UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

LAWRENCE ROY DUCKETT,

Petitioner,

Case Number 08-14852-BC

v. Honorable Thomas L. Ludington

CAROL HOWES,

Respondent.

_______________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

AND LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Lawrence Roy Duckett, a Michigan prisoner, seeks a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Petitioner was convicted of armed robbery, Mich. Comp. Laws §

750.529, following a jury trial in the Oakland County Circuit Court and was sentenced as a habitual

offender, third offense, to 10-to-25 years imprisonment, Mich. Comp. Laws § 769.11. In his

application, he contends that the prosecutor knowingly presented perjured testimony during his trial,

and challenges the Court’s decision to deny the jury’s request to view a video of the incident and

the effectiveness of trial and appellate counsel. The claims lack merit and the petition will be

denied. A certificate of appealability and leave to proceed in forma pauperis on appeal will also be

denied. 

I.

Petitioner’s conviction arises from the robbery of a White Castle restaurant in Ferndale,

Michigan on August 30, 2004. The Michigan Court of Appeals set forth the underlying facts of the

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case, which are presumed correct on habeas review, see Monroe v. Smith, 197 F. Supp. 2d 753, 758

(E.D. Mich. 2001), aff’d. 41 F. App’x 730 (6th Cir. 2002), as follows:

On August 30, 2004, defendant entered a White Castle restaurant and demanded that

the cashier, Cheavon Kirk, put money from her cash register into a paper bag. Kirk

testified that defendant, who was wearing a jacket, made a gesture with his right

hand to his left side. According to Kirk, defendant then lifted his T-shirt and, in

defendant’s waistband, Kirk saw what she believed to be the handle of a revolver.

Kirk testified that defendant “just lifted up enough for me to know to hurry up to put

the money in the bag,” and she complied with defendant’s demand.

Macra Taylor, the restaurant manager, testified that she saw defendant at the cash

register, but could not see his belt line. Taylor assumed that defendant had a gun

when she saw his right hand in his jacket. She also testified that defendant took the

right hand out of the jacket to flick or pull the right side of his jacket around his hip.

Nataki Garrison testified that she could see defendant from her position behind Kirk,

but did not see him do anything with his hands, though his right hand appeared to be

inside his jacket. Garrison assumed that defendant might have a gun in his right

hand, but she did not see a gun. Leon DeLeon testified that he saw defendant

holding the paper bag with his left hand, but could not see his right hand.

At trial, defendant did not dispute that he took the money from Kirk, but claimed that

he did not possess a weapon or use force. Instead, defendant maintains that he

simply told Kirk to put the money in the bag. It is undisputed that, after he took the

money, defendant fled from the restaurant and was apprehended by the police. The

police did not find a weapon on defendant when he was arrested, but the police

recovered the bag containing some of the money. Other money apparently dropped

out of the bag as defendant fled the restaurant.

People v. Duckett, No. 260311, 2006 WL 1751855, at *1 (Mich. Ct. App. June 27, 2006) (per

curiam).

After his conviction and sentencing, Petitioner, through counsel, filed an appeal of right with

the Michigan Court of Appeals, raising claims concerning a supplemental jury instruction addressing

the armed robbery charge and the effectiveness of trial counsel for agreeing to it. He also filed a pro

se supplemental brief raising claims concerning the failure to play a video recording of the incident

for the jury and the effectiveness of trial counsel for failing to object. The Michigan Court of

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Appeals denied relief on the claims and affirmed Petitioner’s conviction. Id. Petitioner filed an

application for leave to appeal with the Michigan Supreme Court, which was denied in a standard

order. People v. Duckett, 722 N.W.2d 869 (Mich. 2006).

