Civil No. 01-CV-74802-DT
September 30, 2002
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Melvin Duane Redwine, ("Petitioner"), presently confined at the St. Louis Correctional Facility in St. Louis, Michigan, seeks the issuance of a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In his pro se Application, Petitioner challenges his conviction on carjacking, M.C.L.A. 750.529a; M.S.A. 28.797(a), and being a third felony habitual offender, M.C.L.A. 769.11; M.S.A. 28.1083. For the reasons stated below, Petitioner's Application for Writ of Habeas Corpus is DENIED.
I. BACKGROUNDPetitioner was convicted of carjacking following a jury trial in the Detroit Recorder's Court. Petitioner was thereafter sentenced to fifteen to thirty years in prison on the carjacking offense. This sentence was vacated and he was sentenced to fifteen to thirty years in prison as a third felony habitual offender. This Court recites verbatim the relevant facts regarding Petitioner's conviction from the Michigan Court of Appeals' opinion affirming his conviction, which are presumed correct on habeas review. See Monroe v. Smith, 197 F. Supp.2d 753, 758 (E.D. Mich. 2001); aff'd 41 Fed. Appx. 730 (6th Cir. 2002):
"In the present case, the complainant testified that defendant forcefully grabbed the keys from her hands and threw a cup of coffee on her when she tried to resist him. Defendant then drove off in her car. Approximately six hours later, defendant was found riding in the complainant's car. At the time of his arrest, defendant was wearing clothing that, for the most part, matched the description given by the complainant to the police. Defendant also matched the general physical description given by the complainant. At a photographic line-up the next day, the complainant identified defendant." People v. Redwine, 193444, * 3 (Mich.Ct.App. March 20, 1998).
Petitioner's conviction was affirmed on direct appeal. Id., lv. den. 459 Mich. 934; 615 N.W.2d 737 (1998). Petitioner's post-conviction motion for relief from judgment was denied by the state trial court. People v. Redwine, 95-002862 (Wayne County Circuit Court, Criminal Division, June 15, 1998). The Michigan appellate courts denied Petitioner leave to appeal from the denial of his post-conviction motion. People v. Redwine, 220107 (Mich.Ct.App. June 11, 2000); lv. den. 463 Mich. 948; 620 N.W.2d 856 (2000). Additional facts will be discussed when addressing Petitioner's claims. Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
In 1996, the Michigan Legislature abolished the Detroit Recorder's Court and merged its functions with the Wayne County Circuit Court. See Anthony v. Michigan, 35 F. Supp.2d 989, 996-997 (E.D. Mich. 1999).
I. Whether Petitioner is being illegally detained, and whether the state judicial decisions applied in his case plainly contravened clearly established federal law, as determined by the United States Supreme Court precedent, and whether the State prejudicially violated Petitioner's United States Constitutional Right to Due Process of Law?
II. Whether Petitioner's procedural due process rights under the United States and Michigan Constitutions were violated where the state grossly neglected to formally arraign Petitioner on the information for the third offense habitual offender charge?
III. Whether the Michigan Court of Appeals and the trial court erred in requiring Petitioner to show cause and prejudice where the issue presented was a jurisdictional defect?
IV. Whether Petitioner's constitutional right of due process of law was violated due to the court's imposition of an excessive and disproportionate sentence?
V. Whether Petitioner's constitutional right of due process of law was violated due to the prosecutor's failure to provide sufficient evidence on each and every element of the offense charged to prove Petitioner's guilt beyond a reasonable doubt?
VI. Whether Petitioner's constitutional right of due process of law was violated due to the improper arguments made by the prosecuting attorney to the jury designed to induce sympathy for the victim rather than the evidence submitted at trial?
II. STANDARD OF REVIEW
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d); Harpster v. State of Ohio, 128 F.3d 322, 326 (6th Cir. 1997).
A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. An "unreasonable application" occurs when the state court identifies the correct legal principle from a Supreme Court's decision but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412-413 (2000). A federal habeas court may not find a state adjudication to be "unreasonable" "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411.
