Opinion
Civil No. 03-CV-70962-DT
October 15, 2003
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
John Giegler, ("Petitioner"), presently confined at the Pine River Correctional Facility in St. Louis, 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 second-degree criminal sexual conduct, M.C.L.A. 750.520c(1)(A); M.S.A. 28.788(3)(1)(A). For the reasons stated below, the petition for writ of habeas corpus is DENIED.
I. Background
Petitioner was originally charged with one count of second-degree criminal sexual conduct for an incident involving his stepdaughter in Hartland, Michigan. After the preliminary examination was conducted on this charge, the examining magistrate bound over Petitioner to the Livingston County Circuit Court on an increased charge of first-degree criminal sexual conduct, upon the request of the prosecutor.
On March 8, 1996, Petitioner pleaded nolo contendere to the charge of second-degree criminal sexual conduct, in exchange for which the prosecutor agreed to dismiss the more serious first-degree criminal sexual conduct charge. As part of the plea agreement, the parties agreed that Petitioner would receive five years probation with the first year to be spent in the county jail. The parties further stipulated that Petitioner would have no contact with the complainant. (Plea Tr., p. 4). In response to the trial court's inquiry, Petitioner acknowledged that the maximum penalty for second-degree criminal sexual conduct was fifteen years. Petitioner also confirmed that the sentencing agreement called for him to receive five years probation and no more than one year in the county jail. The trial court advised Petitioner twice, however, that if he violated the terms of probation, he could be sentenced to up to fifteen years in prison. ( Id. at pp. 6-7, 8-9).
On April 4, 1996, Petitioner was sentenced to five years probation, with the first year to be spent in the county jail. The trial court also indicated that Petitioner was to have no contact with the complainant or her mother, who was his ex-wife, except regarding visitation matters involving the children from his marriage with his ex-wife. (Sent. Tr., p. 17-18).
On May 16, 1996, Petitioner was arraigned for violating probation by having contact with his ex-wife. Counsel was appointed for Petitioner and the matter was adjourned to give Petitioner time to consult with counsel.
On May 24, 1996, Petitioner and his counsel appeared for the probation violation hearing. At the start of the hearing, the trial court advised Petitioner that if he pleaded guilty to violating probation, he could receive up to fifteen years in prison. Petitioner indicated that he wanted to plead guilty to violating probation. Petitioner informed the court that his plea was voluntary and that he had not been threatened or promised anything in exchange for his plea. In response to the court's question, Petitioner acknowledged that it was true that he had contacted his ex-wife in this case on a number of occasions, had been warned not to do so by the probation department, but had nonetheless continued to write notes and make phone calls to her. Petitioner indicated that he was aware that he was to have no contact with the victim or the victim's family as part of probation. (Probation Violation Tr., pp. 4-6). Prior to sentencing on the probation violation, the prosecutor noted that after Petitioner had been sentenced on April 4th, he began violating the terms of the probation by having repeated contacts with the victim's mother. The probation department sent a letter to Petitioner informing him that he should have no contact with his ex-wife, but he took that letter and used it to write a note to his wife, after which he sent an additional eight or nine letters to her. ( Id. at pp. 8-9). Defense counsel responded by pointing out that the terms of probation had allowed Petitioner to have limited contact with his ex-wife for visitation purposes. Although conceding that Petitioner's letters and telephone calls did not involve the issue of visitation, counsel nonetheless asked the trial court not to send Petitioner to prison, noting that Petitioner's conduct involved mere "stupidity" and was a result of the fact that Petitioner was still upset after pleading guilty and was still in love with his ex-wife at the time. ( Id. at pp. 10-11). The court, however, sentenced Petitioner to three to fifteen years in prison. ( Id. at p. 15).
Petitioner's conviction was affirmed on appeal. People v. Giegler, 204106 (Mich.Ct.App. September 24, 1997); lv. den. 459 Mich. 854; 584 N.W.2d 586 (1998); reconsideration den. 459 Mich. 854; 589 N.W.2d 285 (1998). Petitioner's post-conviction motion for relief from judgment was denied by the trial court. People v. Giegler, 95-9015-FH (Livingston County Circuit Court, April 18, 2001). The Michigan appellate courts subsequently denied Petitioner leave to appeal from the denial of his post-conviction motion. People v. Giegler, 234119 (Mich.Ct.App. April 25, 2002); Iv. den. 467 Mich. 894; 653 N.W.2d 410 (2002); reconsideration den. — Mich. —; 656 N.W.2d (2003). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. Whether Petitioner's Due Process rights are violated and re-sentencing is invalid where [the] probation officer ignored administrative procedure and failed to notify Petitioner in writing of the possible consequences for violating probation?