Petitioner subsequently filed a motion for relief from judgment with the state trial court

asserting that trial counsel was ineffective for failing to impeach Cheavon Kirk with her prior

inconsistent statements and for failing to make timely objections at trial, that appellate counsel was

ineffective for not raising those issues on direct appeal, and that the trial court’s supplemental jury

instruction violated his due process rights and trial counsel was ineffective for agreeing to it. The

trial court denied the motion pursuant to Michigan Court Rule 6.508(D)(3)(a) and (b)(i) finding that

Petitioner had failed to establish cause and prejudice. People v. Duckett, No. 04-198351-FC

(Oakland Co. Cir. Ct. Dec. 11, 2007) (unpublished). Petitioner filed a delayed application for leave

to appeal in the Michigan Court of Appeals, which was denied because he “failed to meet the burden

of establishing entitlement to relief under MCR 6.508(D).” People v. Duckett, No. 283311 (Mich.

Ct. App. April 25, 2008) (unpublished). Petitioner also filed an application for leave to appeal with

the Michigan Supreme Court, which was similarly denied. People v. Duckett, 482 Mich. 1030, 769

N.W.2d 194 (2008).

Petitioner thereafter filed the present habeas petition asserting the following claims:

I. He was denied due process by the prosecutor’s presentation of false

testimony of Cheavon Kirk.

II. He was denied due process by the trial court’s refusal to allow the

deliberating jury to view the actual recording of the surveillance video that

was available.

III. He was denied the effective assistance of trial counsel where counsel failed

to represent him in the manner required by law.

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IV. He was denied the effective assistance of appellate counsel on direct appeal.

The respondent, through the Attorney General’s Office, has filed an answer to the petition

contending that it should be denied because the claims are barred by procedural default and/or lack

merit. Petitioner has filed a reply.

II.

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996), which govern this case, “circumscribe[d]” the

standard of review federal courts must apply when considering applications for a writ of habeas

corpus raising constitutional claims, including claims of ineffective assistance of counsel. See

Wiggins v. Smith, 539 U.S. 510, 520 (2003).

As amended, 28 U.S.C. § 2254(d) permits a federal court to issue the writ only if the state

court decision on a federal issue “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court,” or amounted to “an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998).

Mere error by the state court will not justify issuance of the writ; rather, the state court’s application

of federal law “must have been objectively unreasonable.” Wiggins, 539 U.S. at 520-21 (quoting

Williams v. Taylor, 529 U.S. 362, 409 (2000) (internal quotes omitted)). Additionally, this Court

must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1) (“In a

proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant

to the judgment of a State court, a determination of a factual issue made by a State court shall be

presumed to be correct.”); see also West v. Seabold, 73 F.3d 81, 84 (6th Cir.1996) (stating that “[t]he

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court gives complete deference to state court findings of historical fact unless they are clearly

erroneous”).

The United States Supreme Court has explained the proper application of the “contrary to”

clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court’s] clearly

established precedent if the state court applies a rule that contradicts the governing

law set forth in our cases . . . .

A state-court decision will also be contrary to this Court’s clearly established

precedent if the state court confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives at a result

different from [the Court’s] precedent.

Williams, 529 U.S. at 405-06.

The Supreme Court has held that a federal court should analyze a claim for habeas corpus

relief under the “unreasonable application” clause of § 2254(d)(1) “when a state-court decision

unreasonably applies the law of this Court to the facts of a prisoner’s case.” Id. at 409. The Court

further explained that:

an unreasonable application of federal law is different from an incorrect application

of federal law. Indeed, a federal habeas court may not issue the writ simply because

that court concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. Rather, that

application must be objectively unreasonable. This distinction creates a substantially

higher threshold for obtaining relief than de novo review. 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, _ U.S. _ 130 S. Ct. 1855, 1862, 1864-65 (2010) (finding that the state court’s rapid

declaration of a mistrial on grounds of jury deadlock was not unreasonable even where “the jury

only deliberated for four hours, its [questions] were arguably ambiguous, the trial judge’s initial

question to the foreperson was imprecise, and the judge neither asked for elaboration of the

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foreperson’s answers nor took any other measures to confirm the foreperson’s prediction that a

unanimous verdict would not be reached”) (internal quotation marks and citations omitted); see also

Knowles v. Mirzayance, _ U.S. _, 129 S. Ct. 1411, 1419 (2009) (noting that the Supreme Court “has

held on numerous occasions that it is not ‘an unreasonable application of clearly established Federal

law’ for a state court to decline to apply a specific legal rule that has not been squarely established

by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Phillips

v. Bradshaw, 607 F.3d 199, 205 (6th Cir. 2010); Murphy v. Ohio, 551 F.3d 485, 493-94 (6th Cir.