A. Claim #1. The claim that Petitioner was denied due process when he was never formally arraigned on the information in the Detroit Recorder's Court.
In his first claim, Petitioner claims that the Detroit Recorder's Court's failure to formally arraign him on the information which charged him with carjacking following his bindover to that court violated his due process rights and deprived the trial court of jurisdiction to hear his case.
The Michigan Court of Appeals rejected Petitioner's claim on his direct appeal. Although acknowledging that Petitioner was never formally arraigned on the information in the Recorder's Court, as required by M.C.R. 6.113(A), the Michigan Court of Appeals concluded that Petitioner had failed to demonstrate any actual prejudice from the Recorder's Court's failure to do so. In so ruling, the Michigan Court of Appeals noted that Petitioner had been arraigned on the warrant on February 19, 1995 and counsel had been appointed to represent him. At a pre-trial evidentiary hearing conducted on July 28, 1995, Petitioner was informed that he was being tried for carjacking and the complainant testified as to the substance of the charge against Petitioner. After the motion was denied, defense counsel requested a jury trial, which was in effect the entry of a not guilty plea. Because Petitioner was informed of the nature and the substance of the charges against him four months before trial, the Michigan Court of Appeals determined that Petitioner was not prejudiced by the lack of a formal arraignment. People v. Redwine, Slip. Op. at * 1-2.
Petitioner is not entitled to relief on his claim that the lack of a formal arraignment deprived the trial court of jurisdiction to hear his case. The Court first notes that Petitioner never objected to the lack of a formal arraignment at the trial court level. The failure to object to the lack of a formal arraignment constitutes a waiver to any objection to the trial court having jurisdiction to try his case. See Garland v. Washington, 232 U.S. 642, 646-647 (1914) (holding that when a criminal defendant proceeds as if he had been arraigned and fails to object until after conviction, he has waived the objection). In any event, the failure to arraign a defendant in open court does not deprive a court of jurisdiction to try the defendant. See Merritt v. Hunter, 170 F.2d 739, 741 (10th Cir. 1948).
In addition, Petitioner is unable to establish that the failure to formally arraign him on the arraignment violated his due process right to a fair trial. A state criminal defendant has a due process right to be informed of the nature of the accusations against him or her. Lucas v. O'Dea, 179 F.3d 412, 417 (6th Cir. 1999). However, the failure to arraign a defendant in open court after an information is filed against him or her is not a deprivation of due process absent a showing of any resulting prejudice. See Tapia v. Tansy, 926 F.2d 1554, 1558 (10th Cir. 1991). Formal arraignment is not constitutionally required if it is shown that the defendant knew what he or she was being accused of and is able to defend himself or herself adequately. Dell v. State of La., 468 F.2d 324, 325 (5th Cir. 1972). An accused's constitutional right to notice of the criminal charge or charges brought against him or her can be satisfied by other means, such as a bill of particulars, a preliminary examination, and criminal pre-trial discovery. Dowell v. C.M. Lensing, 805 F. Supp. 1335, 1343 (M.D. La. 1992).
In the present case, an evidentiary hearing was conducted on Petitioner's motion to suppress the photographic line-up. At the beginning of the hearing, the court clerk briefly indicated that Petitioner was being charged with carjacking. The complainant in this matter, Eunice Williams, testified that she was a victim of a carjacking on February 16, 1995. Ms. Williams testified that she had come out of a Mobil Gas Station on the corner of Livernois and Davison in the City of Detroit, when a person, whom she identified as Petitioner, approached her and demanded her keys, before grabbing them from her. Williams stated that Petitioner then jumped into the car and attempted to drive off. When Williams attempted to stop him, Petitioner threw a cup of hot coffee into her face. Petitioner then drove off with the car. Williams further testified that she gave the police a description of the perpetrator and later identified Petitioner at a photographic line-up conducted at Detroit Police Headquarters. (Evidentiary Hearing and Jury Trial-Volume I Transcript, pp. 5-16).