II. Whether Petitioner's Due Process rights are violated where his sentence is based on false and inaccurate information, entitling Petitioner to be re-sentenced?
III. Whether Petitioner's Due Process rights were violated where crucial exculpatory evidence was suppressed, and Petitioner is entitled to re-sentencing where the judge is allowed to consider all the information?
IV. Whether Petitioner is entitled to specific performance where the trial court has ignored the provisions of the plea and sentencing agreement?
V. Whether Petitioner is entitled to withdraw his guilty plea to a probation violation where he was subjected to duress and undue influence by his under-paid court appointed attorney; rendering his plea involuntary?
VI. Whether Petitioner is denied his Sixth Amendment right to effective assistance of counsel where appointed counsel was not compensated enough to provide due diligence or effective representation?
VII. Whether Petitioner's Due Process rights are violated where [the] prosecutor maliciously enhances charges without cause or corroborating evidence; effectuating leverage to induce acceptance of guilty plea?
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).
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
Respondent contends that all of Petitioner's claims were procedurally defaulted because he raised them only for the first time in his post-conviction Motion for Relief from Judgment and the Michigan Supreme Court denied him relief pursuant to M.C.R. 6.508(D).
Although the issue of whether a claim is procedurally barred should ordinarily be resolved first, "judicial economy sometimes dictates reaching the merits [of a claim or claims] if the merits are easily resolvable against a petitioner while the procedural bar issues are complicated." Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (internal citations omitted). In this case, because "the procedural default issue raises more questions than the case on the merits", this Court will assume, for the sake of resolving the claims, that there is no procedural default by Petitioner and will decide the merits of the claims. Falkiewicz v. Grayson, 271 F. Supp.2d 942, 948 (E.D. Mich. 2003) (quoting Binder v. Stegall, 198 F.3d 177, 178 (6th Cir. 1999)).
In addition, for purposes of judicial clarity, the Court will consolidate Petitioner's claims which are interrelated.
A. Claims # 1, 3, 4, and 5. The involuntary plea claims.
In part of his first claim, as well as his third and fourth claims, Petitioner alleges that his plea of nolo contendere to the second-degree criminal sexual conduct charge was involuntary. In his fifth claim, Petitioner alleges that he was coerced by his defense attorney into pleading guilty to the probation violation.
In order for a plea of guilty or nolo contendere to be voluntarily and intelligently made, the defendant must be aware of the "relevant circumstances and likely consequences" of his plea. Hart v. Marion Correctional Institution, 927 F.2d 256, 257 (6th Cir. 1991). The defendant must also be aware of the maximum sentence that can be imposed for the crime for which he or she is pleading guilty. King v. Dutton, 17 F.3d 151, 154 (6th Cir. 1994). When a petitioner brings a federal habeas petition challenging his plea of guilty (or nolo contendere), the state generally satisfies its burden by producing a transcript of the state court proceedings showing that the plea was made voluntarily. Garcia v. Johnson, 991 F.2d 324, 326 (6th Cir. 1993). The factual findings of a state court that the guilty plea was properly made are generally accorded a presumption of correctness. Petitioner must overcome a heavy burden if the federal court is to overturn these findings by the state court. Id. A federal court will uphold a state court guilty or nolo contendere plea if the circumstances demonstrate that the defendant understood the nature and consequences of the charges and voluntarily chose to plead guilty or nolo contendere. See Hoffman v. Jones, 159 F. Supp.2d 648, 655-656 (E.D. Mich. 2001). Additionally, a habeas petitioner bears a heavy burden of rebutting the presumption that his or her guilty plea, as evidenced by the plea colloquy, is valid. Myers v. Straub, 159 F. Supp.2d 621, 626 (E.D. Mich. 2001).
It is only when the consensual character of a guilty plea is called into question that the validity of a guilty plea may be impaired. Mabry v. Johnson, 467 U.S. 504, 508-509 (1984). A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his or her own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (i.e. bribes). Id.
As part of his first claim, Petitioner appears to argue that his plea of nolo contendere was not made knowingly or voluntarily, because he was not informed that he could receive up to fifteen years in prison if he violated the terms of probation. A defendant need only be made aware of the direct consequences of a guilty plea for the plea to be made voluntarily and intelligently; a trial court is under no obligation to inform a defendant of all possible collateral consequences of a plea. King v. Dutton, 17 F.3d at 153. The possible consequences of a future probation violation are considered a collateral, as opposed to a direct, consequence of a plea of guilty. Myers v. Straub, 159 F. Supp.2d at 628; See also Warren v. Richland County Circuit Court, 223 F.3d 454, 457 (7th Cir. 2000). In any event, the trial court explained twice to Petitioner at the time of his nolo contendere plea that he could receive up to fifteen years in prison if he violated the terms of probation. This portion of Petitioner's first claim is without merit.
