Opinion
Civil No. 01-CV-74686-DT
November 25, 2002
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Robert Mark Mitchell, ("petitioner"), presently confined at the Macomb Correctional Facility in New Haven, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction and sentence on one count of possession of between fifty and two hundred and twenty four grams of cocaine, M.C.L.A. 333.7403(2)(a)(iii); M.S.A. 14.15 (7403)(2)(a)(iii); one count of felony firearm, M.C.L.A. 750.227b; M.S.A. 28.424(2); and one count of carrying a concealed weapon in a motor vehicle, M.C.L.A. 750.227; M.S.A. 28.424. For the reasons stated below, the application for writ of habeas corpus is DENIED.
I. BACKGROUND
The 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):
Defendant was arrested on outstanding traffic and drug-related arrest warrants after police received tips concerning defendant's whereabouts from a confidential informant. An inventory search of the car that defendant was driving revealed $2,000 in cash hidden under the driver's side floorboard carpeting, and a loaded 9 mm handgun hidden under the passenger's side floorboard carpeting. A pager was found on defendant's person. Based upon the evidence found during the arrest, prior police surveillance of defendant, and information from the informant that defendant was distributing cocaine from an apartment located at 2108 Whittington in the City of Saginaw, police obtained and executed a search warrant at the apartment in question. Prior to the search, defendant told police that any drugs found in the apartment belonged to him.
The apartment belonged to Cora Welch, who lived there with her two children. Welch testified that she had asked defendant to look after her apartment while she was unexpectedly hospitalized. Welch sent her two children to stay with her mother during the hospitalization. Welch and the children had recently returned home when police executed the search warrant at the apartment. At the time of the search, Welch was visiting neighbors, and the two children were in one of the three upstairs bedrooms.
During the search of the spare bedroom, police discovered an ice chest which contained a glass test tube with cocaine residue on it, various sizes of sandwich baggies, razor blades, and a black plastic bag containing a 9 mm handgun with a laser sighting device. On the top of the closet shelf, police found .2 grams of loose cocaine powder, a box of plastic baggies, and a triple beam scale with cocaine residue on it. Additionally, a clear plastic baggie with cocaine residue was found inside a shoe box sitting on the bed. In the children's bedroom, police found a brown paper bag inside a racing car toy box in the closet. Inside the paper bag were three plastic baggies, containing 52.23, 6.7, and 7.7 grams of cocaine, respectively.
Two of defendant's fingerprints were identified on the plastic bag which contained the 9 mm handgun, although there were also fingerprints on the bag which were not defendant's. Defendant's thumbprint was identified on one of the three plastic baggies of cocaine found in the paper bag inside the toy box in the children's bedroom closet.
People v. Mitchell, 157498, * 1-2 (Mich.Ct.App. August 1, 1995).
Petitioner's conviction was affirmed on direct appeal. Id., Iv. den. 456 Mich. 935; 575 N.W.2d 552 (1998). Justice Kelly would have granted review. Id.
Petitioner thereafter filed a post-conviction motion for relief from judgment, pursuant to M.C.R. 6.500, et. seq., which the trial court denied. People v. Mitchell, 91-005443-FH (Saginaw County Circuit Court, August 24, 1999). The Michigan appellate courts denied leave to appeal on the ground that petitioner had failed to establish that he was entitled to relief pursuant to M.C.R. 6.508(D). People v. Mitchell, 228848 (Mich.Ct.App. March 29, 2001); reh. den. 228848 (Mich.Ct.App. April 26, 2001); Iv. den. ___ Mich. ___ 636 N.W.2d 528 (2001). 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:
I. Appellant was denied his Sixth and Fourteenth Amendment rights to receive a fair trial where his trial counsel was ineffective on several grounds requiring reversal where prejudice is shown, and creating a breakdown in the adversary process.
II. Appellant was deprived of his Sixth and Fourteenth Amendment rights to effective assistance of appellate counsel, where counsel failed to present the within claims on direct review resulting in an appeal of right which was constitutionally infirm.
III. Appellant is entitled to reversal of his tainted conviction where the affiant who drafted the warrant for 1208 Whittington, falsified the statements within the four corners of the affidavit, creating a fraud upon the courts in violation of appellant's Fourth Amendment right under State and Federal constitutions. U.S. Const. Am. IV; Const. 1963, Art. I, §§ 11, 17.
IV. Appellant's Fourth Amendment rights were violated when the search warrant was executed in violation of the knock and announce statute, and the evidence seized was the unconstitutional fruits of the poisonous tree, U.S. Const. Am. IV; Const. 1963, Art. 1, § 11.
