UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROD STERLING HOLMES, # 333682,

Petitioner,

v. Case Number: 09-CV-12823

Honorable Nancy G. Edmunds

CARMEN D. PALMER,

Respondent.

___________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND LEAVE TO

PROCEED ON APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Rod Sterling Holmes,

currently incarcerated at the Michigan Reformatory in Ionia, Michigan, was convicted by a

Wayne County, Michigan, circuit court jury of (1) interfering with a police investigation,

MICH.COMP.LAWS § 750.483a(4)(b), (2) carrying a concealed weapon (CCW), MICH.COMP.

LAWS § 750.227, (3) three counts of assault with intent to murder, MICH. COMP. LAWS §

750.83, (4) three counts of felon in possession of a firearm, MICH. COMP. LAWS § 750.227f,

and (5) three counts of possession of a firearm during the commission of a felony, MICH.

COMP. LAWS § 750.227b. He was sentenced to (1) two to ten years in prison for the

interfering-with-a-police-investigation conviction, (2) one to five years in prison for the CCW

conviction, (3) thirty to sixty years in prison for each of the assault convictions, and (4) one

to five years in prison for each of the felon-in-possession convictions to be served

consecutive to concurrent sentences of two years in prison for each of the felony-firearm

convictions. In his pro se pleadings, Holmes alleges: (1) ineffective assistance of trial
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counsel, (2) insufficient evidence to show that he assaulted a police officer, and (3)

insufficient evidence to support his two convictions for felony firearm. For the reasons

stated below, the Court will deny the petition and will also decline to issue a certificate of

appealability and leave to proceed on appeal in forma pauperis.

II. BACKGROUND

The Michigan Court of Appeals summarized the facts of the case. The recitation of

those facts are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). They

are as follows:

Defendant’s convictions arise out of a dispute between Curtis Bell and

him that occurred on August 31, 2006. Bell was at his home in Detroit with

Gary Jefferson and Brenda Patterson. Bell was sitting on his porch that

evening when defendant pulled up and called Bell over to his car. Defendant

got out of the car and punched Bell in the jaw, claiming that Bell “had some

guys” steal defendant’s van. Defendant and “George,” who had been inside

the car with defendant, then went into Bell’s home and instigated a physical

altercation with Jefferson. Patterson saw that George was carrying a gun

and immediately left the house. She heard a gunshot as she was exiting

through the back door. Jefferson was shot in the shoulder.

Bell called the police. As he was talking to police officers in front of his

house, he heard rustling in the bushes and heard defendant say “Hey, Curt.”

He then heard two gunshots, and he and the officers took cover. Shortly

thereafter, the police observed defendant quickly leave his nearby home and

speed away in his vehicle. Officers stopped the car and arrested him. The

police recovered a semi-automatic handgun in the trunk of the car. They also

recovered an assault rifle from the attic and a .44-caliber revolver from under

a seat cushion during a search of defendant’s home. Testing confirmed that

the rifle was the weapon that was fired toward Bell and the officers outside

Bell’s home.

People v. Holmes, No. 276591, 2008 WL 5056691, at *1 (Mich.Ct.App. Oct. 14, 2008).

Following his sentencing, Holmes filed a claim of appeal in the Michigan Court of

Appeals, raising the same claims as raised in his habeas petition, plus a sentencing-error

claim. The Court of Appeals affirmed Holmes’s convictions, but remanded the case to the
3

trial court for the limited purpose of amending the judgment of sentence to reflect that his

sentences for his felony-firearm and CCW convictions run concurrently. Holmes, No.

276591, 2008 WL 5056691, at *1.

Subsequently, Holmes filed an application for leave to appeal the Court of Appeals’s

decision in the Michigan Supreme Court, raising the same claims and adding the following:

(1) appellate counsel was ineffective for not filing an evidentiary hearing. On April 28,

2009, the Michigan Supreme Court denied Holmes’s application. People v. Holmes, 483

Mich. 977, 764 N.W.2d 248 (2009). It does not appear that Holmes filed a writ of certiorari

in the United States Supreme Court or a post-conviction motion in the state court. Rather,

on July 17, 2009, he filed this habeas petition.

III. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this

Court’s habeas corpus review of state-court decisions. Specifically, 28 U.S.C. § 2254(d)

states in pertinent part:

(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 at

the State court proceedings.

Under (d)(1), a federal court may grant a writ of habeas corpus under two different

clauses, both of which provide two bases for relief. Under the “contrary to” clause, a
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federal court may grant habeas relief if the state court arrives at a conclusion opposite to

that reached by the Supreme Court on a question of law or if the state court decides a case

differently than the Supreme Court has decided on a set of materially indistinguishable

facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The words “contrary to” should be

construed to mean “diametrically different, opposite in character or nature, or mutually

opposed.” Id.

Under the “unreasonable application” clause, a federal court may grant habeas relief

if the state court identifies the correct governing legal principle from the Supreme Court’s

decisions but unreasonably applies that principle to the facts. Williams, 529 U.S. at 407-08.

Relief is also available under this clause if the state court decision either unreasonably

extends or unreasonably refuses to extend a legal principle from Supreme Court precedent

to a new context. Id., at 407; Arnett v. Jackson, 393 F.3d 681, 686 (6th Cir. 2005). The

proper inquiry for the “unreasonable application” analysis is whether the state court

decision was “objectively unreasonable” and not simply erroneous or incorrect. Williams,

529 U.S. at 407; Lordi v. Ishee, 384 F.3d 189, 195 (6th Cir. 2004).

In analyzing whether a state court decision is “contrary to” or an “unreasonable

application” of clearly established Supreme Court precedent, a federal court may only look

to the holdings, as opposed to dicta, of the Supreme Court’s decisions as of the time of the

relevant state-court decision. Lockyer v. Andrade, 538 U.S. 63, 71 (2003); Williams, 529

U.S. at 412.
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IV. DISCUSSION

A. Claim I–Ineffective Assistance of Counsel

In his first claim, Holmes alleges that his trial counsel was ineffective for failing to

seek suppression of the guns discovered in his house during a warrantless police search.

He claims that his grandmother, who allowed the officers into the home, was incompetent

to consent to the search.

In order to establish ineffective assistance of counsel, a petitioner must show that

his or her attorney’s performance was deficient and that the deficiency prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The Supreme Court’s

decision in Strickland “qualifies as ‘clearly established Federal law’” for purposes of

evaluating ineffective-assistance-of-counsel claims. Williams, 529 U.S. at 391.

An attorney’s performance is deficient if counsel “made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment” and if “counsel's representation fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 687-88. The prejudice prong of Strickland

requires Holmes to demonstrate “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

“Unless a defendant makes both showings [deficient performance and resulting prejudice],

it cannot be said that the conviction . . . resulted from a breakdown in the adversary

process that renders the result unreliable.” Id. at 687.

Judicial scrutiny of a defense attorney’s conduct is “highly deferential-and doubly
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deferential when it is conducted through the lens of federal habeas.” Yarborough v. Gentry,

540 U.S. 1, 6 (2003). A habeas petitioner must establish a violation of Strickland’s

two-pronged test and show that the state applied Strickland to the facts in an objectively

unreasonable manner. Bell v. Cone, 535 U.S. 685, 698-99 (2002). “Because of the

difficulties inherent in making the evaluation, a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance."

Wilson v. Parker, 515 F.3d 682, 698 (6th Cir. 2008) (citing Strickland, 466 U.S. at 687-88).

The Michigan Court of Appeals, in addressing this issue, stated:

Defendant first argues that he was denied the effective assistance of

counsel because defense counsel failed to timely seek suppression of the

firearms found in defendant’s home during a warrantless search of the home.

We disagree. Because defendant failed to raise this issue in a motion for a

new trial or evidentiary hearing in the trial court, and this Court denied his

motion to remand, our review is limited to errors apparent on the record.