2009); Eady v. Morgan, 515 F.3d 587, 594-95 (6th Cir. 2008); Davis v. Coyle, 475 F.3d 761, 766-67

(6th Cir. 2007); King v. Bobby, 433 F.3d 483, 489 (6th Cir. 2006); Rockwell v. Yukins, 341 F.3d 507,

511 (6th Cir. 2003) (en banc).

III.

As an initial matter, the respondent contends that several of Petitioner’s habeas claims are

barred by procedural default. “Federal Courts [on habeas review] are not required to address a

procedural-default issue before deciding against Petitioner on the merits.” Hudson v. Jones, 351

F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). “Judicial

economy might counsel giving the [other] question priority, for example, if it were easily resolvable

against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state

law.” Lambrix, 520 U.S. at 525. Such is the case here. Petitioner’s claims lack merit and the

procedural issues are complex. Accordingly, the Court will proceed on the merits of the habeas

claims and need not resolve the procedural default issues.

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IV.

A.

Petitioner first asserts that he is entitled to habeas relief because the prosecution presented

false testimony from Cheavon Kirk regarding Petitioner’s possession of a gun and his appearance.

In particular, he contests the differences between her preliminary examination testimony that she

had seen guns more than 100 times and her later preliminary examination testimony that she had

seen revolvers five or six times, her initial preliminary examination testimony that Petitioner was

wearing a white t-shirt and her later preliminary examination testimony that he was wearing an

orange shirt or jacket over a white t-shirt, and her initial trial testimony describing the incident in

which she did not mention a weapon with her follow-up testimony that Petitioner was armed with

a gun. Petitioner did not raise this specific claim before the state courts – rather he asserted that

counsel was ineffective for failing to impeach Kirk with her prior testimony. Because the state

courts have not addressed this claim, the Court’s review of the issue is de novo. See Dorn v. Lafler,

601 F.3d 439, 443 (6th Cir. 2010) (when a state court fails to consider an issue or does not

specifically address whether the alleged error constitutes a denial of federal constitutional rights, the

deference due under 28 U.S.C. § 2254(d) does not apply, and habeas review is de novo); Higgins

v. Renico, 470 F.3d 624, 630 (6th Cir. 2006) (quoting Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.

2003), and citing Wiggins v. Smith, 539 U.S. 510, 534 (2003)).

The United States Supreme Court has made clear that the “deliberate deception of a court

and jurors by the presentation of known and false evidence is incompatible with the rudimentary

demands of justice.” Giglio v. United States, 405 U.S. 150, 153 (1972). It is thus well-settled that

“a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must

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be set aside if there is any reasonable likelihood that the false testimony could have affected the

judgment of the jury.” United States v. Agurs, 427 U.S. 97, 103 (1976) (footnote omitted); see also

Napue v. Illinois, 360 U.S. 264, 271 (1959); Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998). A

habeas petitioner bears the burden of proving that the disputed testimony constituted perjury.

Napue, 360 U.S. at 270. To prevail on a claim that a conviction was obtained by evidence that the

government knew or should have known to be false, a defendant must show that the statements were

actually false, that the statements were material, and that the prosecutor knew that the statements

were false. Coe, 161 F.3d at 343.

Petitioner has made no such showing. He has failed to establish that Kirk’s testimony was

false, rather than merely inconsistent or a clarification or supplementation of her prior testimony.

