UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

KEVIN POTTER, 

Petitioner, 

CASE NO. 2:09-CV-12049 

v. CHIEF JUDGE GERALD E. ROSEN 

MAGISTRATE JUDGE PAUL J. KOMIVES 

WILLIE SMITH, 

Respondent. 

 / 

REPORT AND RECOMMENDATION

Table of Contents

I. RECOMMENDATION .......................................................................................... 2 

II. REPORT ............................................................................................................ 2 

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

B. Factual Background Underlying Petitioner’s Conviction ........................................ 4 

C. Standard of Review ..................................................................................... 6 

D. Ineffective Assistance of Counsel ..................................................................... 8 

 1. Clearly Established Law .................................................................... 8 

2. Trial Counsel .................................................................................. 9 

 3. Appellate Counsel ............................................................................ 12 

F. Recommendation Regarding Certificate of Appealability ......................................... 13 

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

 2. Analysis ........................................................................................ 14 

G. Conclusion ................................................................................................ 15 

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

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

habeas corpus. The Court should also deny petitioner a certificate of appealability. 

II. REPORT: 

A. Procedural History

Petitioner Kevin Potter is a state prisoner, currently confined at the Ionia Maximum 

Correctional Facility in Ionia, Michigan. 

On November 11, 2003, petitioner was convicted of conspiracy to commit first degree 

murder, MICH. COMP. LAWS § 750.157(a), 750.316, following a jury trial in the Wayne County 

Circuit Court. On December 9, 2003, he was sentenced to a mandatory term of life imprisonment 

without parole. 

Petitioner appealed as of right to the Michigan Court of Appeals raising, through counsel, the 

following claims: 

I. The admission into evidence of the Appellant’s statements violated the 

corpus delicti rule, thereby requiring that he be granted a new trial. 

II. The failure to instruct Appellant’s jury that conspiracy is a specific intent 

crime constituted reversible error as it denied him a fair trial. 

III. The trial court’s identification instruction constituted reversible error as it 

improperly reduced the prosecution’s burden of proof thereby denying 

Appellant a fair jury trial. 

The court of appeals found no merit to petitioner’s claims, and affirmed his conviction and sentence. 

See People v. Potter, No. 253716, 2005 WL 1490058 (Mich. Ct. App. June 23, 2005) (per curiam). 

Petitioner, proceeding pro se, sought leave to appeal these same issues to the Michigan 

Supreme Court. The Supreme Court denied petitioner’s application for leave to appeal in a standard 

order. See People v. Potter, 474 Mich. 938, 706 N.W.2d 23 (2005). 
3 

On August 26, 2006, petitioner filed a motion for relief from judgment in the trial court 

pursuant to MICH. CT. R. 6.500-.508, raising the following claims: 

I. Petitioner was denied his Sixth and Fourteenth Amendment right to effective 

assistance of counsel and due process under the U.S. Constitution where: 

 

A. Trial counsel failed to conduct a complete pretrial investigation. 

B. Trial counsel failed to make timely objections to several improper 

 remarks by the prosecutor during closing arguments. 

C. Appellate counsel failed to argue, on direct appeal, that trial counsel 

 was ineffective for failing to conduct a complete pretrial investigation 

 and for failing to make timely objections. 

 On March 29, 2007, the trial court denied petitioner’s motion for relief from 

judgment. The Michigan Court of Appeals and Michigan Supreme Court denied petitioner’s 

applications for leave to appeal in standard orders, based on petitioner’s “failure to meet the 

burden of establishing entitlement to relief under MCR 6.508(D).” People v. Potter, No. 

284488, (Mich. Ct. App. Aug. 29, 2008); People v. Potter, 483 Mich. 894, 760 N.W.2d 484 

(2009). 

Petitioner, proceeding pro se, filed the instant application for a writ of habeas corpus on May 

27, 2009. As grounds for the writ of habeas corpus, he raises the claims that he raised in his motion 

for relief of judgment. 