V. Appellant is entitled to be resentenced where the trial court failed to recognize that it had the authority to depart below the statutory minimum of ten years for substantial and compelling reasons, and for the strong mitigating circumstance where the jury exonerated him on the delivery charge.
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.
III. DISCUSSION
A. Claims #1 and #2. The ineffective assistance of counsel claims.
The Court will consolidate petitioner's first two claims for judicial economy. In his first claim, petitioner alleges that he was deprived of the effective assistance of trial counsel. In his second claim, petitioner alleges that he was deprived of the effective assistance of appellate counsel.1. Standard of Review
To show that he or she was denied the effective assistance of counsel under federal constitutional standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that, considering all of the circumstances, counsel's performance was so deficient that the attorney was not functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, the defendant must overcome a strong presumption that counsel's behavior lies within the wide range of reasonable professional assistance. Id. Second, the defendant must show that such performance prejudiced his defense. Id. To demonstrate prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The Strickland standard also applies to claims of ineffective assistance of appellate counsel. Bowen v. Foltz, 763 F.2d 191, 195 (6th Cir. 1985).
2. The ineffective assistance of trial counsel claims.
Petitioner's primary complaint against his trial counsel is that he failed to file a motion to suppress the evidence seized from the apartment on the grounds that police violated Michigan's "knock and announce" statute.
The restriction on federal habeas review of a Fourth Amendment claim ( See Claims III and IV, infra) does not extend to a habeas petitioner's Sixth Amendment claim of ineffective assistance of counsel involving counsel's failure to file a motion to suppress evidence obtained in violation of the Fourth Amendment. Kimmelman v. Morrison, 477 U.S. 365, 382-383 (1986). However, to prove that counsel's failure to litigate a Fourth Amendment claim competently is the principal claim of ineffectiveness, a 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. Id. at 375.
Petitioner's ineffective assistance of trial counsel claim was addressed by the trial court in its opinion denying petitioner's motion for post-conviction relief, when it addressed the substantive merits of petitioner's Fourth Amendment claim. Although the trial court found that the testimony from trial tended to support the conclusion that the police violated Michigan's "knock and announce" statute when they executed the search warrant, the trial court noted that under Michigan law, petitioner was not entitled to suppression of this evidence, because the evidence would have inevitably been discovered pursuant to the valid search warrant. The trial court further noted that the Michigan Supreme Court had indicated that it failed to discern any intent by the Michigan legislature to have the exclusionary rule apply to "knock and announce" violations. Because there was no error in admitting this evidence, the trial court concluded that neither trial or appellate counsel were ineffective for failing to raise a challenge to the admission of the evidence on the ground that the police violated the "knock and announce" statute. People v. Mitchell, 91-005443-FH, * 2-5 (Saginaw County Circuit Court, August 24, 1999).
The United States Supreme Court has held that the common law knock and announce principle is a part of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927, 930 (1995). The Supreme Court indicated that under certain circumstances, a police officer's unannounced entry into a home or dwelling might be unreasonable under the Fourth Amendment. Id. at 934. The Supreme Court went on to state that not every entry by the police must be preceded by an announcement, noting that "the Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Wilson, 514 U.S. at 934. The Supreme Court further noted that the common law principle of announcement never required announcement by the police in all circumstances. Id. Finally, the Supreme Court left to the lower courts "the task of determining the circumstances under which an unannounced entry" might be reasonable under the Fourth Amendment. Wilson v. Arkansas, 514 U.S. at 936.
In People v. Stevens, 460 Mich. 626, 646-647; 597 N.W.2d 53 (1999), the Michigan Supreme Court held that a police officer's violation of Michigan's knock and announce statute in executing a valid search warrant did not warrant exclusion of the seized drug evidence, given that the evidence would have inevitably been discovered pursuant to a valid search warrant. The Michigan Supreme Court further noted the absence of any legislative intent that the exclusionary rule would apply to a violation of the knock and announce statute. Id.
When the United States Supreme Court issued its opinion in Wilson, it declined to address the issue of whether the "independent source" doctrine or the "inevitable discovery" rule would preclude the exclusion of evidence taken in violation of a knock and announce statute. Wilson v. Arkansas, 514 U.S. at 937, fn. 4 (internal citations omitted). This Court notes that the United States Supreme Court declined to grant certiorari to review the Michigan Supreme Court's decision in Stevens. See Stevens v. Michigan, 528 U.S. 1164 (2000); reh. den. 529 U.S. 1062 (2000). The application of the inevitable discovery rule by the Michigan Supreme Court to preclude the exclusion of evidence that is obtained in violation of the knock and announce statute pursuant to a valid search warrant does not, therefore, appear to be contrary to, or an unreasonable application of, clearly established federal law.