The fact that a witness contradicts herself or changes her story does not establish perjury. See

United States v. Wolny, 133 F.3d 758, 763 (10th Cir. 1998); United States v. Lebon, 4 F.3d 1, 2 (1st

Cir. 1993). More importantly, Petitioner has not identified facts which show that the prosecutor

knowingly presented false information. Conclusory allegations, without evidentiary support, do not

provide a basis for habeas relief. See Cross v. Stovall, 238 F. App’x 32, 39-40 (6th Cir. 2007);

Prince v. Straub, 78 F. App’x 440, 442 (6th Cir. 2003); Workman v. Bell, 178 F.3d 759, 771 (6th

Cir. 1998) (conclusory allegations of ineffective assistance of counsel do not justify federal habeas

relief); see also Washington v. Renico, 455 F.3d 722, 733 (6th Cir. 2006) (bald assertions and

conclusory allegations do not provide sufficient basis for an evidentiary hearing in habeas

proceedings). While Kirk’s testimony was certainly material, Petitioner has not shown that her

testimony was false or that the prosecution knowingly presented false testimony. Habeas relief is

not warranted on this claim.

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B.

Petitioner next asserts that he is entitled to habeas relief because the trial court admitted the

CD or DVD of the surveillance video recording, but denied the jury’s request to play the recording.

The record indicates that the police viewed the recording at the restaurant and obtained still

photographs from the recording. The record also shows that defense counsel and Petitioner viewed

the recording prior to the second preliminary examination. See 9/16/04 Tr., pp. 3, 8. At trial,

Ferndale Police Officer Patrick Lemke described what he saw on the recording, stating that it

showed Petitioner’s right hand moving to the left side of his body. The trial court also admitted still

photographs from the video recording. Cheavon Kirk identified one photograph as depicting

Petitioner reaching into his jacket. On cross-examination, Petitioner admitted that he appeared to

be reaching into his jacket in the photograph. During deliberations, the jury asked to view the

recording, but the trial court denied the request because it did not have the proper equipment to play

the recording. Defense counsel did not object to the admission of CD/DVD and the still photographs

and accepted the trial court’s instruction to the jury.

The Michigan Court of Appeals denied relief on this claim finding that Petitioner had waived

the issue by failing to object to the admission of the CD/DVD without it being played and by

agreeing to the trial court’s response to the jury denying the request to view the recording. Duckett,

2006 WL 1751855 at *3. The court further concluded that trial counsel was not ineffective in this

regard because Petitioner had not demonstrated that the refusal to play the recording shifted the

burden of proof to the defense or deprived him of a substantial defense. Id. at *3-4. To the extent

that the Michigan Court of Appeals addressed the merits of this issue, its decision is neither contrary

to Supreme Court precedent nor an unreasonable application of federal law. Furthermore, even

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under a de novo standard of review, Petitioner is not entitled to relief as this claim lacks merit.

Trial court errors in the application of state procedure or evidentiary law, particularly

regarding the admissibility of evidence, are generally not cognizable as grounds for federal habeas

relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Serra v. Michigan Dept. of Corrections,

4 F.3d 1348, 1354 (6th Cir. 1993). Only when an evidentiary ruling is “so egregious that it results

in a denial of fundamental fairness,” may it violate due process and warrant habeas relief. See Bugh

v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). While the right of the accused to present a defense

has long been recognized as “a fundamental element of due process, ” Washington v. Texas, 388

U.S. 14, 19 (1967), that right is not unlimited and may be subject to reasonable restrictions. See

United States v. Scheffer, 523 U.S. 303, 308 (1998). As explained by the Supreme Court,

“well-established rules of evidence permit trial judges to exclude evidence if its probative value is

outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to

mislead the jury.” Holmes v. South Carolina, 547 U.S. 319, 326-27 (2006) (citations omitted).

Excluded evidence violates the right to present a defense only if the exclusion is arbitrary or

disproportionate or infringes on a weighty interest of the defendant. Scheffer, 523 U.S. at 308. In

determining whether the exclusion of evidence infringes upon a defendant’s rights, the question is

not whether the excluded evidence would have caused the jury to reach a different result. Rather,

the question is whether the defendant was afforded “a meaningful opportunity to present a complete

defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S.

479, 485 (1984)); see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

Additionally, the failure to preserve potentially useful evidence constitutes a denial of due

process only if the defendant can show bad faith by the government. See Arizona v. Youngblood,

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488 U.S. 51, 57-58 (1988); see also Illinois v. Fisher, 540 U.S. 544, 548 (2004) (per curiam). When

the government fails to preserve evidentiary material, a defendant must show that: (1) the

government acted in bad faith in failing to preserve the evidence; (2) the exculpatory value of the

evidence was apparent before its destruction; and (3) the nature of the evidence was such that the

defendant would be unable to obtain comparable evidence by other means. Monzo v. Edwards, 281

F.3d 568, 580 (6th Cir. 2002). A habeas petitioner has the burden of establishing that the police

acted in bad faith in failing to preserve evidence. See Malcum v. Burt, 276 F. Supp. 2d 664, 683

(E.D. Mich. 2003). The mere fact that the police had control over evidence and failed to preserve

it is insufficient by itself to establish bad faith, nor will bad faith be found in the negligent failure

to preserve evidence. Id. Thus, “where the government is negligent, even grossly negligent, in

failing to preserve potential exculpatory evidence, the bad faith requirement is not satisfied.” United

States v. Wright, 260 F.3d 568, 571 (6th Cir. 2001).

In this case, the record is devoid of evidence that the police or prosecution acted in bad faith

– a necessary requirement to establish a constitutional violation – by not being able to play the video

recording for the jury. Second, the video recording, while relevant, was not exculpatory as to the

charged offense, according to the testimony presented at trial. Third, given that the police officer

described the video recording, that defense counsel and Petitioner had the opportunity to view the

recording prior to trial, and that still photographs of the recording were admitted into evidence, the

defense was able to criticize the recording and related evidence. Given such circumstances,

Petitioner has failed to establish a constitutional violation. He has not shown that the failure to play

the video recording for the jury deprived him of a substantial defense or otherwise rendered his trial

fundamentally unfair. Habeas relief is not warranted on this claim.

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C.

Petitioner next asserts that he is entitled to habeas relief because trial counsel was ineffective

for failing to impeach Cheavon Kirk with her allegedly false testimony and/or prior inconsistent

statements and because trial counsel was ineffective for failing to object to the trial court’s handling

of the video recording.

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth

a two-pronged test for determining whether a habeas petitioner has received the ineffective

assistance of counsel. First, a petitioner must prove that counsel’s performance was deficient. This

requires a showing that counsel made errors so serious that he or she was not functioning as counsel

as guaranteed by the Sixth Amendment. 466 U.S. at 687. Second, the petitioner must establish that

counsel’s deficient performance prejudiced the defense. Counsel’s errors must have been so serious

that they deprived the petitioner of a fair trial or appeal. Id.

With respect to the performance prong, a petitioner must identify acts that were “outside the

wide range of professionally competent assistance” in order to prove deficient performance. Id. at

690. The reviewing court’s scrutiny of counsel’s performance is highly deferential. Id. at 689. The

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. The

petitioner bears the burden of overcoming the presumption that the challenged actions might be

considered sound trial strategy. Id. at 689.

To satisfy the prejudice prong under Strickland, a petitioner must show that “there is a

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

would have been different.” Id. at 694. A reasonable probability is one that is sufficient to

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undermine confidence in the outcome. Id. “On balance, the benchmark for judging any claim of

ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the [proceeding] cannot be relied on as having produced a just result.”

McQueen v. Scroggy, 99 F.3d 1302, 1311-12 (6th Cir. 1996) (quoting Strickland, 466 U.S. at 686).

Petitioner first asserts that trial counsel was ineffective for failing to properly impeach

Cheavon Kirk. As discussed supra, however, Petitioner has not shown that Kirk’s testimony was

false or necessarily inconsistent. Rather, the record reveals that she merely clarified or

supplemented her testimony in response to questions from counsel. Furthermore, the record shows

that defense counsel did cross-examine Kirk about her version of events, including her familiarity

with guns, her observations of Petitioner, and her actions at the time of the robbery. Impeachment

is a matter of trial strategy, and counsel will not be deemed ineffective merely because it appears,

in hindsight, that other tactics may have been effective as well. See, e.g., Dell v. Straub, 194 F.

Supp. 2d 629, 651 (E.D. Mich. 2002). Petitioner has failed to establish that defense counsel erred

or that he was prejudiced by counsel’s conduct in questioning Cheavon Kirk.

Petitioner also asserts that trial counsel was ineffective for failing to object to the trial court’s

handling of the video recording of the robbery. As noted, the Michigan Court of Appeals denied

relief on this claim finding that Petitioner had not demonstrated that trial counsel was ineffective.

This decision is neither contrary to Supreme Court precedent nor an unreasonable application

thereof. The record reveals that the video recording was unavailable at the time of trial due to

technical difficulties. Defense counsel may have reasonably determined that it was beneficial to the

defense to accept that fact and to instead challenge the trial testimony and the still photographs

which could allow for some argument as to whether Petitioner was armed during the robbery.

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Moreover, Petitioner has not shown that the admission of the CD/DVD without playing the video

recording, along with the admission of the related testimony and still photographs, deprived him of

a substantial defense or rendered his trial fundamentally unfair. Consequently, Petitioner cannot

establish that defense counsel erred and/or that he was prejudiced by counsel’s conduct. Petitioner

has not shown that counsel was ineffective under the Strickland standard. Habeas relief is not

warranted on this claim.

D.

Lastly, Petitioner asserts that he is entitled to habeas relief because appellate counsel was

ineffective for failing to raise the foregoing issues on direct appeal. In order to establish ineffective

assistance of appellate counsel, Petitioner must satisfy the Strickland standard and show that

counsel’s performance was deficient and that counsel’s deficient performance prejudiced him. See

Strickland, 466 U.S. at 687. However, 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

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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 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).

In this case, Petitioner has failed to show that by omitting the claims presented in his motion

for relief from judgment (and on habeas review) appellate counsel’s performance fell outside the

wide range of professionally competent assistance. Moreover, given that the foregoing claims lack

merit, Petitioner cannot establish that appellate counsel was ineffective under the Strickland

standard. Habeas relief is not warranted on this claim.

V.

Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED

WITH PREJUDICE.

Before Petitioner may appeal the Court’s decision, a certificate of appealability must issue.

See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue “only

if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). When a district court rejects a habeas claim on the merits, the substantial showing

threshold is met if 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 could conclude

the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, a court may not conduct a full merits

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review, but must limit its examination to a threshold inquiry into the underlying merit of the claims.

Id. at 336-37. Based upon the foregoing discussion, the Court concludes that Petitioner has not

made a substantial showing of the denial of a constitutional right as to his habeas claims.

Accordingly, it is ORDERED that a certificate of appealability is DENIED. 

It is further ORDERED that leave to proceed in forma pauperis on appeal is DENIED, as

any appeal would be frivolous and cannot be taken in good faith. See Fed. R. App. P. 24(a).

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: March 21, 2011

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney of record herein by electronic means and on

Lawrence Duckett, #234843 at Florence Crane Correctional Facility, 38

Fourth Street, Coldwater, MI 49036 by first class U.S. mail on March

21, 2011.

s/Tracy A. Jacobs 

TRACY A. JACOBS

1:08-cv-14852-TLL-CEB Doc # 11 Filed 03/21/11 Pg 16 of 16 Pg ID 727