Respondent filed his answer on December 17, 2009. He contends that petitioner’s claims are 

procedurally defaulted and petitioner has failed to show that the failure to review the claims would 

result in a miscarriage of justice. 
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B. Factual Background Underlying Petitioner’s Conviction 

The evidence adduced at trial was accurately summarized in respondent’s answer: 

On September 19, 2002, victim Mario Allen was to be sentenced for his 

involvement in a drug case along with two co-defendants, Donald DeShazo (aka 

Brandon Kemp; and “D”) and James Williams (aka “Jed”) (Trial Transcript (TT) 

11/3/03, pp 65-70). The victim’s mother, Patricia Allen, testified that in the very 

early morning hours of September 19, 2002, she saw a conversion van parked in 

front of their home off and on throughout the morning. (TT 11/3/03, pp. 45-47). At 

approximately 7:30 a.m. her son got up to go to court for his sentencing. As Ms. 

Allen was upstairs in the house waking up her 12-year old, she heard approximately 

six gunshots. (TT 11/3/03, pp 47-48). She immediately ran outside and saw her son 

lying in the driveway, and she saw the same van from earlier near the corner. (TT 

11/3/03, pp. 49). When the prosecutor showed Ms. Allen a photo of the van, Allen 

identified it as the van she saw that morning. (TT 11/3/03, pp 49-50). Ms. Allen also 

testified that she was aware her son sold drugs with “D” and “Jed.” (TT 11/3/03, pp 

50, 52-53, 54). 

Michigan State Police Trooper David Vansingel testified regarding an 

undercover drug buy he made from the victim and the victim’s co-defendants. (TT 

11/3/03, pp 64-65). Trooper Vansingel testified that he offered them $9,500.00 while 

undercover to purchase cocaine from them, and that as a result, all three were 

charged with delivery or conspiracy to deliver cocaine. (TT 11/3/03, p 67). All three 

men entered guilty pleas and were to be sentenced on September 19, 2002, but the 

victim was shot; the two co-defendants withdrew their pleas as of Petitioner’s trial 

date, the trial of those co-defendants has yet to take place. (TT 11/3/03, pp 70-71). 

Kahari Wright testified that at approximately 10:00 a.m. or 10:30 a.m. on 

September 19, 2003, he went to purchase marijuana. When he got to the location 

where he wanted to buy the drugs, he saw Petitioner along with a man known as 

“Wig.” (TT 11/3/03, pp 91-92). Petitioner and Wig said Wright was just who they 

had been looking for, and proceeded to ask him to help them burn the van and he was 

to be paid $1,000.00 for his assistance. (TT 11/3/03, pp 95, 100). Wright, Wig, and 

Petitioner then went to the van, approximately five or six blocks from the drug 

house. When the prosecutor showed Wright the same van photo that was shown to 

the victim’s mother, Wright identified it as the van in question. (TT 11/3/03, p 96). 

Petitioner then went to a gas station and came back with a container of gas. Petitioner 

proceeded to douse a blanket with gasoline and the blanket was treated like a wick 

and it hung out of one of the doors. Wright was standing to the back of the van, and 

when Petitioner lit the fire, the inside of the van blew up and the fire melted Wright’s 

skin. (TT 11/3/03, pp 97-99; 11/4/03, pp 4-5). Later, when Wright got home, EMS 

was called due to the pain he was experiencing from the burns. (TT 11/3/03, p 100). 
5 

Wright was in the hospital for several days, and when he returned home, 

Petitioner came to see him, which was not unusual since they had known one another 

all their lives. Petitioner told him that the van they burned on September 19, 2003 

had been used in a murder. Petitioner said that Wig was driving the van and that 

Petitioner was dressed all in black and did the shooting. (TT 11/3/03, pp 102, 103; 

11/4/03, pp 14-15). Wright testified that Petitioner told him he did the shooting 

because “D” and “Jed”—both of whom Wright identified from photographs as the 

same men who were the victim’s co-defendant in the drug case—asked him to in 

exchange for $4,000.00. (TT 11/3/03, pp 104-105). Petitioner told Wright that the 

van had to be burned because it had been involved in a murder. When Wright asked 

for the $1,000.00 he had been promised, Petitioner said he would talk to Wig. (TT 

11/3/03, p 106). 