Whether a person has been denied effective assistance of counsel is

a mixed question of fact and constitutional law. To establish a claim of

ineffective assistance of counsel, a defendant must demonstrate that his

counsel’s performance fell below an objective standard of reasonableness

and that counsel’s representation so prejudiced the defendant that it deprived

him of a fair trial. A defendant must also overcome the strong presumption

that counsel’s actions constituted sound trial strategy. With respect to the

prejudice requirement, a defendant must demonstrate a reasonable

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

have been different.

Defendant contends that trial counsel should have timely sought

suppression of the firearms recovered at his residence because his elderly

grandmother, Annie Killian, was incompetent to consent to the search of the

home. It is undisputed that Killian owned the home and, therefore, had

authority to consent to its search. Rather, defendant challenges her capacity

to consent to the search because she lacked the mental competence. A

consent to search permits a search and seizure without a warrant when the

consent is unequivocal, specific, and freely and intelligently given. Whether

a person’s consent is valid depends on the totality of the circumstances. A

police officer’s determination that consent is valid must be objectively

reasonable.
7

Here, the totality of the circumstances confirms that Killian’s consent

to search was valid. Sergeant Michael Jackson testified that he explained to

Killian the allegations involving defendant and that he was looking for

firearms because of the allegations. Killian acknowledged that she

understood why he was at her home; she consented to Jackson’s searching

her home and she signed the consent form. Further, she informed Jackson

that there were weapons in the home and that they belonged to defendant.

Although Killian’s granddaughter wrote the “n” at the end of Killian’s signature

on the consent form and Killian testified at trial that she did not recall signing

her name, she admitted that the signature on the form was hers. Moreover,

although she testified that she did not recall the police being at her home and

was unable to remember defendant’s name at the time of trial, these factors

have no bearing on her competency to consent to the search at the time of

the search. These facts establish an objectively reasonable basis for

believing that Killian’s consent to search was valid.

Holmes, No. 276591, 2008 WL 5056691, at *2 (citations and quotations omitted).

“Where defense counsel’s failure to litigate a Fourth Amendment claim competently

is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth

Amendment claim is meritorious and that there is a reasonable probability that the verdict

would have been different absent the excludable evidence in order to demonstrate actual

prejudice.” See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Here, Holmes cannot

establish that the evidence would have been suppressed or that there is a reasonable

probability that the outcome of the trial could have been different even absent the guns

found in his home; he cannot show, with a reasonable probability that, had counsel filed a

motion to suppress, it would have been granted, and further, even if a motion to suppress

had been made and granted, there is not a reasonable probability that the result of his trial

would have been different.

In this case, the state court finding that consent was given to the search is supported

by the record. Even if Holmes could establish that the proper consent to the search had
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not been given, the police had probable cause to obtain a warrant based upon the facts

that he lived in the home, was identified by the assailant, and returned to the home after

the assault. The police had probable cause to reasonably believe that the gun used in the

assault was at that location. It is reasonable to conclude that, even had Holmes timely

challenged the search, the guns would have inevitably been discovered and admitted at

trial.

Against that backdrop, the Court concludes that Holmes has failed to meet his

burden. He is therefore not entitled to habeas relief on his ineffective-assistance-of-counsel

claim.

B. Claim II and III–Insufficient Evidence

In his second and third claims, Holmes claims that the prosecutor failed to produce

sufficient evidence at trial to support his assault conviction on Officers Jayme Syroid and

Dennis Koczera, and that there was insufficient evidence to support his two convictions for

felony-firearm.

The Due Process Clause of the 14th Amendment protects an accused in a criminal

case against conviction except upon proof beyond a reasonable doubt. In re WInship, 397

U.S. 358, 364 (1970). The standard of review for these claims focuses on whether, "after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 319 (1979). In determining whether the state court

reasonably applied that standard, the state court’s findings of fact must be afforded a

presumption of correctness unless it is established by clear and convincing evidence that

the factual determination in the state court was erroneous. 28 U.S.C. § 2254(e)(1); West
9

v. Seabold, 73 F.3d 81, 83 (6th Cir. 1996), cert. denied, 518 U.S. 1027 (1996). In other

words, the reviewing court does not re-weigh the evidence or re-determine the credibility

of the witnesses whose demeanor has been observed by the trial court. Marshall v.