In the present case, the complainant testified about the facts and circumstances surrounding the offense at this pre-trial evidentiary hearing, which was held four months prior to Petitioner's trial. Petitioner does not allege, much less show, that his defense at trial was prejudiced by the failure to formally arraign him on the information. In this case, Petitioner was informed of the nature and cause of the charge against him at the evidentiary hearing so that he could adequately prepare a defense in compliance with due process. Thus, the state court's denial of Petitioner's claim is not contrary to, nor an unreasonable application of, clearly established federal law. See Morgan v. Robinson, 156 F. Supp.2d 1133, 1145 (C.D. Cal. 2001) (rejecting similar claim where habeas petitioner was informed of the nature of the charges against him when the victim testified at a preliminary examination).
B. Claim #2. The inadequate habitual offender notice claim.
In his second claim, Petitioner alleges that he did not receive timely notice from the prosecution of their intent to enhance his sentence as a third felony habitual offender, as required by Michigan law.
Petitioner's claim that he received inadequate notice of the habitual offender charge under Michigan law does not state a claim that is cognizable in federal habeas review. Tolbert v. LeCureaux, 811 F. Supp. 1237, 1240-1241 (E.D. Mich. 1993). Due process does not require advance notice that a trial on a substantive criminal charge will be followed by an habitual offender charge. Due process only requires that a defendant be given a reasonable notice and opportunity to be heard relative to the habitual offender charge. Oyler v. Boles, 368 U.S. 448, 452 (1962).
In the present case, Petitioner did not dispute, either at his sentencing, or more importantly, in his habeas petition, that he had prior convictions that would make him eligible to be sentenced as an habitual offender, nor did he object or seek a continuance based on the absence of advance notice of the sentence enhancement. Therefore, Petitioner cannot complain that he was denied due process. Oyler, 368 U.S. at 453-454; Washington v. Cowan, 25 Fed. Appx. 425, 426 (7th Cir. 2001). Petitioner's second claim does not entitle him to habeas relief.
C. Claim #3. The Michigan courts' alleged error in requiring Petitioner to show cause and prejudice to obtain post-conviction relief.
Because Petitioner's claim does not entitle him to habeas relief, it is unnecessary to address Respondent's argument that part of this claim may be procedurally defaulted.
In his third claim, Petitioner contends that the Michigan courts improperly required him to show cause and prejudice, as required by M.C.R. 6.508(D)(3), in order to obtain post-conviction relief. Petitioner claims that because he was alleging a jurisdictional defect in his post-conviction motion, he was not required to establish cause and prejudice in order to obtain post-conviction relief.
A federal habeas corpus petition cannot be used to mount a challenge to a state's scheme of post-conviction relief. Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001). The reason for this is that the states have no constitutional obligation to provide post-conviction remedies. Id. (citing to Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)). Any error by the Michigan courts in the application of Michigan's post-conviction statute is an error of state law that would not be cognizable in federal habeas review. See Simpson v. Jones, 238 F.3d 399, 406-407 (6th Cir. 2000) (holding that any error by the Michigan courts in determining that procedurally defaulted constitutional claims did not come within the exception under the state rule for claims involving jurisdictional defects was an error of state law not cognizable on habeas review). Petitioner is therefore not entitled to habeas relief on his third claim.
D. Claim #4. The disproportionate sentencing claim.
Petitioner next contends that the trial court's sentence of fifteen to thirty years was disproportionate to the crime and to the offender.
Petitioner's sentence of fifteen to thirty years was within the statutory maximum set under Michigan's carjacking statute. A sentence imposed within the statutory limits is not generally subject to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp.2d 788, 797 (E.D. Mich. 1999). A sentence within the statutory maximum set by statute does not normally constitute cruel and unusual punishment. Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000). Generally, federal habeas review of a state court sentence ends once the court makes a determination that the sentence is within the limitation set by statute. Allen v. Stovall, 156 F. Supp.2d 791, 795 (E.D. Mich. 2001). Claims which arise out of a state trial court's sentencing decision are not normally cognizable on federal habeas review, unless the habeas petitioner can show that the sentence imposed exceeded the statutory limits or is wholly unauthorized by law. Lucey v. Lavigne, 185 F. Supp.2d 741, 745 (E.D. Mich. 2001) ( citing to Haynes v. Butler, 825 F.2d 921, 923 (5th Cir. 1987)).
