reasons stated below, the Court denies

the petition. The Court also declines to issue Petitioner a certificate of appealability.

I. Background

This Court recites verbatim the relevant facts relied upon by the Michigan Court of

Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. §

2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendants were tried jointly n1, as a result of two shootings on April

6, 2000. Relating to the murder charges, Erwin Wilson was shot and killed

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in front of 4171 Drexel, in Detroit. The assault with intent to murder and

carjacking charges arose out of another shooting, in which Jermaine

Davenport, Wilson's cousin, was shot in the neck and his vehicle, a Yukon,

was taken. Both defendants were acquitted of first-degree murder and the

lesser offense of second-degree murder.

n1 Marcus Taylor was tried with defendants, and was acquitted of all charges

(relating to both shootings).

The prosecution's theory was that Hill, Whitman, Taylor and a fourth

man, were in a black SUV around 10:00 p.m. on April 6, 2000, and shot and

killed Erwin Wilson, a street-level drug dealer, in front of 4171 Drexel Street.

A few minutes later, the black SUV approached Jermaine Davenport,

Wilson's cousin, who was in another SUV parked on the street talking to

fourteen-year-old Unique Webster. Someone from the black SUV shot at

Davenport and the SUV and chased him, until Davenport's SUV crashed into

a parked car and stopped. Davenport got out of his SUV and was shot at by

Whitman and the others. Davenport sustained a gunshot wound to the neck,

and Davenport's SUV was taken by several of the perpetrators. Davenport

walked to the house on Drexel, saw Wilson lying in the street, and saw

Roosevelt Walker, a friend of Davenport's with whom Davenport had been

earlier. Davenport did not name any perpetrators until well after the

shootings. In May 2000, Davenport was charged with Wilson's murder, but

the charges were later dropped. 

Defendant Whitman's defense theory was that Jermaine Davenport

argued with Wilson on the evening in question and was in the SUV from

which the shot that killed Wilson was fired. Defendant Hill's defense was that

he was not present at either shooting incident, and that Jermaine Davenport,

who was involved in drug-dealing along with Wilson, had every reason to lie

regarding this case.

People v. Whitman, 2006 Mich. App. LEXIS 314, *2-3 (Mich. Ct. App. Feb. 7, 2006).

Petitioner filed an appeal by right. His appellate counsel filed a brief in the Michigan

Court of Appeals that raised four claims:

I. Defendant is entitled to resentencing when the record does not set forth

the sentence or the reason for the same and does not reflect that he was

entitled to allocute.

II. The trial court erred in not allowing defense counsel to cross examine

Roosevelt Walker regarding a prior inconsistent statement provided at a

preliminary examination hearing which was stricken on the grounds of

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hearsay.

III. Defendant was deprived of the effective assistance of counsel where his

attorney failed to file a motion for a new trial on the grounds that his

conviction was against the great weight of the evidence.

IV. The trial court abused its discretion in denying defendant's motion for

directed verdict where the prosecution presented insufficient evidence to

prove beyond a reasonable doubt that he assaulted Jermain Davenport with

intent to murder, carjacked his vehicle, was a felon in possession of a

firearm, and committed felony-firearm.

 

The Michigan Court of Appeals affirmed Petitioner's convictions and sentence in an

unpublished opinion. Ibid.

Petitioner then filed an application for leave to appeal in the Michigan Supreme

Court. The application raised the same four claims raised in the court of appeals, and it

also included six new claims:

I. The prosecutor abused his charging authority in the first degree murder,

assault with intent to murder, carjacking, felon in possession, felony firearm,

in violation of Appellant's constitutional right to due process.

II. Appellant was denied his constitutional right to effective assistance of

counsel by actual conflict of interest; which also violated Michigan Court Rule

6.005(f) & (g), and the Michigan Rules of Professional Conduct 1.7 through

1.9.

III. Appellant was denied his due process and his right to a fair trial where

there was insufficient evidence to support his conviction for assault with

intent to murder, carjacking, felon in possession, and felony firearm.