In the present case, the police obtained the evidence from the Whittington address pursuant to a valid search warrant. Therefore, even if the police violated the knock and announce statute, such evidence would have been admissible under the Michigan Supreme Court's holding in Stevens, pursuant to the inevitable discovery rule. Petitioner is therefore unable to establish that his trial counsel was ineffective for failing to file a motion to suppress the evidence based upon a violation of Michigan's knock and announce statute, because he is unable to show that such a motion would have successfully led to the exclusion of this evidence.
Petitioner also claims that his trial counsel was ineffective for failing to investigate and fully develop materially false statements that were used in the affidavit for the search warrant. Although trial counsel filed a motion to suppress the evidence seized from the apartment on the grounds that the affidavit for the search warrant contained false information, see infra, petitioner claims that his trial counsel failed to investigate and demonstrate that other facts within the affidavit were materially false. Petitioner specifically claims that trial counsel failed to investigate and challenge paragraph C from the affidavit, in which the affiant, Sergeant Ernest Bradley, indicated that his confidential informant had advised him that Rodney O'Bryan and Robert Noel had recently gone to the address at 2108 Whittington Street and had been supplied drugs by "Detroit Bob", which the affidavit indicates was petitioner's alias. Petitioner contends that this portion of the affidavit is false, claiming that he never sold drugs to either man. In support of this claim, petitioner has attached affidavits from O'Bryan and Noel, which were signed in 1994, in which both men deny that they ever had contact with petitioner or purchased drugs from petitioner at the Whittington address. Petitioner further claims that he informed both trial and appellate counsel that he never knew O'Bryan and Noel, and therefore could not have supplied them with drugs.
Affidavit for Search warrant, attached to petitioner's reply brief as Exhibit C; See also Petitioner's Brief in Support of the Petition for writ of Habeas Corpus, pp. 26-27.
Affidavits of O'Bryan and Noel attached to Petitioner's reply brief as Exhibits D and E. Petitioner's affidavit is attached as Exhibit F.
In the present case, even if petitioner could establish that the information contained within the search warrant affidavit concerning alleged sales of drugs by petitioner to O'Bryan or Noel was false, probable cause to search the apartment on 2108 Whittington Street would still have existed, even had this misinformation been set aside. Therefore, petitioner was not prejudiced by defense counsel's failure to move to quash the search warrant on the basis of this allegedly false information. See United States v. Jackson, 103 F.3d 561, 574-575 (7th Cir. 1996). In the present case, even if this Court were to exclude the information that O'Bryan and Noel had purchased cocaine from petitioner, along with the information that the state trial court excluded when ruling on petitioner's motion to suppress, i.e. that a surveillance officer observed a black male who matched petitioner's description leaving the premises shortly before petitioner's arrest, there were other facts contained within the affidavit that would support a finding of probable cause to issue the warrant. This claim is therefore without merit.
In his reply brief, petitioner describes what the affidavit for the search warrant would resemble if all of the allegedly false information was removed from it. See Petitioner's Reply Brief, at pp. 19-20. A review of the affidavit without the allegedly false information clearly establishes probable cause to issue a warrant to search the Whittington address.
Petitioner's remaining ineffective assistance of trial counsel claims can be more readily disposed of. Petitioner first alleges that his attorney was ineffective for failing to confront Sergeant Andrews' trial testimony that petitioner told him that the $2,000 found in the car was for drugs. Petitioner admits, however, that his trial counsel presented petitioner's father, Robert Mitchell, Sr., as a defense witness. Petitioner's father testified that he owned a junk car business and that petitioner was working for him at the time of the arrest. Significantly, petitioner's father testified that on September 3, 1991, the day of petitioner's arrest, he had given petitioner $2,000.00 to $2,200.00 to hold onto for an automobile auction that the men were going to the next day, because petitioner's father was going to the race track after work and didn't want to carry that much cash with him. Petitioner also testified at trial that the money found in the car at the time of his arrest had been given to him by his father.
It is within the scope of appropriate trial strategy to present a rebuttal witness rather than to cross-examine a prosecution witness. See Bruns v. Thalacker, 973 F.2d 625, 630 (8th Cir. 1992). Petitioner has failed to show that his trial counsel's decision to call defense witnesses to rebut Sergeant Andrews' testimony, rather than to cross-examine him concerning whether petitioner had told him that the money was for drugs, was legitimate trial strategy.