The U.S. Constitution does not require that sentences be proportionate. In Harmelin v. Michigan, 501 U.S. 957, 965 (1991), a plurality of the U.S. Supreme Court concluded that the Eighth Amendment does not contain a requirement of strict proportionality between the crime and sentence. The Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime. Harmelin, 501 U.S. at 1001.
Successful challenges to the proportionality of a particular sentence in non-capital cases are "exceedingly rare". Rummel v. Estelle, 445 U.S. 263, 272 (1980). Federal courts will therefore not engage in a proportionality analysis except where the sentence imposed is death or life imprisonment without parole. See Seeger v. Straub, 29 F. Supp.2d 385, 392 (E.D. Mich. 1998). A claim that a sentence is imposed in violation of Michigan's sentencing law does not state a claim for relief in a habeas proceeding where there is no claim that the sentence violates the cruel and unusual punishment clause of the Eighth Amendment. Hanks v. Jackson, 123 F. Supp.2d 1061, 1075 (E.D. Mich. 2000). Petitioner's claim that his sentence is disproportionate under Michigan law thus would not state a claim upon which habeas relief can be granted. Whitfield v. Martin, 157 F. Supp.2d 758, 761 (E.D. Mich. 2001)
Morever, Petitioner has failed to demonstrate that the sentence imposed in this case was disproportionate or unduly severe. Petitioner acknowledges that he had two prior convictions for assault with intent to rob while armed. Petitioner also had two other felony convictions for embezzlement and possession of cocaine and had a misdemeanor conviction for domestic violence. Petitioner, in fact, was charged as being a third felony habitual offender. The facts of this case involved Petitioner forcibly taking a car from a woman. During the robbery, Petitioner threw a cup of hot coffee into the woman's face. In light of Petitioner's prior criminal record, which included assaultive offenses, and the nature of the carjacking offense, this Court concludes that Petitioner's sentence of fifteen to thirty years was not unconstitutional. See People v. Terry, 224 Mich. App. 447, 456; 569 N.W.2d 641 (1997) (sentence of 20 to 30 years' imprisonment imposed for carjacking and habitual offender charges was proportionate and did not constitute cruel and unusual punishment).
E. Claim #5. The sufficiency of evidence claim.
Petitioner next alleges that the evidence was insufficient to convict him of carjacking.
A habeas court reviews claims that the evidence at trial was insufficient for a conviction by asking 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. Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir. 2000) (citing to Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Because a claim of insufficiency of the evidence presents a mixed question of law and fact, this Court must determine whether the state court's application of the Jackson standard was reasonable. Matthews v. Abramajtys, 92 F. Supp.2d 615, 632 (E.D. Mich. 2000).
The elements of carjacking are: (1) the defendant took a motor vehicle from another person; (2) the defendant did so in the presence of that person, a passenger, or any other person in lawful possession of the motor vehicle; and (3) the defendant did so either by force or violence, by threat of force or violence, or by putting the other person in fear. People v. Davenport, 230 Mich. App. 577, 579; 583 N.W.2d 919 (1998).
In the present case, the victim testified that Petitioner forcefully grabbed her car keys from her hands and threw a hot cup of coffee at her when she attempted to prevent him from taking her car. Petitioner then drove off with her car. When the evidence is viewed in a light most favorable to the prosecution, the elements of carjacking were clearly established beyond a reasonable doubt.