Lonberger, 459 U.S. 422, 434 (1983). It is the province of the factfinder to weigh the

probative value of the evidence and resolve any conflicts in testimony. Neal v. Morris, 972

F.2d 675, 679 (6th Cir. 1992).

1. Assault with Intent to Murder conviction

First, Holmes alleges that there was insufficient evidence produced at trial to support

his conviction for the assaults upon Officers Jayme Syroid and Dennis Koczera. A review

of the record, however, supports his conviction.

The Michigan Court of Appeals reviewed and rejected Holmes’s insufficiency claim

regarding his assault conviction, stating:

Defendant next argues that there was insufficient evidence to support

his assault with intent to commit murder convictions involving the two police

officers because the doctrine of transferred intent is inapplicable when a

completed crime is committed against an intended victim, and the unintended

victims do not suffer physical injury. We disagree. When reviewing a claim

of insufficient evidence, we must view the evidence in the light most

favorable to the prosecution and determine whether a rational trier of fact

could find the defendant guilty beyond a reasonable doubt. Whether the

doctrine of transferred intent is applies to the two police officers is a question

of law that we review de novo.

An assault with intent to commit murder is proved by establishing: (1)

an assault, (2) with an actual intent to kill, (3) that would make the killing

murder if successful. Further, under the doctrine of transferred intent, it is

sufficient for a prosecutor to show that the defendant possessed the requisite

intent; the prosecutor need not show that the defendant’s intent to kill was

directed toward a specific victim. Here, the evidence shows that defendant

possessed the requisite intent to kill, so the prosecutor was not required to

show that defendant’s intent to kill was directed at the police officers in order

to support his convictions of assault with intent to commit murder with respect

to them.
10

This conclusion is consistent with People v Lawton, 196 Mich App 341;

492 NW2d 810 (1992). In that case, defendant Marcus Lawton was

convicted of three counts of assault with intent to commit murder with respect

to Truman May, Irene May, and LaTasha May. He argued that the evidence

was insufficient to convict him of the counts pertaining to Irene and LaTasha

because he did not intend to kill either victim. While outside Truman’s home,

Lawton fired shots at Truman, who was inside the home. Neither Truman nor

Irene was struck, but LaTasha was hit by two bullets that penetrated the

walls of the home while she was hiding with Irene in a bedroom closet. This

Court upheld Lawton’s convictions involving all three victims, notwithstanding

that Lawton may have intended to kill only Truman. Significantly for

purposes of the instant appeal, this Court upheld Lawton’s conviction

involving Irene although Irene was not an intended victim and did not suffer

injury during the shooting. Similarly, in the instant case, the evidence was

sufficient to support defendant’s convictions of the two counts of assault with

intent to commit murder involving the police officers despite that they were

not intended victims and were not injured.

Holmes, No. 276591, 2008 WL 5056691, at *3 (citations omitted).

The Michigan Court of Appeals determined that, based on the evidence presented

a rational trier of fact could have found that Holmes committed the acts for which he was

convicted. His argument hinges on what he describes as the doctrine of transferred intent.

Because Holmes reads that doctrine as requiring that an unintended victim suffer actual

injury, he argues that, because the two officers suffered no injury, there was insufficient

evidence to support his assault conviction. As held by the Michigan Court of Appeals,

however, there is no requirement that the prosecutor establish that the intent to kill was

directed at a specific person. Here, the facts reveal that Holmes called to the victim who

was standing next to two police officers and then shot in the direction of all three. Against

that backdrop, Holmes is not entitled to habeas relief on this claim.

