OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

LAWRENCE P. ZATKOFF, District Judge.

Eric Lively, ("Petitioner"), confined at the Carson City Correctional Facility in Carson City, 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 for possession with intent to deliver methylenedioxymethamphetamine (commonly known as "Ecstasy"), M.C.L.A. 333.7401(2)(b)(i), and possession of marijuana, M.C.L.A. 333.7403(2)(d). For the reasons stated below, the petition for writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted of the above offenses following a jury trial in the Wayne County Circuit Court, in which he was tried jointly with his wife and co-defendant Sheila Marie Lively. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This case arises out of the execution of a search warrant at defendants' home at 608 Poplar Street in Wyandotte on August 17, 2004. Sheila's son, Harold Hammond, was home at the time of the search, but defendants were not. As this Court previously noted in People v. Lively, unpublished opinion per curiam of the Court of Appeals, issued November 21, 2006 (Docket Nos. 264222 and 264223), slip op, pp 2-3:

People v. Lively, No. 284525, * 2-3 (Mich.Ct.App. January 7, 2010).

II. Standard of Review

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

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. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An "unreasonable application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ 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 410-11.

The Supreme Court has explained that "[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The "AEDPA thus imposes a `highly deferential standard for evaluating state-court rulings,'and `demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S.Ct. 1855, 1862 (2010)(internal quotations omitted). "[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S.Ct.770, 786 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

III. Discussion

A. Claims # 1, # 4, # 5, and # 7. The Fourth Amendment claims.

The Court will consolidate petitioner's Fourth Amendment claims for judicial clarity. In his first claim, petitioner alleges that the state trial court erred in failing to conduct an evidentiary hearing regarding petitioner's allegation that Detective Galeski had falsely stated in the affidavit in support of the search warrant that he had engaged in a trash pull at petitioner's house at 4:00 p.m. on August 16, 2004. In his fourth claim, petitioner contends that the search warrant was invalid because the information to support the issuance of the warrant came from an unreliable informant. In his fifth claim, petitioner contends that the Michigan Court of Appeals erred in concluding that a good-faith exception to the exclusionary rule applied in this case. In his seventh claim, petitioner again claims that the search warrant was invalid because it was based on an unreliable informant and that the police failed to independently investigate whether petitioner and his wife were trafficking in illegal drugs or in possession of firearms.

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, 494-95 (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. See Wynne v. Renico, 279 F.Supp.2d 866, 892 (E.D. Mich. 2003); rev'd on other grds 606 F.3d 867 (6th Cir. 2010). Indeed, under Stone, the correctness of a state court's conclusions regarding a Fourth Amendment claim "is simply irrelevant." See Brown v. Berghuis, 638 F.Supp.2d 795, 812 (E.D. Mich. 2009).

In the present case, petitioner was able to litigate his Fourth Amendment claims in the trial court and twice in the Michigan appellate courts, first, when the prosecution appealed the trial court's decision to suppress the evidence, and secondly, on petitioner's appeal of right following his conviction. Petitioner is thus unable to raise a Fourth Amendment claim that the evidence in this case was the product of an illegal search when he raised the factual basis for his claims in the state trial and appellate courts and the state courts thoroughly analyzed the facts and applied the proper constitutional law in rejecting his claims. Machacek, 213 F. 3d at 952. Because the petitioner was afforded opportunities to present his case regarding the validity of the search, Stone bars his Fourth Amendment claims. Brown, 638 F. Supp. 2d at 813.

Petitioner, however, argues that he did not have a full and fair opportunity to litigate his Fourth Amendment claim because the state trial judge never conducted an evidentiary hearing pursuant to Franks v. Delaware concerning petitioner's allegations that Detective Galeski had knowingly and intentionally provided false information in the search warrant affidavit concerning the time that he engaged in the trash pull at petitioner's house. In Franks v. Delaware, 438 U.S. 154 (1978), the United States Supreme Court held that an affidavit of probable cause in support of a request for a search warrant that is valid on its face may be challenged by a defendant if it can be shown that 1) the affidavit contains intentionally or recklessly false statements, and 2) the affidavit purged of its falsities would not be sufficient to support a finding of probable cause. Id. at 171-72.

The trial judge's failure to conduct an evidentiary hearing does not mean that the petitioner did not have a full and fair opportunity to litigate his Fourth Amendment claim. The Sixth Circuit has ruled that a habeas petitioner's Fourth Amendment claim was barred by the Stone v Powell doctrine in a case where the state court had denied the petitioner's motion to suppress evidence without hearing live testimony, implicitly finding that the petitioner had been provided a full and fair opportunity to litigate his Fourth Amendment claim in the state courts even though no live testimony was taken. See Jennings v. Rees, 800 F.2d 72, 74, 76-77 (6th Cir. 1986).