In his third claim, Petitioner contends that his plea of nolo contendere was rendered involuntary because the prosecutor suppressed exculpatory evidence.
Suppression by the prosecution of evidence favorable to the defendant upon request violates due process, where the evidence is material to either guilt or punishment of the defendant, irrespective of the good or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87 (1963). The burden is on a habeas petitioner to prove that evidence that is required to be disclosed to him under Brady was not disclosed to him. Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). Allegations that are merely conclusionary or which are purely speculative can not support a Brady claim. Murphy v. Johnson, 205 F.3d 809, 814 (5th Cir. 2000).
In the present case, Petitioner contends that there was a medical report which negated any evidence of abuse in this case, as well as several taped telephone conversations which support his assertions of innocence. Petitioner claims that these tapes were stolen from his house by his ex-wife. Petitioner, however, does not specify the contents of the medical report or the telephone conversations. Because his Brady claim is conclusionary and speculative, he is not entitled to habeas relief on this claim. Moreover, Petitioner indicates that the tape recordings of the telephone conversations had been at his house and had been stolen by his ex-wife. The requirements of Brady do not apply to "information that is not wholly within control of the prosecution." Coe v. Bell, 161 F.3d at 344. Because there is no allegations that these tape recordings were ever in the prosecutor's control, the suppression of these tapes did not violate the dictates of Brady.
More importantly, petitioner has failed to show that he would not have pleaded nolo contendere to the second-degree criminal sexual conduct charge had he been made aware of this allegedly exculpatory evidence. In the context of a habeas petition, the Sixth Circuit has held that a state criminal defendant may raise, even after a plea of guilty, a claim that prosecutors withheld exculpatory evidence in violation of Brady. United States v. Ross, 245 F.3d 577, 583, fn. 1 (6th Cir. 2001) (citing to Campbell v. Marshall, 769 F.2d 314 (6th Cir. 1985)). Campbell, however, requires a defendant to show that the withheld evidence "would have been controlling in the decision whether to plead." Campbell, 769 F.2d at 324. Moreover, a state's failure to disclose potentially exculpatory evidence to a defendant does not render the plea involuntary when the belated disclosure of this information does not detract from the credible factual basis for the habeas petitioner's otherwise voluntary and consensual plea. Id, at 321; See also Swingle v. Money, 215 F. Supp.2d 919, 924 (N.D. Ohio. 2002).
In the present case, Petitioner has failed to provide this Court with any specific details concerning the contents of the medical reports or the tape recorded telephone conversations. In this case, Petitioner's third claim fails, because Petitioner has failed to demonstrate how this evidence tended to prove his innocence or rationally affected his decision to plead nolo contendere. See United States v. Fitzhugh, 78 F.3d 1326, 1329 (8th Cir. 1996).
In his fourth claim, Petitioner alleges that the trial court breached the terms of the sentencing agreement from the original plea, which called for a maximum sentence of one year in the county jail, when the trial court sentenced Petitioner to three to fifteen years in prison for violating probation. An unfulfilled state promise obtained in return for a guilty plea will entitle a habeas petitioner to habeas relief. Myers v. Straub, 159 F. Supp.2d at 627 (citing to Montoya v. Johnson, 226 F.3d 399, 405 (5th Cir. 2000)). However, a federal court sitting in habeas review should not "lightly find misrepresentation in a plea agreement." Montoya, 226 F.3d at 406.
In this case, the original plea agreement included a sentencing agreement that Petitioner receive five years probation and no more than one year in the county jail. The trial court twice advised Petitioner that if he violated the terms of probation, he could receive up to fifteen years in prison. The trial court's original sentence of five years probation with the first year in the county jail was in compliance with the plea and sentencing agreement. Petitioner's sentence of three to fifteen years in prison for violating the terms of probation did not violate the original plea agreement, because Petitioner was initially sentenced in accordance with the plea agreement and was advised that he could be subject to future incarceration if he violated the terms of probation. Lucero v. Kerby, 1 F.3d 1520, 1522 (10th Cir. 1993). Moreover, the fact that Petitioner did not object to the prison sentence at the time that his probation was revoked lends credence to this Court's conclusion that Petitioner knew that the original sentencing agreement applied to the original sentence and not to any subsequent probation violation. Id.