2. Firearm Convictions

Second, Holmes also claims that insufficient evidence was produced to establish his

guilt for felon-in-possession of a firearm and possession of a firearm in the commission of
11

a felony. Specifically, he claims that the state failed to prove he was in possession of a

firearm.

The Michigan Court of Appeals rejected Petitioner's insufficiency claim relating to

his firearm convictions and stated:

Defendant next argues that the evidence was insufficient to support

his convictions of felony-firearm with respect to the .44-caliber revolver

recovered in his home and the semiautomatic handgun recovered from the

trunk of his car. He contends that no evidence showed that he possessed

these weapons during the assaults with intent to commit murder or the

interference with a police investigation and that the Legislature did not intend

felon-in possession to serve as the basis for a felony-firearm conviction.

Whether a felon-in-possession conviction may serve as the predicate felony

for a felony-firearm conviction is a question of law that this Court reviews de

novo.

Defendant correctly argues that no evidence showed that he

possessed the .44-caliber revolver or the semi-automatic handgun during the

assaults with intent to commit murder or the interference with a police

investigation. He was properly convicted of felony-firearm with respect to

these weapons, however, because his felon-in-possession convictions

regarding these firearms properly served as the bases for his felony-firearm

convictions regarding the same weapons.

Defendant argues that People v. Smith, 478 Mich. 292; 733 NW2d 351

(2007), rejected the reasoning of People v. Calloway, 469 Mich. 448; 671

NW2d 733 (2003), and People v Dillard, 246 Mich.App 163; 631 NW2d 755

(2001), which held that the language of the felony-firearm statute, MCL

750.227b, permits convictions of both felony-firearm and felon-in-possession

because the felony-firearm statute does not exempt felon-in-possession as

a predicate offense. Thus, defendant argues, those decisions are no longer

binding. In Smith, supra at 316, however, our Supreme Court acknowledged

that, for purposes of the multiple punishment strand of double jeopardy,

“courts first look to determine whether the Legislature expressed a clear

intention that multiple punishments be imposed.” The Court held that if the

Legislature clearly intended to impose multiple punishments, imposition of

such punishments does not violate the constitution regardless of whether the

offenses share the same elements. Only where the Legislature’s intention

is not clearly expressed is it necessary to apply the Blockburger “same

elements” test to determine whether multiple punishments are permissible.

Thus, as determined in Calloway, supra at 451-452, and Dillard, supra at

166-168, because the plain language of the felony-firearm statute does not
12

exempt felon-in-possession as a predicate felony, the Legislature has clearly

conveyed its intent that felon-in-possession may serve as a predicate felony

for a felony-firearm offense. Accordingly, it is unnecessary to apply the

“same elements” test. Therefore, although our Supreme Court in Smith

adopted the Blockburger “same elements” test, this holding does not

undermine the soundness of Calloway and Dillard to the extent that those

decisions focused on the plain text of the felony-firearm statute.

Defendant further argues that the rationale of Calloway and Dillard

should not persuade this Court because neither case addressed the intent

of the Legislature that enacted the felony firearm statute in 1976 and

because the felon-in-possession statute was not enacted until 1992, making

it impossible to have been included in the list of exceptions contained in the

felony firearm statute. As recognized in Dillard, supra at 168, quoting Walen

v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993), “‘the

Legislature is presumed to be aware of, and thus to have considered the

effect on, all existing statutes when enacting new laws.’” Therefore, “had the

Legislature wished to exclude the felon in possession charge as a basis for

liability under the felony-firearm statute, the Legislature would have amended

the felony-firearm statute to explicitly exclude the possibility of a conviction

under the felony-firearm statute that was premised on MCL 750.224f.” The

Legislature failed to do so. Accordingly, defendant’s argument lacks merit.

Holmes, No. 276591, 2008 WL 5056691, at *4-5 (citations omitted).