Kahari Wright’s mother, Vicki Wright, also testified at trial. She stated that 

on September 20, 2002, the day after her son came home with burns on his body, 

Petitioner came by her home while her son was still in the hospital. (TT 11/3/03, pp 

75-76). Petitioner spoke with Mrs. Wright and her husband and told them he wanted 

to tell the truth about what happened with the fire. (TT 11/3/03, pp 76-77). Petitioner 

asked them if they had heard about the man who had been killed in his driveway, and 

he spoke of a mask and a van. (TT 11/3/03, p 79). Petitioner wanted them to know 

that their son did not know what was happening with the van. (TT 11/3/03, p 81). 

Mrs. Wright also testified that they had known Petitioner for ten or twelve years and 

that he had been to their home before. (TT 11/3/03, p 84). 

Scott Klass, an electrician, testified that he heard gunshots on the morning of 

September 19, 2002 and that he saw a man dressed all in black with a rifle and that 

he saw a van then come down the street, and the van was similar in style to the 

picture shown to him by the prosecutor. (TT 11/4/03, pp 61-63). Beverly Moore, 

who lives across the street from the victim’s family, testified that on the morning in 

question she saw a van parked in front of the Wright house and she wondered why it 

was blocking their driveway. (TT 11/5/03, pp 8-9). Ms. Moore heard noises but 

assumed it was firecrackers, but when she went outside she saw a “ninja” all in black 

with a gun in his hand. (TT 11/5/03, p 13). Another neighbor, Katherine McFarland, 

also testified about hearing shots and seeing a man all in black with a big, AK 47 

type gun in his hands. (TT 11/5/03, pp 39-40). 

Marcus Gantz testified that while he and Petitioner were both in jail, 

Petitioner told him about the murder and that Petitioner had been doing some work 

for “D” on his dope house when “D” hired him to do another job. (TT 11/5/03, pp 

59-62). Petitioner told him that the other job “D” had him perform was to kill Mario 

because “D” and “Jed” had entered pleas they did not want to enter and they knew 

Mario was going to testify. Petitioner told Gantz that the murder had to happen 

before sentencing on September 19, 2002. (TT 11/5/03, pp 65-66). Petitioner told 

Gantz about a van that was used, and he said he shot the victim in the morning and 
6 

did so with an AK 47. Petitioner also told him he was with a man named “Wig” 

when the shooting occurred. (TT 11/5/03, pp 64-65). Petitioner also told Gantz about 

“a van and a kid” and how Petitioner got the kid to help with burning a van but the 

kid had been burned up and almost passed away and the police then got involved. 

(TT 11/5/03, pp 66-67). 

Answer, at 3-6. 

 

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). 

“[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). “A 

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) 
7 

(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. “[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, “[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 “clearly established federal law as determined by 

the Supreme Court.” Thus, “§ 2254(d)(1) restricts the source of clearly established law to [the 

Supreme] Court’s jurisprudence.” Williams, 529 U.S. at 412. Further, the “phrase ‘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 “clearly 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) “does not 

require citation of [Supreme Court] cases–indeed, 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 
8 

them.” Early, 537 U.S. at 8; see also, Mitchell, 540 U.S. at 16. Further, although the requirements 

of “clearly 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.). 

D. Ineffective Assistance of Counsel

Petitioner raises three claims challenging the assistance rendered by his trial and appellate 

counsel. The Court should conclude that petitioner is not entitled to habeas relief on these claims. 

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 “counsel was not functioning as the ‘counsel’ guaranteed to 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, “[t]here is 

no reason for a court deciding an ineffective assistance claim . . . to address both components of 

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course 

should be followed.” 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). “[D]efendant must overcome the 
9 

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

strategy.’” Strickland, 466 U.S. at 689 (citation omitted). “[T]he court should recognize that counsel 

in 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 the factfinder, “whether 

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

doubt respecting guilt.” Id. at 695. 