IV. Though no proper foundation was laid, the trial court permitted the

prosecution to present to the jury uncorroborated facts and testimony

regarding the alleged drivers license belonging to Terry Lee Spielman in

violation of Appellants constitutional right to due process and to a fair trial. 

V. Appellant counsel was denied his constitutional right to effective

assistance of counsel in his appeal of right.

VI. The cumulative effect of the errors committed during appellant's trial

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require relief because he did not receive a fair trial under both the state and

federal constitutions. 

The Michigan Supreme Court denied leave to appeal by standard order. People v.

Whitman, 477 Mich. 927, 723 N.W.2d 204 (2006). 

Petitioner subsequently returned to the state trial court and filed a motion for relief

from judgment. The motion raised nine claims:

I. Mr. Whitman was denied his fundamental constitutional rights to raise a

complete defense, confrontation, and to have the jury determine credibility

of Jermaine Davenport uninfluenced by opinions of prosecutor and

investigating officer thus depriving him of his right to a fair trial; the opening

statement promised went unfulfilled.

II. The prosecutor deprived Mr. Whitman of a fair trial when he engaged in

misconduct by seeking to bolster testimony of his witnesses, misrepresented

facts in evidence, asserting facts not in evidence, and suggesting Whitman's

guilt and Davenport's innocence.

a. Mr. Whitman was denied his right to a fair trial when the

prosecution improperly elicited testimony from Sergeant

Abdella commenting on defendant's right to remain silent and

in doing so shifted the burden [of] proof to the defense.

III. The alleged unwritten statements made to Sergeant Abdella must be

suppressed because they were taken while Mr. Whitman was lodged in the

Wayne County Jail awaiting trial on a second case of which the right to

counsel had attached.

IV. Mr. Whitman was denied his right to due process and a fair trial by

admitting testimony that he committed fraud when: (a) he allegedly used a

false name and obtained a false driver's license, and (b) by admitting

testimony that he was under a federal criminal investigation where there was

no testimony regarding Whitman's involvement in the alleged crimes, the

prosecution never connected the testimony to any alleged motive, and the

evidence was overwhelmingly prejudicial. 

V. Mr. Whitman's attorney was totally absent from trial during a critical stage

where further evidence was taken and the court gave further instructions to

the jury amounting to a complete denial of counsel; standby counsel also

represented the co-defendant and the court failed to inquire into potential for

a conflict of interest; Mr. Whitman never waived his right to counsel.

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VI. Defendant Whitman was denied due process and fir trial where the

prosecution failed to investigate the real possibility that its witnesses were

conspiring to commit imminent perjury at trial. 

VII. Defense counsel was ineffective and deprived Mr. Whitman of his

Fourteenth Amendment constitutional right to present the defense of

third-party culpability. 

VIII. Mr. Whitman was denied his rights to the effective assistance of trial

counsel and a fair trial under both state and federal constitutions where

counsel failed to object to admission of prejudicial evidence, failed to raise

a viable defense, and counsel's otherwise deficient performance as set forth

in issues I through VIII. 

IX. This case can and should be heard on its merits without regard to

"cause" since DeShawn Whitman can show that: (a) he had ineffective

assistance of appellate counsel and the absence of counsel at a critical stage

claim qualifies as "structural defect", i.e., jurisdictional defect which can be

raised at any time; (a) it would result in a miscarriage of justice not to hear

the case; and (c) he is actually innocent of the crime for gateway purposes.

The trial court denied the motion in an opinion dated January 10, 2008. The trial

court stated, in pertinent part, "defendant has failed to demonstrate 'good cause' for failing

to raise these issues in his prior motions or on appeal. He has also failed to demonstrate

that he suffered actual prejudice from any of the alleged irregularities." Opinion, at 2.

Petitioner appealed this decision in the Michigan Court of Appeals, but his

application for leave to appeal was denied "for failure to demonstrate entitlement to relief

under Michigan Court Rule 6.508(D)." People v. Whitman, Michigan Court of Appeals No.