Holmes was identified as the assailant in this case, and the gun used to assault the

victim and the police officers was found in his home as well as another weapon being found

in the vehicle in which he was seen within minutes of the assault. Under those

circumstances, the Court concludes that there was sufficient evidence presented to convict

him of the firearm convictions. The Court therefore concludes that the Michigan Court of

Appeals’s decision is neither contrary to nor an unreasonable application of the Supreme

Court precedent established in Jackson v. Virginia. Accordingly, Holmes is not entitled to

federal-habeas relief based on these claims.

To the extent Holmes claims that his convictions for both possession of a firearm in
13

the commission of a felony and felon-in-possession of a firearm are precluded under the

Double Jeopardy Clause, his claim is without merit.

The Double Jeopardy Clause of the Fifth Amendment provides that no person shall

“be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const.

Amend. V. It applies to the States via the Fourteenth Amendment. See Benton v.

Maryland, 395 U.S. 784, 794 (1969). This Clause affords defendants protection against

three basic harms: second prosecution for the same offense after acquittal, second

prosecution for the same offense after conviction, and multiple punishments for the same

offense. Brown v. Ohio, 432 U.S. 161, 165 (1977) (citing North Carolina v. Pearce, 395

U.S. 711, 717 (1969) (footnotes omitted)). “Because the substantive power to prescribe

crimes and determine punishments is vested with the legislature [], the question under the

Double Jeopardy Clause whether punishments are ‘multiple’ is essentially one of legislative

intent, [].” Ohio v. Johnson, 467 U.S. 493, 499 (1984) (citations omitted). “Where, [], a

legislature specifically authorizes cumulative punishment under two statutes, regardless

of whether those two statutes proscribe the ‘same’ conduct [], a court’s task of statutory

construction is at an end and the prosecutor may seek and the trial court or jury may

impose cumulative punishment under such statutes in a single trial.” Missouri v. Hunter,

459 U.S. 359, 368-69 (1983). In determining whether the Michigan legislature intended to

authorize cumulative punishments in the circumstances presented here, the Court “must

accept the state court’s interpretation of the legislative intent for the imposition of multiple

punishments.” Brimmage v. Sumner, 793 F.2d 1014, 1015 (9th Cir. 1986) (citing Missouri,

459 U.S. at 368); see also White v. Howes, 586 F.3d 1025 (2009) (holding that cumulative

punishments for Michigan convictions for felon in possession of a firearm and possession
14

of firearm during the commission of a felony did not violate double jeopardy). 

The Court finds that the Michigan Court of Appeals correctly analyzed this issue and

therefore concludes that Holmes is not entitled to habeas relief to the extent he claims his

firearm convictions violate the Double Jeopardy Clause.

C. Certificate of Appealability

The Court will also decline to issue a certificate of appealability (COA) to Holmes.

A court may issue a COA “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal district court

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

petitioner demonstrates that reasonable jurists would find the district court’s assessment

of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473,

484-85 (2000). “A petitioner satisfies this standard by demonstrating that . . . jurists 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 district

court may not conduct a full merits review, but must limit its examination to a threshold

inquiry into the underlying merit of the petitioner’s claims. Id. at 336-37. When a federal

district court denies a habeas claim on procedural grounds without addressing the merits,

a COA should issue if it is shown 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. See

Slack, 529 U.S. at 484-85.

The Court concludes that jurists of reason would not find its assessment of the

substantive rulings debatable or wrong. The Court thus declines to issue Petitioner Holmes
15

a COA. Nor should he be granted leave to proceed on appeal in forma pauperis, as any

appeal would be frivolous. See Fed.R.App.P. 24(a).

V. CONCLUSION

For the reasons stated above, this Court concludes that Petitioner Holmes is not

entitled to federal habeas relief on the claims presented in his petition.

Accordingly, IT IS ORDERED that the “Petition for Writ of Habeas Corpus” is

DENIED WITH PREJUDICE. (Dkt. # 1.)

IT IS FURTHER ORDERED that the Court declines to issue a certificate of

appealability and leave to proceed on appeal in forma pauperis.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: April 27, 2010

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

on April 27, 2010, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager