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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ARTHUR SUMERLIN, III,

Petitioner, CASE NO. 2:09-CV-10459

 HONORABLE GEORGE CARAM STEEH

v. UNITED STATES DISTRICT JUDGE

BLAINE LAFLER, 

Respondent.

_____________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND

DENYING CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case under 28 U.S.C. § 2254 filed by Arthur Sumerlin, (“Petitioner”), a state

inmate confined at a Michigan correctional facility. Petitioner is serving a mandatory life sentence

as well as lesser terms for his Wayne Circuit Court jury trial conviction of two counts of first degree

murder, MICH. COMP. LAW 750.316, assault with intent to commit murder, MICH. COMP. LAW

750.83, armed robbery, MICH.COMP. LAW 750.529, felon in possession of a firearm, MICH.COMP.

LAW 750.224f, and possession of a firearm during the commission of a felony. MICH.COMP. LAW

750.227b. Petitioner claims that he is incarcerated in violation of his constitutional rights.

Respondent, through the Michigan Attorney General’s Office, has filed a response, arguing that

Petitioner’s claims are without merit and procedurally barred. For the reasons which follow, the

petition will be denied.

II. Procedural History

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Petitioner's convictions arise from the shooting death of Pia Stanton and Corey Brown, and

the assault of Jovan Stanton. Three men broke into Stanton's home, placed pillow cases on the

victims' heads and shot them after robbing them of cash and jewelry. Stanton survived a gunshot

wound to the head and identified Petitioner as one of the perpetrators. Another man who left the

house as the perpetrators arrived also identified Petitioner. 

Following his conviction Petitioner pursued an appeal of right in the Michigan Court of

Appeals. Petitioner’s appointed appellate counsel filed a brief that raised two claims:

I. Petitioner's convictions should be reversed because there was insufficient evidence

to find for them; alternatively the motion for directed verdict should have been

granted.

II. Petitioner is entitled to a new trial where the court refused to instruct the jury as

to the lack of production of telephone records.

Petitioner also filed a pro se brief with the Court of Appeals asserting the following

additional claim:

I. Petitioner was denied his right to counsel and a fair trial where a photographic

lineup was conducted when Petitioner was not in custody but was the focus of the

investigation and his trial attorney's failure to move to suppress the identifications

denied him the right to effective assistance of counsel.

The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion.

People v. Sumerlin, 2005 Mich. App. LEXIS 3301 (Mich. Ct. App. Dec. 29, 2005).

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

raising the same three claims he raised in the Court of Appeals as well as five new claims:

I. The prosecution and police failure to preserve evidence taken from a SUV Yukon

violated Petitioner's Sixth Amendment right to effective cross-examination and his

due process rights to a fair trial; and Petitioner was deprived of his Sixth Amendment

right to the effective assistance of counsel, where counsel failed to effectively seek

out and challenge the missing evidence.

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II. The Prosecutor deprived Petitioner of his constitutional right to a fair trial when

he engaged in pervasive misconduct designed to bolster the credibility of the

prosecution's witnesses, while denigrating the defense and appealed to the

sympathies of the jury during rebuttal argument; and Petitioner was deprived of

effective assistance of counsel, where counsel failed to object to the misconduct.

III. Petitioner was deprived of his Sixth Amendment right to effective assistance of

counsel, by counsel's faulty advice which prevented Petitioner from testifying on his

own behalf.

IV. Petitioner was deprived of his Sixth and Fourteenth Amendment rights to

effective assistance of appellate counsel, where counsel failed to investigate, research

and raise significant issues on appeal of right, that would have required reversal.

V. Petitioner was deprived of his due process rights to a fair trial, by the cumulative

effect of errors.

The Michigan Supreme Court denied leave to appeal. People v. Sumerlin, 476 Mich. 855,

718 N.W.2d 342 (2006).

Petitioner returned to the trial court and filed a motion for relief from judgment. The motion

asserted the five new claims that Petitioner raised for the first time in his application for leave to

appeal filed in the Michigan Supreme Court. On October 17, 2007, the trial court issued an order

denying Petitioner's motion for relief. The trial court found that the claims were barred from review:

Defendant has not shown "good cause" under Michigan Court Rule 6.508(D)(3) as

to why the issues presented in this motion were not previously raised on appeal.

Further, he has not proven actual prejudice.

Opinion and Order, at 4. 

Petitioner filed a delayed application for leave to appeal the trial court's decision in the

Michigan Court of Appeals, but the court denied Petitioner's delayed application “for failure to meet

the burden of establishing entitlement to relief under Michigan Court Rule 6.508(D).” People v.

Sumerlin, Mich. Ct. App. No. 282943 (May 19, 2008). The Michigan Supreme Court subsequently

denied leave to appeal by citing to the same court rule. People v. Sumerlin, 482 Mich. 1063, 757

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N.W.2d 474 (2008).

Petitioner’s application for writ of habeas corpus raises the following claims:

I. Petitioner was denied his right to counsel and a fair trial where a photographic

lineup was conducted when Petitioner was not in custody but was the focus of the

investigation and his trial attorney's failure to move to suppress the identifications

denied him the right to effective assistance of counsel.

II. The Prosecutor deprived Petitioner of his constitutional right to a fair trial when

he engaged in pervasive misconduct designed to bolster the credibility of the

prosecution's witnesses, while denigrating the defense and appealed to the

sympathies of the jury during rebuttal argument; and Petitioner was deprived of

effective assistance of counsel, where counsel failed to object to the misconduct.

III. Petitioner was deprived of his Sixth Amendment right to effective assistance of

counsel, by counsel's faulty advice which prevented Petitioner from testifying in his

own defense.

IV. Petitioner was deprived of his Sixth and Fourteenth Amendment rights to

effective assistance of appellate counsel, where counsel failed to investigate, research

and raise significant issues on appeal of right, that would have required reversal.

V. Petitioner was deprived of his due process rights to a fair trial, by the cumulative

effect of errors.

III. Facts

The evidence presented at trial showed that on August 17, 2003, Pia Stanton was at her house

in Detroit with her niece, Jovan Stanton, Jovan's boyfriend, Corey Brown, Jovan's eight-year-old

sister, Alexus Berry, and Jovan's ten-year-old cousin, Armanda Stanton. At around 1:00 p.m., Pia

Stanton's friend, Andre Dixon, came to the house. While he was there, Dixon heard Pia Stanton

answer a telephone call, and about ten to fifteen minutes after that call, someone came to the door.

As Dixon left the house, he saw two or three men on the porch, including a man he later identified

as Petitioner. 

Jovan, Brown, Alexus, and Armanda were upstairs. Armanda saw Dixon leave the house

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as the men came in. One of the men, identified by Jovan as Petitioner and by Armanda as Horace

Clark, then came upstairs and ordered them to put pillow cases over their heads. Jovan complied

but left the pillowcase pulled up on one side. Petitioner or Horace Clark then took Jovan, Brown,

Alexus, and Armanda downstairs at gunpoint. 

When they arrived on the main floor, Pia Stanton was on the floor near the front door,

wrestling with one man while another stood by. Jovan identified co-defendant Horace Clark as the

man wrestling with Pia Stanton and co-defendant Donmisce Clark as the man standing next to her.

Armanda, on the other hand, identified Petitioner and co-defendant Donmisce Clark as the men

wrestling with Pia Stanton. 

Petitioner led Jovan, Brown, Armanda, and Alexus into the basement at gunpoint. Once in

the basement, Petitioner ordered them to sit on the floor. They heard bumping noises from upstairs,

then heard a gunshot. After the gunshot, the bumping noises stopped.

Petitioner ordered Jovan to give him her jewelry and her money, and Jovan complied.

Donmisce Clark then came downstairs and told Petitioner to take them into the basement bathroom.

Jovan, Armanda, and Alexus all went into the bathroom, but Brown stayed outside. Jovan and

Brown talked through the bathroom door for a few minutes. The girls then heard another gunshot,

this time from the basement, and Brown fell silent.

Petitioner then ordered Jovan out of the bathroom, and told the two girls that if anyone asked

who did it, they were to respond that "Chi-Town" did. Jovan felt a gun pushed against her head on

the other side of the pillowcase and was shot in the head. When she regained consciousness, she

waited until she did not hear any noises in the house and then let Armanda and Alexus out of the

bathroom. Brown lay dead on the floor of the basement. They went upstairs and saw Pia Stanton

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laying in the middle of the floor, bleeding from a shot to the head. They noticed that a black Yukon

was missing, and the car keys were gone. 