283917 (August 29, 2008). Petitioner then pursued relief in the Michigan Supreme Court

based on the same issues, but his application for leave to appeal was also denied under

Rule 6.508(D). People v. Whitman, 483 Mich. 913, 762 N.W.2d 510 (2009).

Petitioner's amended petition for writ of habeas corpus enumerates nine claims:

I. The evidence was insufficient to convict Mr. Whitman beyond a reasonable

doubt of assault with intent to commit murder, carjacking, felon in possession

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of a firearm, and felony firearm.

II. Mr. Whitman was denied his fundamental constitutional rights to raise a

complete defense, confrontation, and to have the jury determine credibility

of Jermaine Davenport uninfluenced by opinions of the prosecutor and

investigating officer, thus depriving him of his right to a fair trial; the opening

statement of the prosecutor regarding Davenport went unfulfilled.

III. The prosecutor deprived Mr. Whitman of a fair trial when he engaged in

misconduct by: (a) seeking to bolster testimony of his witnesses,

misrepresented facts in evidence, asserted facts not in evidence, and

suggested Whitman’s guilt and Davenport’s innocence, and (b) improperly

eliciting testimony from Sgt. Abdella commenting on Mr. Whitman’s right to

remain silent and shifting the burden of proof to the defense.

IV. The alleged written statements made to Sergeant Abdella must be

suppressed because they were taken while Mr. Whitman was lodged in the

Wayne County jail on a second case of which the right to counsel had

attached.

V. Mr. Whitman was denied his right to due process and a fair trial when the

state court admitted testimony that he committed fraud when (a) he allegedly

used a false name and obtained a false driver’s license; and (b) admitting

testimony that there was no testimony regarding the extent or substance of

Whitman’s involvement in the alleged crime, the prosecution failed to connect

the testimony to any alleged motive in this crime, and the evidence was

overwhelmingly prejudicial.

VI. Mr. Whitman was actually denied his right to counsel when (a) counsel

was totally absent from trial during a critical stage where further evidence

was taken and the trial court gave further instructions to the jury amounting

to a complete denial of counsel; and (b) standby counsel also represented

the co-defendant and the court failed to inquire into a potential conflict of

interest and Mr. Whitman never waived his right to counsel.

VII. Mr. Whitman was denied due process and a fair trial where the

prosecution failed to investigate the real possibility that its witnesses were

conspiring to commit imminent perjury at trial.

VIII. Mr. Whitman was denied the effective assistance of counsel in the

following ways: (a) defense counsel failed to raise the defense of third-party

culpability; (b) failed to object to the admission of prejudicial evidence; and

(c) failed to object to numerous instances of prosecutorial misconduct.

IX. This case can and should be heard on its merits because “cause and

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prejudice” is satisfied where: (a) Appellate counsel was ineffective on appeal;

(b) issue VI qualifies as “structural defect” and a “jurisdictional defect” under

Michigan law which can be raised at anytime; (c) it would result in a

fundamental miscarriage of justice not to hear the case on its merits; and (d)

Mr. Whitman is “actually innocent” of the crime for gateway purposes. 

II. Standard of Review

Review of this case is governed by the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas

corpus only if he can show that 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 proceeding.

28 U.S.C. § 2254(d). 

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 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." Id. at 410-11.

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

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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, 176 L.

Ed. 2d 678 (2010)((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.

Visciotti, 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, No.

2011 WL 148587, * 11 (U.S. 2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)). The Supreme Court has emphasized "that even a strong case for relief does not

mean the state court's contrary conclusion was unreasonable." Id. (citing Lockyer v.

Andrade, 538 U.S. 63, 75 (2003). Furthermore, pursuant to § 2254(d), "a habeas court

must determine what arguments or theories supported or . . . could have supported, the

state court's decision; and then it must ask whether it is possible fairminded jurists could

disagree that those arguments or theories are inconsistent with the holding in a prior

decision" of the Supreme Court. Id. "[I]f this standard is difficult to meet, that is because

it was meant to be." Harrington, 131 S. Ct. 770. 

Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar

federal courts from relitigating claims that have previously been rejected in the state courts,

it preserves the authority for a federal court to grant habeas relief only "in cases where

there is no possibility fairminded jurists could disagree that the state court's decision

conflicts with" the Supreme Court's precedents. Id. Indeed, "Section 2254(d) reflects the

view that habeas corpus is a 'guard against extreme malfunctions in the state criminal

justice systems,' not a substitute for ordinary error correction through appeal." Id. (citing

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Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)).

Therefore, in order 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." 131 S.Ct. at 786-787.

IV. Discussion 

A. Insufficiency of the Evidence

Petitioner first claims that insufficient evidence was presented at his trial to sustain

his convictions because they are based only on the unreliable testimony of Jermaine

Davenport and Roosevelt Walker. The Michigan Court of Appeals rejected this claim on

the merits as follows:

Defendant Whitman next argues that the trial court abused its

discretion in denying defendant's motion for directed verdict. Defendant

maintains that his convictions are based solely on the unbelievable and

inconsistent testimony of Jermaine Davenport and his friend, Roosevelt

Walker, and that his own name (Whitman) did not become involved in the

investigation until after Davenport was implicated in the homicide of Erwin

Wilson. At no time before did Davenport identify defendant Whitman as the

person who shot him in the neck. Defendant asserts that the number of

inconsistencies in Davenport and Walker's testimony should have created a

reasonable doubt in the jury's mind and ought to have been insufficient to

convict Whitman of the charges. 

We conclude that the trial court properly denied defendant's motion for

a directed verdict. Despite the many inconsistencies in Davenport's

testimony, a reasonable jury could believe Davenport and find that defendant

and his accomplices shot Davenport and carjacked his SUV. The parties

stipulated that defendant had been convicted of a specified felony for

purposes of the felon in possession of a firearm and felony-firearm charges.

Thus, viewing the evidence in a light most favorable to the prosecution,

sufficient evidence was presented to support defendant's convictions.

Whitman, 2006 Mich. App. LEXIS 314, *9-11.

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"[T]he Due Process Clause protects the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with which

he is charged." In re Winship, 397 U.S. 358, 364 (1970). The critical inquiry on habeas

review of the sufficiency of the evidence to support a criminal conviction is

whether the record evidence could reasonably support a finding of guilt

beyond a reasonable doubt. [T]his inquiry does not require a court to 'ask

itself whether it believes that the evidence at the trial established guilt

beyond a reasonable doubt.' Instead, 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.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citation and footnote omitted)

(emphasis in original). A federal court may not reweigh the evidence or redetermine the

credibility of the witnesses. Marshall v. Lonberger, 459 U.S. 422, 434 (1983). "It is the

province of the factfinder to weigh the probative value of the evidence and resolve any

conflicts in testimony." Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing

Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992)). A habeas court must defer to the fact

finder for its assessment of the credibility of witnesses. Id. The Court does not need to be

convinced that the petitioner is actually guilty beyond a reasonable doubt. Walker v.

Russell, 57 F.3d 472, 475 (6th Cir. 1995).

The decision of the state appellate court rejecting Petitioner's claims did not result

in an unreasonable application of this standard. Petitioner questions the credibility of

Davenport and Walker's testimony, but assessing the credibility of witnesses was a matter

for the jury to decide and is not an appropriate subject for habeas review. See Schlup v.

Delo, 513 U.S. 298, 333 (1995); Pinchon v. Myers, 615 F.3d 631, 644 (6th Cir. 2010). The

only issue is whether the jury could reasonably infer from the evidence that Petitioner

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committed the crime of conviction. See White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009).

Despite contradictions in Davenport's testimony and similar problems presented by

Walker's testimony, there were compelling reasons for the jury to chose to believe them.

Viewed most favorably to the prosecution, circumstantial evidence presented at trial

undermined the defense's suggestion that Davenport murdered Wilson and then falsely

accused Petitioner and his co-defendants. So viewed, the evidence showed that

Davenport did not have gunshot residue on his hands, that he ran back to the murder

scene, that his truck was stolen after it crashed, that the shell casings from both shooting

sites matched, and that there was another vehicle besides Davenport's involved in the

shootings because there was evidence of a high speed chase. Given this evidence, a jury

could rationally conclude beyond a reasonable doubt that the essential part of Davenport's

testimony - that Petitioner and not Davenport was the perpetrator of the crimes - was true.