Moreover, petitioner presented his Franks claim to the Michigan Court of Appeals on his appeal of right following his conviction. The Michigan Court of Appeals addressed petitioner's claim and determined that no Franks hearing was necessary, because even absent the evidence that was obtained from the trash pull, there was sufficient information to support the issuance of a search warrant in this case, namely, the informant's statement that he had purchased narcotics from petitioner's stepson. Lively, Slip. Op. at 5. The opportunity to litigate, for purposes of Stone v. Powell, encompasses more than an evidentiary hearing in the trial court, and can also include the presentation of a Fourth Amendment claim to the state appellate courts as part of direct review of the petitioner's conviction. See Rashad v. Lafler, 675 F.3d 564, 570 (6th Cir. 2012)(petitioner had ample opportunities in state court to present his Fourth Amendment claims, thus precluding federal habeas relief based on the state court's failure to apply the exclusionary rule; trial court rejected defendant's Fourth Amendment claims on forfeiture grounds because his attorney did not show up at a hearing designed to consider them, and a state appellate court rejected his claims on the merits). Because all of the material facts were before the state appellate courts on direct review and the appellate process was not otherwise deficient, the petitioner had a full and fair opportunity to litigate his Fourth Amendment claims. Petitioner is not entitled to relief on these claims.

B. Claims # 2 and # 6. The ineffective assistance of counsel claims.

In his second and sixth claims, petitioner contends that his trial counsel was ineffective for failing to move for a Franks hearing in the state trial court or for failing to investigate witnesses that would establish that the detective's statements regarding the trash pull were false.

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. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); See also Mack v. Jones, 540 F.Supp.2d 840, 848 (E.D. Mich. 2008).

The Michigan Court of Appeals rejected petitioner's ineffective assistance of counsel claims on his appeal of right following his conviction, on the ground that a Franks hearing was unnecessary because there was sufficient content remaining in the search warrant affidavit even absent the trash pull allegations to support the issuance of a search warrant. Lively, Slip. Op. at 5. Because there was sufficient information to support the issuance of a search warrant absent the evidence from the trash pull, counsel was not ineffective in failing to conduct a Franks hearing or to otherwise investigate for such a hearing. See Fudge v. U.S., 673 F.Supp.2d 568, 576-77 (W.D. Mich. 2009). Petitioner is not entitled to relief on his ineffective assistance of counsel claims.

C. Claim # 3. The prosecutorial misconduct claims.

Petitioner finally contends that he was deprived of a fair trial because of prosecutorial misconduct.

"Claims of prosecutorial misconduct are reviewed deferentially on habeas review." Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004)(citing Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor's improper comments will be held to violate a criminal defendant's constitutional rights only if they "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will thus form the basis for habeas relief only if the conduct was so egregious as to render the entire trial fundamentally unfair based on the totality of the circumstances. DeChristoforo, 416 U.S. at 643-45. In order to obtain habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show that the state court's rejection of his prosecutorial misconduct claim "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012)(quoting Harrington, 131 S. Ct., at 786-87).

Petitioner first contends that the prosecutor committed misconduct several times during her cross-examination of him.

On cross-examination, petitioner admitted that he committed a breaking and entering in the past, but denied breaking into two people's homes. Petitioner claims that the prosecutor improperly responded, "quit trying to minimize your liability. You broke into two people's houses, didn't you?" Petitioner subsequently admitted to being involved in two previous break-ins. Later, on cross-examination, when petitioner was attempting to explain why he had been untruthful in his statement to Detective Galeski, the prosecutor stated, "Do you think if you keep repeating the same lie it becomes the truth?" Petitioner claims that the use of the word "lie" was prejudicial. Finally, on direct examination, petitioner had testified about the robbery and sexual assault that motivated defendants' use of Ecstasy. On cross-examination, the prosecutor asked petitioner whether the robbers broke in to steal his drugs and whether he consequently shared some responsibility for the robbery and sexual assault.

Even if the prosecutor's questions during the cross-examination of petitioner were somehow improper, they were not so flagrant as to amount to prosecutorial misconduct, in light of the fact that the comments were isolated and the evidence against petitioner, including his statement made to police after arrest, was very strong. See Smith v. Mitchell, 567 F.3d 246, 256 (6th Cir. 2009).

Petitioner next contends that the prosecutor committed misconduct when she stated in her closing argument that the defendants' practice of giving Ecstasy to Hammond as "warped" and suggested that petitioner and his wife condoned illegal drug use in their home.

The prosecutor's brief comments that petitioner was "warped" and condoned illegal drug usage did not rise to the level of a constitutional violation. See e.g. Hutchison v. Bell, 303 F.3d 720, 750-51 (6th Cir. 2002)(denying habeas claim of prosecutorial misconduct based on references to defendant as having "evil ways" and being "an evil force"). This would be particularly so in light of the fact that the jurors were instructed that the lawyers' arguments were not evidence. Moreover, in light of the strong evidence against petitioner, the prosecutor's comments were harmless error at worst. Petitioner is not entitled to habeas relief on his third claim.

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, 483-84 (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. "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.

For the reasons stated in this opinion, the Court will deny petitioner a certificate of appealability because jurists of reason would not find this Court's resolution of his claims to be debatable. See Strayhorn v. Booker, 718 F.Supp.2d 846, 854 (E.D. Mich. 2010). The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Myers v. Straub, 159 F.Supp.2d 621, 629 (E.D. Mich. 2001).

V. ORDER

Accordingly, the Petition for Writ of Habeas Corpus is DENIED.

The Court further DENIES a certificate of appealability and leave to appeal in forma pauperis.