Jovan called 9-1-1, and when the police arrived, she was on the front porch holding the

pillowcase to her head. Jovan spent two days in Henry Ford Hospital. Both Pia Stanton and Corey

Brown died from a single gunshot wound to the head. Jovan told an officer at the scene that one of

the men was Horace Clark, whom she had known for years as "TJ." She also stated that the man

later identified as Petitioner had gold teeth. Although Petitioner did not have gold teeth at the time

of trial, Investigator Frazer Adams testified that one can purchase removable gold teeth that fit over

one's existing teeth. 

On September 4, 2003, Jovan looked at a photographic array and identified Petitioner. On

September 25, 2003, she looked at a second photographic array and identified Donmisce Clark.

Alexus never identified any of the men. Armanda was shown three photographic arrays, but did not

identify anyone. She did, however, identify Petitioner, and co-defendants Horace and Donmisce

Clark at trial. She admitted that she told the police at the scene that two of the men were named Eric

and Mike, but said she had heard those names from her aunt's friend, Lattonya Ware.

Investigator Frazer Adams eventually went to Atlanta, Georgia to contact Donmisce Clark

and Petitioner. He spoke to Petitioner, who at the time was not under arrest or in custody. Petitioner

stated that he came to Detroit on August 16, 2003, with Donmisce Clark to buy drugs. They went

to Horace Clark's house, and then the three men went to Pia Stanton's house to buy the drugs. Pia

Stanton told them she was out of drugs and would call when she got more. The men left, and

Donmisce Clark called Pia Stanton the next day to see if she had any drugs. She called back and

spoke to Donmisce Clark, and then all three men went back to her house.

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Petitioner stated that they arrived at Pia Stanton's home around 2:00 p.m., and another man

was leaving as they arrived. Two other men were at the home. Petitioner, Donmisce Clark, and

Horace Clark went to the kitchen, got their drugs, and left. Petitioner and Donmisce Clark took

Horace Clark back to his house, and then left for Georgia. According to Petitioner, about thirty

minutes to an hour after they had started back to Georgia, Horace Clark's girlfriend called Donmisce

Clark and told him that Horace Clark had killed Pia Stanton. Petitioner and Donmisce Clark threw

the drugs out of the car and continued to Georgia. Petitioner stated that when they went to buy the

drugs, none of the men had a gun and no one shot anyone else.

Horace Clark's ex-girlfriend, Katrina Brown, testified that Horace Clark, Petitioner, and

Donmisce Clark were at her house on August 17, 2003, and got a call from a woman. After

Donmisce Clark spoke to the woman, the men left and never returned. About thirty to forty minutes

after the men left, Derek Ware called Katrina Brown and told her that Horace Clark had shot

someone. Katrina called Horace Clark at his grandfather's house in Detroit and arranged a

conference call between herself, Derek Ware, and Horace Clark. Derek Ware then told Horace

Clark that he had heard that Clark had killed someone.

Petitioner, Donmisce Clark, and Horace Clark were charged with two counts of first-degree

murder and two counts of felony-murder for the deaths of Pia Stanton and Corey Brown, as well as

one count of assault with intent to murder regarding Jovan Stanton. In addition, Petitioner was

charged with armed robbery, felon in possession of a firearm, and felony firearm. After a joint jury

trial the jury convicted the defendants as charged.

 IV. Analysis

A. Standard of Review

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Petitioner's claims are reviewed against the standards established by the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA

provides:

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 proceedings.

28 U.S.C. § 2254(d).

"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)

(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). "[T]he 'unreasonable application' prong

of the statute 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). However, "[i]n order for a federal court 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. "A state court's determination that

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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, U.S. , 131 S. Ct. 770, 789,

178 L. Ed. 2d 624 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). "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. . . . As a

condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state

court's ruling on the claim being presented in federal court was so lacking in justification that there

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

fairminded disagreement." Id. at 786-87 (internal quotation omitted).

