Opinion
Case Number 08-12828
10-06-2011
SCOTT LESANE, Petitioner, v. BLAINE LAFLER, Respondent.
Honorable David M. Lawson
ORDER DENYING CERTIFICATE OF APPEALABILITY
Michigan prisoner Scott LeSane filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for second-degree murder, assault with intent to commit great bodily harm less than murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony. He was found guilty of those charges by a jury in the Wayne County, Michigan circuit court. The petitioner argued that he is in custody in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution because the trial court did not instruct the jury on a lesser included offense, and his trial attorney was constitutionally ineffective. The Court found that the petitioner's claims lack merit and denied his petition.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts:
The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. . . . If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, a party may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts.
A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Courts must either issue a certificate of appealability indicating which issues satisfy the required showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997). To receive a certificate of appealability, "a petitioner must show that reasonable jurists could debate whether (or, for that matter, 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." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotes and citations omitted).
The Court now concludes that the petitioner has failed to make a substantial showing that he was denied his constitutional rights and that reasonable jurists could not debate the correctness of the Court's decision. Therefore, the Court will deny a certificate of appealability.
Accordingly, it is ORDERED that a certificate of appealability is DENIED.
DAVID M. LAWSON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on October 6, 2011.
DEBORAH R. TOFIL