In his fifth claim, Petitioner alleges that he was coerced by his defense counsel into pleading guilty to violating probation. Where a trial court has scrupulously followed the required procedure for taking a guilty plea, a defendant is bound by his statements in response to the court's inquiries. Myers v. Straub, 159 F. Supp.2d at 628. A habeas petitioner who in response to questions from a state trial court answers that he had not been threatened, coerced, or promised anything in return for his guilty plea is bound by that answer in his claim for habeas relief and is not entitled to an evidentiary hearing on the issue of whether he was coerced into pleading guilty. See Rogers v. Maggio, 714 F.2d 35, 38, fn. 5 (5th Cir. 1983).
In the present case, the trial court specifically asked Petitioner at the probation violation hearing if anyone had made any threats to get him to plead guilty. Petitioner had denied that any threats had been made to induce his plea of guilty to the probation violation charge. Petitioner has presented no evidence to this Court to rebut his plea colloquy, therefore, he is not entitled to habeas relief on this claim.
B. Claims # 1 and # 2. The probation violation sentencing claims.
In part of his first claim, and again in his second claim, Petitioner claims that his due process rights were violated at the sentencing on the probation violation.
As part of his first claim, Petitioner contends that he is entitled to re-sentencing because the probation officer violated Michigan law by failing to notify Petitioner, in writing, of all of the possible consequences of failing to adhere to the conditions of probation. Violations of state law and procedure which do not infringe specific federal constitutional protections are not cognizable claims under Section 2254. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Violations of state laws involving probation revocation procedures are noncognizable in federal habeas review. See e.g. Tiitsman v. Black 536 F.2d 678, 681 (6th Cir. 1976).
Petitioner also contends that his probation revocation should be set aside because neither the sentencing court, the prosecutor, defense counsel, or the probation officer defined what the "no contact" condition of his probation order meant. Petitioner contends that he believed that the "no contact" provision only prohibited him from having physical contact with the victim or his ex-wife.
Although a probationer is entitled to notice of what conduct will result in a probation violation, so that he or she can conform his or her conduct accordingly, "fair warning is not to be confused with the fullest, or most pertinacious, warning imaginable. Conditions of probation do not have to be cast in letters six feet high, or describe every possible permutation, or to spell out every last, self-evident detail." United States v. Gallo, 20 F.3d 7, 12 (1st Cir. 1994). In the present case, the trial court advised Petitioner that he was to have no contact with the victim or his ex-wife, except as to visitation matters. The trial court did not condition this "no contact" provison to prohibit only physical contact between Petitioner and his ex-wife. Moreover, Petitioner admitted at the probation violation hearing that he had been warned by the probation department not to have any contact by telephone or by letter with his ex-wife but that he continued to do so. In light of Petitioner's own admissions at the probation violation hearing, this Court finds Petitioner's argument that he did not understand the "no contact" condition to be unpersuasive. See Riggins v. State, 830 So.2d 920, 921 (Fla.App. 2002).
In his second claim, Petitioner alleges that the trial court's probation violation sentence was based on false and inaccurate information. Petitioner specifically claims that the trial court should not have relied on the prosecutor's representation that he sent eight or nine letters to his ex-wife after having been warned by the probation department to refrain from doing so. A criminal defendant possesses a constitutional right not to be sentenced on the basis of "misinformation of constitutional magnitude." Roberts v. United States, 445 U.S. 552, 556 (1980); Townsend v. Burke, 334 U.S. 736, 741 (1948) (stating that reliance on "extensively and materially false" information, which the prisoner had no opportunity to correct, violates due process of law). In order to prevail on a claim that a trial court relied on inaccurate information at sentencing, a habeas petitioner must demonstrate that the sentencing court relied upon this information and that it was materially false. Welch v. Burke, 49 F. Supp.2d 992, 1007 (E.D. Mich. 1999). Where a petitioner fails to demonstrate in his or her petition that the sentencing court relied upon materially false information in imposing sentence, this claim is without merit. Thomas v. Foltz, 654 F. Supp. 105, 108 (E.D. Mich. 1987).
In the present case, Petitioner has failed to show that the trial court relied on false or inaccurate information in sentencing him to prison for violating probation. Petitioner acknowledged that he had violated probation by sending letters to his ex-wife after the probation department had warned him not to do so. The state post-conviction courts' factual determination that the trial court did not rely on inaccurate information in sentencing Petitioner to prison for violating probation was not unreasonable, because it was "at least minimally consistent with the facts and circumstances of the case" and thus, habeas relief is not warranted. Lechner v. Litscher, 213 F. Supp.2d 975, 985 (E.D. Wis. 2002).