Section 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 at the time the state court renders its decision. See Williams, 529 U.S. at 412. Section 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 them." Early v. Packer, 537 U.S. 3, 8 (2002). "[W]hile the principles of "clearly

established law" are to be determined solely by resort to Supreme Court rulings, the decisions of

lower federal courts may be instructive in assessing the reasonableness of a state court's resolution

of an issue." Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing Williams v. Bowersox, 340

F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp. 2d 354, 359 (E.D. Mich. 2002).

Lastly, a federal habeas court must presume the correctness of state court factual

determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear

and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

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B. Identification Procedure

Petitioner first claims that the photographic line-up procedure was conducted in violation of

his Sixth Amendment right to counsel because there was no attorney representing his interests in

attendance at the procedure. He also asserts that his trial counsel was ineffective for failing to

challenge the admissibility of the resulting identification testimony. Respondent asserts that the

state court's adjudication of the claim was reasonable.

The Michigan Court of Appeals considered and rejected this claim as follows:

Finally, in a supplemental standard 4 brief, defendant argues that he was

denied his right to counsel and a fair trial when photographic lineups were

conducted, where he was not yet in custody but was the focus of the investigation.

As part of this argument, defendant additionally contends that his attorney was

ineffective for failing to move to suppress the identifications based on lack of

counsel. According to defendant, his attorney should have had the photographic

identifications thrown out and then counsel should have argued that there was no

independent basis for the in-court identifications. 

Only cursory treatment need be given to this argument. In People v.

Hickman, 470 Mich. 602, 607, 611; 684 N.W.2d 267 (2004), our Supreme Court held

that the right to counsel attaches only to identifications conducted at or after the

initiation of adversarial judicial criminal proceedings, such as by formal charge, a

preliminary hearing, an indictment, an information, or an arraignment. The Court

stated, "To the extent that People v. Anderson, 389 Mich. 155; 205 N.W.2d 461

(1973), goes beyond the constitutional text and extends the right to counsel to a time

before the initiation of adversarial criminal proceedings, it is overruled." Id. at

603-604. The cases relied on by defendant arose out of the now-rejected Anderson

decision. The first photographic array with Jovan Stanton in which she identified

defendant was undertaken prior to the initiation of adversarial judicial criminal

proceedings. n13 Moreover, the police record relied on by defendant indicates that

a show-up attorney was indeed present at this initial photo lineup in order to protect

the rights of any suspects identified by the witnesses. The record indicates that a

second and third photo lineup with other witnesses in which defendant was identified

took place on September 25, 2003. Again, the record reflects that counsel was

present at these lineups or arrays. There was no error, and counsel was not

ineffective for failing to pursue a meritless position. People v. Darden, 230 Mich.

App. 597, 605; 585 N.W.2d 27 (1998).

Sumerlin, 2005 Mich. App. LEXIS 3301, at *35-37.

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Under clearly established Supreme Court law, a pre-trial photographic identification is not

a critical stage under the Sixth Amendment at which counsel is required to be present. United States

v. Ash, 413 U.S. 300, 321 (1973). Petitioner has no federal constitutional right to have counsel

present at an investigative photographic identification procedure at which he or she is identified.

Hanks v. Jackson, 123 F. Supp. 2d 1061, 1071 (E.D. Mich. 2000); see also Payne v. Smith, 207 F.

Supp. 2d 627, 645 (E.D. Mich. 2002) (Sixth Amendment does not guarantee the accused the right

to counsel at a photographic array). Therefore, even setting aside the finding of the state appellate

court found that a defense attorney was present at the procedure, Petitioner is not entitled to habeas

relief based on this claim because he had no constitutional right to counsel at that stage of the

investigation.

Petitioner's claim that his trial attorney was ineffective for failing to object to the

identification procedure under state law is also unavailing. Under the Michigan Constitution, the

right to counsel at a photographic identification attaches once the prosecutor initiates adversarial

judicial criminal proceedings. People v. Hickman, 470 Mich. 602, 607 (2004); See Mattox v. Davis,

549 F. Supp. 2d 877, 930 (W.D. Mich. 2008). Here, the identification procedure occurred on

September 4, 2003. The formal felony complaint - as opposed to the arrest warrant referred to by

Petitioner - was filed on September 10, 2003. Thus, Petitioner had no right to counsel at the

identification procedure under state law either. Moreover, the state appellate court made a factual

finding that an attorney was present at the identification procedure. This factual finding is presumed

to be true. 28 U.S.C. § 2254(e)(1). Therefore, because Petitioner's state-law based claim is

meritless, his trial counsel was not ineffective for failing to raise the claim in the trial court. See

Smith v. Bradshaw, 591 F.3d 517, 523 (6th Cir. 2010); O'Hara v. Brigano, 499 F.3d 492, 506 (6th

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Cir. 2007).