While the case was obviously closely tried, review at this point "is limited to

determining whether the evidence was so overwhelmingly in favor of the petitioner that it

compelled a verdict in his or her favor." Thompson v. Bock, 215 F. App'x 431, 436 (6th Cir.

2007). It did not. The prosecutor's key witnesses certainly had credibility problems, but

they were not so great as to prevent the state appellate court from reasonably rejecting his

sufficiency-of-the-evidence claim. Petitioner's first claim for relief is therefore without merit.

B. Claims Raised in Motion for Relief from Judgment

Petitioner's remaining claims were not presented to the state courts during his

appeal of right. Rather, these claims were first presented to the state trial court in his

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motion for relief from judgment. The trial court denied the motion under Michigan Court

Rule 6.508(D)(3) because Petitioner had not demonstrated "good cause" or prejudice for

failing to have raised them previously. The state appellate courts subsequently denied

relief by using the form order citing to Rule 6.508(D). Respondent asserts that review of

these claims is procedurally barred because the state trial court relied on a state procedural

rule in denying Petitioner relief.

Federal habeas relief is precluded on claims that a petitioner has not presented to

the state courts in accordance with the state's procedural rules. See Wainwright v. Sykes,

433 U.S. 72, 85-87 (1977). The doctrine of procedural default is applicable when a

petitioner fails to comply with a state procedural rule, the rule is actually relied upon by the

state courts, and the procedural rule is "adequate and independent." White v. Mitchell, 431

F.3d 517, 524 (6th Cir. 2006); see also Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir.

2005); Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). The last explained state

court judgment should be used to make this determination. See Ylst v. Nunnemaker, 501

U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial, it is

presumed that the last reviewing court relied upon the last reasoned opinion. Id.

The Michigan appellate courts denied relief pursuant to Michigan Court Rule

6.508(D), which provides, in part, that a court may not grant relief to a defendant if the

motion for relief from judgment alleges grounds for relief which could have been raised on

direct appeal, absent a showing of good cause for the failure to raise such grounds

previously and actual prejudice resulting therefrom. See MICH. CT. R. 6.508(D)(3). The

Sixth Circuit has held, however, that the form order used by the Michigan Supreme Court

to deny leave to appeal in this case is unexplained because its citation to Michigan Court

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Rule 6.508(D) is ambiguous as to whether it refers to a procedural default or a rejection on

the merits. See Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc).

Consequently, under Guilmette, the Court must "look through" the unexplained order of the

Michigan Supreme Court to the state trial court's decision to determine the basis for the

denial of state post-conviction relief.

In this case, the state trial court clearly denied relief on procedural grounds. The trial

court cited Michigan Court Rule 6.508(D)(3) and concluded that Petitioner had failed to

demonstrate good cause and actual prejudice on the basis of his claim of ineffective

assistance of appellate counsel. Accordingly, Petitioner's second through ninth claims are

procedurally defaulted.

A state prisoner who fails to comply with a state's procedural rules waives the right

to federal habeas review absent a showing of cause for noncompliance and actual

prejudice resulting from the alleged constitutional violation, or a showing of a fundamental

miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Nields v.

Bradshaw, 482 F.3d 442 (6th Cir. 2007); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir.

1996).

Petitioner asserts in his ninth claim ineffective assistance of appellate counsel as

cause to excuse his default. In order to establish ineffective assistance of counsel, the

petitioner must show "that counsel's performance was deficient ... [and] that the deficient

performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984);

O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). In determining whether counsel's

performance was deficient,

[t]he court must ... determine whether, in light of all the circumstances, the

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identified acts or omissions were outside the wide range of professionally

competent assistance . . . . At the same time, the court should recognize that

counsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional

judgment.