C. Claim # 6. The ineffective assistance of counsel claim.
In his sixth claim, Petitioner contends that he was deprived of the effective assistance of counsel at his probation violation hearing.
To show that he 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. In other words, a defendant must overcome the presumption that, under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, the defendant must show that such performance prejudiced his defense. Id. In order to satisfy the prejudice requirement for an ineffective assistance of counsel claim in the context of a guilty plea, the defendant must show that there is a reasonable probability that, but for counsel's errors, he or she would not have pleaded guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). An assessment of whether a defendant would have gone to trial but for counsel's errors "will depend largely on whether the affirmative defense likely would have succeeded at trial." Id., at 59. This prong of the inquiry is not satisfied merely by a habeas petitioner's testimony that he would have gone to trial had he known of a defense to the charges, "since a defendant's testimony after the fact suffers from obvious credibility problems". Panuccio v. Kelly, 927 F.2d 106, 109 (2nd Cir. 1991) (internal quotation omitted).
As an initial matter. Petitioner contends that he was deprived of the effective assistance of counsel because his court-appointed attorney was inadequately compensated. The mere fact that Petitioner's court-appointed attorney may have been underpaid is insufficient, in and of itself, to show the deprivation of the effective assistance of counsel. See State v. Sanders, 92 Ohio St.3d 245, 275-76; 750 N.E.2d 90 (Ohio 2001); cert. den. sub nom Sanders v. Ohio, 535 U.S. 1036 (2002) (allegations that defense counsel was inadequately compensated not an indepedent ground for establishing an ineffective assistance of counsel claim); United States v. Jones, 801 F.2d 304, 315 (8th Cir. 1986) (fact that the defendant's court-appointed attorney was allegedly not paid sufficient fees under the Criminal Justice Act did not mean that the defendant was deprived of the Sixth Amendment right to the effective assistance of counsel); Resek v. State, 715 P.2d 1188, 1191-92 (Alaska App. 1986) (statutory fee schedule which created limited remuneration for court-appointed counsel did not create presumption of ineffective assistance of counsel without inquiry into the attorney's actual performance to determine whether the attorney failed to show skill, determination, and diligence required of a competent defense attorney). Petitioner would therefore have to establish that counsel's performance at the probation violation hearing was deficient and prejudicial in order to prevail on this claim.
Petitioner appears to contend that counsel was ineffective for failing to object to the trial court breaching the terms of the plea agreement by sentencing him to prison for violating probation. As mentioned when discussing Petitioner's fourth claim, the trial court's probation violation sentence was not a breach of the original plea agreement. Because Petitioner's probation violation sentence did not violate the terms of the original plea agreement, defense counsel had no basis to advise Petitioner to withdraw his nolo contendere plea to the second-degree criminal sexual conduct charge or to object to the sentence. Lucero v. Kerby, 7 F.3d at 1522.
Petitioner also alleges that his defense counsel refused to discuss a defense to the probation violation charge or argue mitigating circumstances at the time of sentencing. Petitioner, however, has failed to identify what defense, if any, he had to the probation violation charge, nor does he indicate what mitigating circumstances existed on his behalf. A habeas petitioner's conclusory allegation that his attorney failed to adequately present a defense, without specifying what more his attorney could have done to strengthen his defense, is insufficient to establish ineffective assistance of counsel. Campbell v. Grayson, 207 F. Supp.2d 589, 598 (E.D. Mich. 2002). Petitioner has therefore failed to establish that he was deprived of the effective assistance of counsel at his probation violation hearing.
D. Claim #7. The charge enhancement claim.
In his seventh claim, Petitioner alleges that the prosecutor improperly requested that a more serious charge of first-degree criminal sexual conduct be added against him at the conclusion of the preliminary examination, so that the prosecutor could obtain leverage over him to induce a guilty plea.
When a criminal defendant has admitted in open court that he or she is guilty of the offense with which he or she is charged, the defendant may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Petitioner's nolo contendere plea would waive any right to challenge any improprieties which may have occurred at the preliminary examination. See Bostick v. Craven, 429 F.2d 23, 24 (9th Cir. 1970). Petitioner is not entitled to habeas relief on his final claim.
A nolo contendere plea also constitutes a waiver of all non-jurisdictional defects. United States v. Freed, 688 F.2d 24, 25 (6th Cir. 1982).
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 federal district court may grant or deny a certificate of appealability when the court issues a ruling on the habeas petition. Castro v. United States, 310 F.3d 900, 901 (6th Cir. 2002). A district court thus 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 at 629. 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.
V. ORDER
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.