Petitioner finally claims that his trial counsel was ineffective for failing to bring to the trial court's attention at sentencing that it had the discretion to depart below the mandatory minimum ten year sentence for the possession of between fifty and two hundred and twenty four grams of cocaine conviction. Petitioner was sentenced to thirteen years, six months to twenty years in prison on this conviction.
The minimum sentence was reduced by two months on appeal by the Michigan Court of Appeals pursuant to the "two thirds rule" enunciated in People v. Tanner, 387 Mich. 683, 690; 199 N.W.2d 202 (1972).
This part of petitioner's claim is without merit. Trial counsel indicated at sentencing that although the sentence called for a [mandatory] minimum prison sentence, there was a provision in the statute which allowed for substantial departures. Trial counsel also pointed out several positive factors on petitioner's behalf, including petitioner's educational background and work history. Trial counsel also noted that the jury had found petitioner not guilty of the original charge of possession with intent to deliver cocaine. (Sent. Tr., pp. 45-48). Therefore, trial counsel brought to the trial court's attention that it could depart below the mandatory minimum sentence and also gave the trial court reasons to do so. Petitioner is therefore unable to establish that he was deprived of the effective assistance of trial counsel.
3. The ineffective assistance of appellate counsel claims.
In his second claim, petitioner alleges that he was deprived of the effective assistance of appellate counsel.
The Sixth Amendment guarantees a defendant the right to the effective assistance of counsel on the first appeal by right. Evitts v. Lucey, 469 U.S. 387, 396-397 (1985). However, court appointed counsel does not have a constitutional duty to raise every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983). Thus, an attorney's failure to present a nonmeritorious issue on appeal does not constitute ineffective assistance of counsel. Daniel v. Overton, 845 F. Supp. 1170, 1176 (E.D.Mich. 1994).
Petitioner first claims that his appellate counsel was ineffective for failing to raise the ineffective assistance of trial counsel claims that he raised in his first claim in his appeal of right. Given that this Court has determined that petitioner's ineffective assistance of trial counsel issues are insufficient to warrant habeas relief, it would be impossible for petitioner to establish that appellate counsel's failure to raise the ineffective assistance of trial counsel issues on appeal was prejudicial. See United States ex. rel. Thirston v. Gilmore, 986 F. Supp. 491, 502 (N.D.Ill. 1997). Therefore, this part of petitioner's ineffective assistance of appellate counsel claim is without merit.
Petitioner next claims that appellate counsel was ineffective for failing to raise in his direct appeal the trial court's failure to recognize that it had the discretion to depart below the mandatory minimum ten year prison sentence on his cocaine conviction for substantial and compelling reasons.
A defendant has a constitutional right to the effective assistance of counsel at sentencing. Wilson v. United States, 962 F.2d 996, 997 (11th Cir. 1992). To establish a claim of ineffective assistance of counsel in the sentencing context, a defendant must show that:
1. counsel's representation fell below the objective standard of reasonableness; and;
2. there is a reasonable probability that, but for counsel's unprofessional errors, the result of the sentence would have been different.United States v. Harris, 894 F. Supp. 20, 26 (D.D.C. 1995).
With respect to a defendant's efforts to demonstrate prejudice arising from ineffective assistance of counsel in the context of a noncapital sentencing, a habeas court must determine whether there is a probability that, but for counsel's deficiency, the defendant's sentence would have been "significantly less harsh". United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995).
In the present case, appellate counsel never raised the issue on appeal whether the trial court should have found substantial and compelling reasons to depart below the mandatory minimum ten year sentence. However, appellate counsel did raise a claim that the minimum sentence was disproportionate. The Michigan Court of Appeals rejected this claim, finding that there were good reasons for the trial court to impose a minimum sentence of thirteen years, four months on the cocaine conviction, including the fact that petitioner had five outstanding bench warrants at the time of his arrest on these charges, the fact that petitioner was implicated in another drug case, and the fact that the weapons that petitioner possessed, including a laser-sighted handgun, "reflected a sinister level of criminal sophistication." People v. Mitchell, 157498, * 5.
In light of the fact that the Michigan Court of Appeals found petitioner's minimum sentence of thirteen years, four months to be proportionate under Michigan law, petitioner is unable to establish that there is a reasonable likelihood that the Michigan Court of Appeals would have found that there were substantial and compelling reasons for the trial court to depart below the mandatory minimum ten year sentence in this case. Therefore, petitioner was not prejudiced by appellate counsel's failure to raise this issue on appeal.
4. Conclusion
Petitioner was not denied the effective assistance of trial or appellate counsel.