2. Trial Counsel

Petitioner first claims trial counsel conducted an inadequate pretrial investigation. Petitioner 

argues that on the day of the murder and van burning incident Detroit police officer S. McNair 

obtained a statement from a seventy-one year old man named Jay Derby. Petitioner contends that 

Derby indicated that he saw Kahari Wright alone set on fire the van that was involved in the murder. 

However, Wright testified at trial that he was standing at the back of the van when it caught fire and 

that he was burned. “It is well established that counsel has a duty to make reasonable investigation 

or to make reasonable decisions that make particular investigation unnecessary.” Strickland v. 

Washington, 466 U.S. 668, 691 (1984). If petitioner was able to locate Derby, Derby would have 

offered cumulative testimony to that of Wright who stated he himself was present when the van was 

burned. Derby would not be able to place Wright, rather than petitioner, at the murder scene which 

was a totally different place from that where the arson on the van occurred. Defense counsel 

therefore could have reasonably believed that calling Derby as a witness would be unnecessary and 

“[b]ecause advocacy is an art and not a science, and because the adversary system requires deference 

to counsel’s informed decisions, strategic choices must be respected in these circumstances if they 
10 

are based on professional judgment.” Id. at 681. It was also established in Strickland that “when 

counsel’s assumptions are reasonable given the totality of the circumstances and when counsel’s 

strategy represents a reasonable choice based upon those assumptions, counsel need not investigate 

lines of defense that he has chosen not to employ at trial.” Id. 

Moreover, “Claims that counsel failed to call witnesses are not favored on federal habeas 

review because the presentation of witnesses is generally a matter of trial strategy and speculation 

about what witnesses would have said on the stand is too uncertain.” Woodfox v. Cain, --- F.3d ---, 

2010 WL 2505580, *26 (5th Cir. June 21, 2010) “For this reason, we require petitioners making 

claims of ineffective assistance based on counsel’s failure to call a witness to demonstrate prejudice 

by ‘nam[ing] the witness, demonstrate[ing] that the witness was available to testify and would have 

done so, set[ting] out the content of the witness’s proposed testimony, and show[ing] that the 

testimony would have been favorable to a particular defense.” Id. (citing Day v. Quarterman, 566 

F.3d 527, 538 (5th Cir. 2009)). Petitioner named the witness and attached a preliminary complaint 

record as Exhibit 1 to his brief. However, petitioner has failed to demonstrate that the witness was 

available to testify or would have done so. More importantly, petitioner cannot show that the 

testimony would have been favorable to his particular defense. Based on the preliminary complaint 

record, Derby saw Wright at the scene where the van was set on fire. However, Wright admitted at 

trial he was present at the scene of the arson and that he was a lookout for petitioner. Derby was not 

present at the murder scene, which was different than the arson scene. Therefore, because Wright 

already testified he was present at the arson scene, trial counsel could have reasonably found that 

further investigation or eliciting testimony from Derby would not be necessary. 

Petitioner next claims that trial counsel failed to make timely objections to several improper 
11 

remarks by the prosecutor during closing arguments. Petitioner alleges that counsel should have 

objected to the prosecutor’s comments regarding defense witness Markell Boyd, who testified that 

he and prosecution’s witness Marcus Gantz—who testified against petitioner—had a plan wherein 

they would go through petitioner’s paperwork and obtain information to testify against petitioner to 

obtain deals for themselves. See Trial Tr., 11/6/03 at 5-8. The prosecutor stated “[a]nd who knows, 

maybe Mr. Potter will testify for him [Boyd] in his trial that’s coming up—or one of his trials that’s 

coming up.” See Id. at 94. 