Petitioner, however, contends that the evidence in this case was insufficient to convict him, because the victim's testimony was inconsistent and uncorroborated by other evidence. Petitioner's argument that the evidence was insufficient because the victim's testimony was inconsistent and her testimony was unsubstantiated by other evidence does not entitle him to habeas relief. Attacks on witness credibility are simply challenges to the quality of the prosecution's evidence, and not to the sufficiency of the evidence. Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002) (intenal citation omitted). An assessment of the credibility of witnesses is therefore generally beyond the scope of federal habeas review of sufficiency of evidence claims. Gall v. Parker, 231 F.3d 265, 286 (6th Cir. 2000). The mere existence of sufficient evidence to convict therefore defeats a petitioner's claim. Id. In addition, the fact that the victim was the only witness to testify against Petitioner regarding the incident which lead to his conviction does not render the evidence insufficient to convict. The testimony of a single, uncorroborated prosecuting witness or other eyewitness is generally sufficient to support a conviction, so long as the prosecution presents evidence which establishes the elements of the offense beyond a reasonable doubt. Brown v. Davis, 752 F.2d 1142, 1144-1145 (6th Cir. 1985) (intenal citations omitted); Davis v. Grayson, 2002 WL 1310603, * 5 (E.D. Mich. May 23, 2002). A victim's testimony is, by itself, normally sufficient to sustain a criminal conviction. See Loeblein v. Dormire, 229 F.3d 724, 726-727 (8th Cir. 2000).
Petitioner also contends that the verdict went against the great weight of the evidence. A federal habeas court has no power to grant habeas relief on the ground that a state conviction is against the great weight of the evidence. Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985); Dell v. Straub, 194 F. Supp.2d 629, 648 (E.D. Mich. 2002). A claim that a verdict went against the great weight of the evidence is not of constitutional dimension, for habeas corpus purposes, unless the record is so devoid of evidentiary support that a due process issue is raised. Griggs v. State of Kansas, 814 F. Supp. 60, 62 (D. Kan. 1993). The test for habeas relief is not whether the verdict was against the great weight of the evidence, but whether there was any evidence to support it. Dell, 194 F. Supp.2d at 648; United States ex. rel. Victor v. Yeager, 330 F. Supp. 802, 806 (D.N.J. 1971). As long as there is sufficient evidence to convict petitioner of this crime, the fact that the verdict may have gone against the great weight of the evidence would not entitle him to habeas relief. Dell v. Straub, 194 F. Supp.2d at 648. In the present case, there was sufficient evidence to convict Petitioner of the offense of carjacking. Petitioner is therefore not entitled to habeas relief on his fifth claim.
F. Claim #6. The prosecutorial misconduct claim.
In his final claim, Petitioner alleges that he was deprived of due process because the prosecutor attempted to elicit sympathy for the victim in her closing remarks to the jury.
The prosecutor's closing argument consisted of twenty one pages. (Transcript, Volumes II and III Sentencing, pp. 274-281, 296-308). During her rebuttal, the prosecutor made the following remarks, which Petitioner claims were done to invoke sympathy for the victim:
MS. WOLFE [the prosecutor]: "Mr. Scharg [the defense attorney] told you that this is a case about Detroit's finest and a case about Detroit's worst. You've heard the expression Detroit's finest and Detroit's worst. Ladies and Gentlemen, maybe that's true, maybe that's true. Maybe Detroit's finest is people like Eunice Williams who live in the city, committed to the city, work for the —
MR. SCHARG: Judge, that's improper argument. You know this case involves both Eunice Williams and my client.
MS. WOLFE: And I'll get there.
MR. SCHARG: And this goes for sympathy, this argument, and its totally improper.
THE COURT: I'm overruling the objection. Continue.
MS. WOLFE: Thank you. Testified that all she did on February the 16th to bring herself to this courtroom and into your lives was put some gas in her car at lunchtime, put some gas in her car at lunchtime in broad daylight in a public gas station. I'm not asking you to rely on sympathy. I'm asking you to look at really truly Detroit's finest. Eunice Williams testified credibly. She wasn't impeached. She had no motive. She doesn't have a reason to get anybody. Nobody here, nobody here has a reason to go after Melvin Redwine except the fact that he's guilty. ( Id. at pp. 304-305).