C. Claims Raised in Motion for Relief From Judgment

Respondent contends that review of Petitioner's remaining claims is barred by procedural

default because Petitioner presented them to the state courts on collateral review and those courts

relied upon a procedural bar to deny him relief.

Federal habeas relief may be precluded on a claim 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); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). 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 determine whether a state court relied upon a procedural rule in denying relief. See

Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991).

Petitioner presented his remaining claims to the state courts in his motion for relief from

judgment. The Michigan Supreme Court 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 United States Court of Appeals for the Sixth Circuit

has recently held 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 Rule 6.508(D) is ambiguous as to

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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 denied relief on procedural grounds. The trial court cited

Michigan Court Rule 6.508(D)(3)(a) and concluded that Petitioner had not shown cause, i.e., that

appellate counsel was ineffective, or prejudice because his underlying claims lacked merit, nor had

he demonstrated his actual innocence. Accordingly, these 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, 753 (1991).

Petitioner's fourth habeas claim asserts ineffective assistance of appellate counsel as cause

to excuse the procedural default of his other claims. Petitioner has not shown that appellate counsel

was ineffective. In order to establish ineffective assistance of appellate counsel, Petitioner must

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

the defense." 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 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 v. Washington, 466 U.S. 668, 690 (1984). Therefore, judicial scrutiny of counsel's

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performance must be "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 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 and viable issues concerning the

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sufficiency of the evidence and the failure of the trial court to instruct the jury on the prosecutor's

failure to produce telephone records. Petitioner has not shown that appellate counsel's strategy in

presenting these claims and not raising the claims contained in the motion for relief from judgment

was deficient or unreasonable. Moreover, the unraised claims, prosecutorial misconduct, ineffective

assistance of counsel for failing to advise Petitioner to testify, and cumulative error, are certainly

not "dead bang winners." The claimed acts of misconduct were not objected to at trial, and were

therefore not preserved for appeal. And the decision to advise Petitioner not to testify was

presumptively a reasonable strategic one. Petitioner has thus failed to demonstrate that appellate

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

A federal court need not address the issue of prejudice when a petitioner fails to establish

cause to excuse a procedural default. See Smith v. Murray, 477 U.S. 527, 533 (1986); Long v.

McKeen, 722 F.2d 286, 289 (6th Cir. 1983). Petitioner's second, third, fourth, and fifth claims are

thus barred by procedural default and do not warrant federal habeas relief.

IV. Conclusion

The Court will deny the Petition for Writ of Habeas Corpus. The Court will also deny

Petitioner a Certificate of Appealability. Before Petitioner may appeal this Court’s dispositive

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 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). Likewise, when a district court denies a habeas

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petition on procedural grounds without reaching the prisoner’s underlying constitutional claims, a

certificate of appealability should issue, and an appeal of the district court’s order may be taken, if

the petitioner shows that jurists of reason would find it debatable whether the petitioner states a valid

claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling. Slack, 529 U.S. at 484. When a plain

procedural bar is present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in dismissing the petition or

that the petition should be allowed to proceed further. In such a circumstance, no appeal would be

warranted. Id. “The district court must issue or deny a certificate of appealability when it enters

a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll.

§ 2254. For the reasons stated in this opinion, the Court will deny a Certificate of Appealability

because jurists of reason would not find this Court’s resolution of Petitioner’s claims to be debatable

or that he should receive encouragement to proceed further. Siebert v. Jackson, 205 F. Supp. 2d 727,

735 (E.D. Mich. 2002). 

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V. Order

IT IS ORDERED that the Petition for Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.

Dated: June 6, 2011

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

June 6, 2011, by electronic and/or ordinary mail and also to

Arthur Sumerlin at Ryan Correctional Facility, 17600 Ryan

Road, Detroit, MI 48212.

S/Josephine Chaffee

Deputy Clerk

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