On cross examination, the prosecutor was able to challenge Boyd’s testimony regarding a 

scheme with Gantz by pointing out that Gantz at trial was not able to identify by name the “kid” 

petitioner spoke about when petitioner told Gantz about the arson of the van. See id. at 13. The fact 

that Boyd, on the other hand, knew the “kid’s” name as Kahari Wright when Boyd testified can lead 

to the presumption that Boyd may have obtained Wright’s name by talking with petitioner himself in 

regard to testifying for the defense. See id. at 13-14. Boyd also admitted that in the days before he 

testified, he and petitioner were sitting in custody together and petitioner spoke to Boyd and asked 

him to tell the truth. See id. at 17-18. The prosecutor stated “he [Boyd] only testified to what Potter 

told him to say when they were sitting together waiting to testify, or waiting to come into court. He 

[Boyd] had very limited knowledge of this case and that’s what he learned from Kevin Potter when 

Kevin Potter told him what to say.” See id. at 95-96. In his rebuttal the prosecutor also stated “or are 

we to think that Mr. Boyd and Mr. Potter have been working on deals for each other to see how they 

can help each other.” See id. at 114. 

Finally, petitioner argues that trial counsel failed to object to comments by the prosecutor in 

his closing arguments. The prosecutor argued that its own witness, Marcus Gantz, would suffer 
12 

hardships in prison for testifying against petitioner. The prosecutor stated “Marcus Gantz has to go 

to prison as a snitch. What do you think happens to people that go to prison as a snitch? It’s not a 

pleasant experience.” Id. at 88. 

 Petitioner argues that none of the above remarks by the prosecutor were supported by the 

evidence presented, and thus trial counsel should have objected to them. It is established that the 

prosecution may not argue purported facts that are not in evidence and are prejudicial. See United 

States v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995) However, prosecutors “must be given leeway to 

argue reasonable inferences from the evidence.” United States v. Collins, 78 F.3d 1021, 1040 (6th

Cir. 1996). For habeas relief to be warranted on the basis of prosecutorial misconduct, it is not 

enough that the prosecutor’s conduct was “undesirable or even universally condemned.” Darden v. 

Wainwright, 477 U.S. 168, 181 (1986). Rather, the misconduct must have “so infected the trial with 

unfairness as to make the resulting conviction a denial of due process.” Id. (internal quotation 

omitted). Here, the prosecutor has not committed any misconduct under clearly established federal 

law. Rather, the prosecutor argued that there was a reasonable inference that petitioner may have 

told Boyd what to say at trial, and petitioner perhaps might return the favor at Boyd’s upcoming 

trial. It could also be reasonably inferred that Gantz would suffer hardships once he returned to 

prison for being a “jailhouse snitch.” Therefore, petitioner’s claims that counsel failed to object to 

improper remarks by the prosecutor are meritless. 

3. Appellate Counsel 

Petitioner claims that appellate counsel failed to argue, on direct appeal, that trial counsel 

was ineffective for failing to conduct a complete pretrial investigation and for failing to make timely 

objections. However, as explained above petitioner’s trial counsel claims are meritless. In the 
13 

appellate counsel context, a showing of prejudice requires a showing that petitioner’s claims would 

have succeeded on appeal. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); McCleese v. United 

States, 75 F.3d 1174, 1180 (7th Cir. 1996). As explained in this Report, all of petitioner’s claims are 

without merit, and thus petitioner cannot show that counsel was ineffective for failing to raise them 

on direct appeal. 

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] 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 “[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 

“substantial 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] substantial 

showing requires the applicant to “demonstrate 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) 
14 

(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, “[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 “[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 “state 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 “why 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 

If the Court accepts my recommendation regarding the merits of petitioner’s claims, the 

Court should conclude that petitioner is not entitled to a certificate of appealability. It is not 

reasonably debatable that trial counsel did not provide ineffective assistance at trial. It is also clear 

that the prosecutor did not make any inappropriate remarks. Therefore, it is not reasonably debatable 

that trial counsel was not ineffective for failing to object to such remarks. Finally, because 
15 

petitioner’s trial counsel claims are without merit it is not debatable that his appellate counsel claims 

are without merit. Accordingly, the Court should conclude that petitioner is not entitled to a 

certificate of appealability. 

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. If the Court accepts this recommendation the 

Court should also deny petitioner a certificate of appealability, 

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 
16 

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 

PAUL J. KOMIVES 

UNITED STATES MAGISTRATE JUDGE 

Dated: 8/4/10

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 August 4, 2010.

s/Eddrey Butts 

Case Manager