B. Claims #3 and #4. The Fourth Amendment claims.
In his third habeas claim, petitioner alleges that the affidavit that was prepared to support the search warrant prepared for 2108 Whittington contained false statements, and that any evidence seized pursuant to that warrant should have been suppressed. In his fourth claim, petitioner contends that his Fourth Amendment rights were violated when the search warrant was executed in violation of Michigan's knock and announce statute.
A federal habeas review of a petitioner's arrest or search by state police is barred where the state has provided a full and fair opportunity to litigate an illegal arrest or a search and seizure claim. Stone v. Powell, 428 U.S. 465, 494-495 (1976); Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000). For such an opportunity to have existed, the state must have provided, in the abstract, a mechanism by which the petitioner could raise the claim, and presentation of the claim must not have been frustrated by a failure of that mechanism. Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982). The relevant inquiry is whether a habeas petitioner had an opportunity to litigate his claims, not whether he in fact did so or even whether the Fourth Amendment claim was correctly decided. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996).
In the present case, petitioner filed a motion to suppress the evidence on the basis that the search warrant was defective. The trial court heard arguments on the motion on the day of trial and denied the motion. The Michigan Court of Appeals affirmed the trial court's decision, finding that even without the contested information in the warrant, the police officer's remaining observations as described in the affidavit corroborated the informant's statements and therefore established probable cause for the search. People v. Mitchell, 157498, * 2.
In the present case, petitioner is precluded from raising his Fourth Amendment claim that the search warrant was defective when he raised the factual basis for this claim in the state trial and appellate courts, and the state courts thoroughly analyzed the facts and applied the proper constitutional law in rejecting his claim. Monroe v. Smith, 197 F. Supp.2d at 766. Even if petitioner later decided that he had more evidence to present to challenge the validity of the search warrant, in the affidavits from O'Bryan and Noel, this would not mean that he was not given a full and fair opportunity to litigate his Fourth Amendment claim. See Smith v. Atkins, 565 F. Supp. 721, 728-729 (D.Kan. 1983). Petitioner is therefore not entitled to habeas relief on his third claim.
With respect to petitioner's fourth claim regarding the knock and announce violation, petitioner raised this claim in his post-conviction motion for relief from judgment and the trial court analyzed the merits of petitioner's claim. People v. Mitchell, 91-005443-FH., * 2-5 (Saginaw County Circuit Court, August 24, 1999). Because petitioner was able to raise his knock and announce violation claim in his post-conviction motion, petitioner had a full and fair opportunity to raise this Fourth Amendment claim in the state courts. See Villafuerte v. Stewart, 111 F.3d 616, 627 (9th Cir. 1997). Petitioner is therefore not entitled to habeas relief on his fourth claim.
C. Claim #5. Petitioner's sentencing claim.
In his final claim, petitioner alleges that he is entitled to be re-sentenced where the state trial court failed to recognize that it had the authority to depart below the mandatory minimum ten year sentence on his possession of between fifty and two hundred and twenty four grams of cocaine conviction, where there were substantial and compelling reasons to do so.
Petitioner's sentence of thirteen years, four months to twenty years was within the statutory maximum set under Michigan's controlled substances statute for the offense of possession of between fifty and two hundred and twenty four grams of cocaine. 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 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). Here, petitioner does not allege that his sentence was cruel and unusual under the Eighth Amendment, but merely contends that the state court did not recognize under Michigan law that it had the authority to depart below the mandatory minimum sentence. Because petitioner's argument that the trial court disregarded its authority to depart below the mandatory minimum ten year sentence is based on Michigan law, it is noncognizable on federal habeas review. See e.g. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988). To the extent that petitioner is arguing that the trial court failed to afford him individualized consideration of mitigating evidence on his behalf, this claim fails because the U.S. Supreme Court has limited its holding concerning mitigating evidence to capital cases. Alvarado v. Hill, 252 F.3d 1066, 1069 (9th Cir. 2001) (citing to Harmelin v. Michigan, 501 U.S. 957, 996 (1991)). Because petitioner had no constitutional right to an individualized sentence, no constitutional error would occur if the state trial court failed to consider mitigating evidence on his behalf at sentencing. Hastings v. Yukins, 194 F. Supp.2d 659, 673 (E.D.Mich. 2002).
IV. CONCLUSION
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. Allen v. Stovall, 156 F. Supp.2d 791, 798 (E.D.Mich. 2001).
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. 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. A habeas petitioner seeking to appeal the denial of a habeas petition will not be permitted to proceed in forma pauperis, where the appeal would be frivolous. Hence v. Smith, 49 F. Supp.2d 547, 549 (E.D.Mich. 1999).
V. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability and leave to appeal in forma pauperis are DENIED.