Strickland, 466 U.S. at 690. Judicial scrutiny of counsel's performance is thus "highly

deferential." Id. at 689. The defense is prejudiced only if "there is a reasonable probability

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

different." Id. at 694.

It is well-established that a criminal defendant does not have a constitutional right

to have appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes,

463 U.S. 745, 751 (1983). The Supreme Court has explained:

For judges to second-guess reasonable professional judgments and impose

on appointed counsel a duty to raise every "colorable" claim suggested by a

client would disserve the ... goal of vigorous and effective advocacy ....

Nothing in the Constitution or our interpretation of that document requires

such a standard.

Id. at 754.

Strategic and tactical choices regarding which issues to pursue on appeal are

"properly left to the sound professional judgment of counsel." United States v. Perry, 908

F.2d 56, 59 (6th Cir. 1990). In fact, "the hallmark of effective appellate advocacy" is the

"process of 'winnowing out weaker arguments on appeal and focusing on' those more likely

to prevail." See Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at

751-52). "Generally, only when ignored issues are clearly stronger than those presented

will the presumption of effective assistance of appellate counsel be overcome." Monzo v.

Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate counsel may deliver deficient

performance and prejudice a defendant by omitting a "dead-bang winner," defined as an

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issue which was obvious from the trial record and would have resulted in reversal on

appeal. See Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).

Petitioner has failed to show that by omitting the claims presented in his motion for

relief from judgment, appellate counsel's performance fell outside the wide range of

professionally competent assistance. Appellate counsel presented legitimate issues on

direct appeal, including a challenge to the sufficiency of the evidence that Petitioner

contends entitles him to relief. Such issues, although ultimately unsuccessful, were

substantial. The claims presented in the motion for relief from judgment are not obviously

stronger than the ones raised by appellate counsel on direct appeal. To be sure, the trial

court, in considering the prejudice component of the cause and prejudice test, found that

the claims lacked merit. Petitioner has thus failed to demonstrate that appellate counsel

was ineffective so as to establish cause to excuse his procedural default.

Lastly, Petitioner has not demonstrated that a fundamental miscarriage of justice has

occurred. The miscarriage of justice exception requires a showing that a constitutional

violation probably resulted in the conviction of one who is actually innocent. See Murray v.

Carrier, 477 U.S. 478, 479-80 (1986). To be credible, such a claim of actual innocence

requires a petitioner to support the allegations of constitutional error with new reliable

evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Actual

innocence means factual innocence, not mere legal insufficiency. Bousley v. United States,

523 U.S. 614, 623 (1998). Petitioner has made no such showing. These claims are thus

barred by procedural default, and do not warrant habeas relief.

VI. Certificate of Appealability

A petitioner must receive a certificate of appealability ("COA") in order to appeal the

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denial of a habeas petition for relief from either a state or federal conviction. 28 U.S.C. §§

2253(c)(1)(A), (B). A court may issue a COA "only if the applicant has made a substantial

showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a federal

district court rejects a habeas claim on the merits, the substantial showing threshold is met

if the petitioner demonstrates that reasonable jurists would find the district court's

assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529

U.S. 473, 484-85 (2000). "A petitioner satisfies this standard by demonstrating that jurists

of reason could disagree with the district court's resolution of his constitutional claims or

that jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)(citation omitted). In

applying this standard, a district court may not conduct a full merits review, but must limit

its examination to a threshold inquiry into the underlying merit of the petitioner's claims. Id.

at 336-37. The Court concludes that jurists of reason would not find the Court's

assessment of Petitioner's claims debatable or wrong. The Court thus declines to issue

Petitioner a certificate of appealability.

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VI. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas

corpus is DENIED WITH PREJUDICE.

IT IS FURTHER ORDERED That a certificate of appealability is DENIED. 

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: August 3, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of

record on August 3, 2011, by electronic mail and upon Deshawn Whitman, #259030,

Earnest C. Brooks Correctional Facility, 2500 South Sheridan Drive, Muskegon Heights,

MI 49444 by ordinary mail.

s/Ruth A. Gunther 

Case Manager

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