The trial court later instructed the jury that sympathy or prejudice should not influence their decision. ( Id. at p. 308). The trial court also instructed the jury that the lawyers' statements and comments were not evidence. ( Id. at pp. 310-311).
The Michigan Court of Appeals rejected this claim, finding that the prosecutor was not attempting to elicit sympathy in her closing remarks, but was instead simply arguing that the facts and evidence demonstrated that the victim was credible. People v. Redwine, Slip. Op. at * 3.
When a petitioner seeking habeas relief makes a claim of prosecutorial misconduct, the reviewing court must consider that the touchstone of due process is the fairness of the trial, not the culpability of the prosecutor. On habeas review, a court's role is to determine whether the conduct was so egregious as to render the entire trial fundamentally unfair. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355-1356 (6th Cir. 1993). Because this case is a habeas case and is not a direct appeal, the inquiry into this issue is less stringent. Spalla v. Foltz, 615 F. Supp. 224, 227 (E.D. Mich. 1985). When analyzing a claim of prosecutorial misconduct, a court must initially decide whether the challenged statements were improper. Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000). If the conduct is improper, the district court must then examine whether the statements or remarks are so flagrant as to constitute a denial of due process and warrant granting a writ. Id. In evaluating prosecutorial misconduct in a habeas case, consideration should be given to the degree to which the challenged remarks had a tendency to mislead the jury and to prejudice the accused, whether they were isolated or extensive, whether they were deliberately or accidentally placed before the jury, and, except in the sentencing phase of a capital murder case, the strength of the competent proof against the accused. Serra, 4 F.3d at 1355-1356.
In the present case, the prosecutor's closing argument took up twenty one pages of transcripts. In complaining of prosecutorial misconduct, petitioner points to only two pages of an argument that took up twenty one pages. These brief comments by the prosecutor would not entitle him to relief. See Rodriguez v. Peters, 63 F.3d 546, 565 (7th Cir. 1995) (victim impact comments comprising one of thirty five pages of a closing argument did not render trial unfair). In the present case, even assuming that the statements by the prosecutor invoking sympathy for the victim were improper, they do not meet the stringent standard necessary for reversal of a conviction on habeas. The remarks were relatively isolated, were not extensive, and were only a small part of a closing argument that focused heavily on summarizing the evidence presented at trial. Byrd v. Collins, 209 F.3d 486, 532 (6th Cir. 2000). When combined with the instruction from the trial judge that the closing arguments were not evidence, the prosecutor's isolated comments did not render the entire trial fundamentally unfair. Id. at 533. Finally, petitioner's claim would also be defeated by the fact that the trial court instructed the jury that they were not to let sympathy or prejudice influence their decision. Millender v. Adams, 187 F. Supp.2d 852, 876 (E.D. Mich. 2002); See also Welch v. Burke, 49 F. Supp.2d 992, 1006 (E.D. Mich. 1999). Petitioner is not entitled to habeas relief on his final claim.
The Court will deny the Petition for Writ of Habeas Corpus. The Court will also deny a Certificate of Appealability to Petitioner. In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253 (c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-484 (2000). When a district court rejects a habeas petitioner's constitutional claims on the merits, the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims to be debatable or wrong. Id. at 484. A district court has the power to deny a certificate of appealability sua sponte. Grayson v. Grayson, 185 F. Supp.2d 747, 753 (E.D. Mich. 2002).
For the reasons stated in this opinion, the Court will deny Petitioner a Certificate of Appealability because he has failed to make a substantial showing of the denial of a federal constitutional right. Jurists of reason would not find this Court's resolution of Petitioner's claims to be debatable or that they should receive encouragement to proceed further. Myers v. Straub, 159 F. Supp.2d 621, 629 (E.D. Mich. 2001). The Court will also deny Petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Grayson, 185 F. Supp.2d at 753.
Based upon the foregoing, IT IS ORDERED that the Petition for a Writ of Habeas Corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED That a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to appeal in forma pauperis.