GORDON J. QUIST, District Judge.
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.
Petitioner Ivery Christopher Cross, III pleaded guilty in the Berrien County Circuit Court to three counts of second-degree criminal sexual conduct (CSC II), MICH. COMP. LAWS § 750.520c(1)(c), and misconduct in office, MICH. COMP. LAWS § 750.505. On May 27, 2011, Petitioner was sentenced to three concurrent prison terms of five to fifteen years on the CSC II convictions, and one term of twenty-three months to five years on the misconduct-in-office conviction.
Petitioner, who was an officer with the Niles Police Department, initially was charged in a five-count felony information. In addition to the four counts to which he pleaded guilty, Petitioner also was charged with one count of first-degree criminal sexual conduct (CSC I). According to the indictment, on March 17, 2011, while acting in his law-enforcement capacity, Petitioner committed a series of criminal sexual acts with an inmate at the Niles City Police Complex.
On April 19, 2011, Petitioner waived his preliminary examination and pleaded guilty to the CSC II charges and the misconduct-of-office charge, in exchange for the dismissal of the CSC I charge and an agreement to be sentenced within the guideline range on the minimum sentence of 36 to 71 months.
On November 22, 2011, Petitioner filed a motion to withdraw the plea, contending that his attorney provided ineffective assistance of counsel, misleading him into accepting the plea agreement. Petitioner specifically contended that counsel misrepresented the sentence he would face if convicted of CSC I, misrepresented Petitioner's eligibility for boot camp or alternative placement, misrepresented Petitioner's eligibility for good-time credits, and failed to disclose to Petitioner that the guideline sentence would be his minimum sentence, not his maximum sentence. Petitioner also argued that the plea was illusory, depriving him of his Fifth Amendment right to due process. On February 16, 2012, the trial court held a lengthy evidentiary hearing on the issues. (See Tr. of Mot. to Withdraw Plea Hr'g (Hr'g Tr.), docket #2-5, Page ID##67-262.) In a thorough opinion and order issued June 18, 2012, the trial court denied the motion. (Cir. Ct. Op. & Ord. Denying Mot. to Withdraw Plea (Cir. Ct. Op.), Docket #2-8, Page ID##298-314.)
Petitioner filed an application for leave to appeal to the Michigan Court of Appeals, raising the same two grounds presented in the motion to withdraw the plea. (See Appl. for Leave to App., docket #9, Page ID#551.) In a standard order issued January 2, 2013, the court of appeals denied leave to appeal for lack of merit in the grounds presented. (Mich. Ct. App. Ord. (MCOA Ord.), docket #8.) Petitioner sought leave to appeal the same grounds to the Michigan Supreme Court. The supreme court denied leave to appeal on May 28, 2013.
Petitioner filed the instant habeas application on May 13, 2014. He raises the same two federal constitutional grounds presented in the state courts:
Because Petitioner has filed copies of all relevant parts of the record, this Court has sufficient information to conduct a complete review of his claims on the merits.
This action is governed by the Antiterrorism and Effective Death Penalty Act, PUB. L. 104-132, 110 STAT. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). The AEDPA "prevents federal habeas `retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d).
The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). The Court may consider only the "clearly established" holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). Moreover, "clearly established Federal law" does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 132 S.Ct. 38 (2011). "In Greene, the Court clarified that state courts must follow clearly established law as it existed `at the time of the state-court adjudication on the merits.'" Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014). "That is, under 28 U.S.C. § 2254(d), `clearly established Federal law' is the law at the time the original decision was made, not as [the Sixth Circuit had previously held], the law `before the conviction became final.'" Miller, 642 F.3d at 644 (quoting Greene, 132 S. Ct. at 44).
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth by the Supreme Court, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-406). The court may grant relief under the "unreasonable application" clause "if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case." Id. 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." Williams, 529 U.S. at 411; accord Bell, 535 U.S. at 699. Rather, the issue is whether the state court's application of clearly established federal law is "objectively unreasonable." Id. at 410. "[R]elief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question." White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 1706-07 (2014) (quoting Harrington v. Richter, 131 S.Ct. 770, 784 (2011)).
The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989). Applying the foregoing standards under the AEDPA, the Court finds that Petitioner is not entitled to relief.
Petitioner raises two constitutional challenges to the validity of his guilty plea. First, he contends that his plea was not knowingly and voluntarily entered because his decision was based on the constitutionally inadequate and ineffective assistance of counsel. Second, he asserts that his plea agreement violated the Fifth Amendment because the benefits of the agreement were illusory.
A defendant has no constitutionally guaranteed right to withdraw a guilty plea. See Carwile v. Smith, 874 F.2d 382 (6th Cir. 1989). It has long been the case that a valid guilty plea bars habeas review of most non-jurisdictional claims alleging antecedent violations of constitutional rights. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Among claims not barred are those that challenge "the very power of the State to bring the defendant into court to answer the charge against him," Blackledge v. Perry, 417 U.S. 21, 30 (1974), and those that challenge the validity of the guilty plea itself. See Hill v. Lockhart, 474 U.S. 52, 58 (1985); Haring v. Prosise, 462 U.S. 306, 320 (1983); Tollett, 411 U.S. at 267. A plea not voluntarily and intelligently made has been obtained in violation of due process and is void. See McCarthy v. United States, 394 U.S. 459, 466 (1969). Petitioner's claim does not challenge the power of the state to bring him into court. Thus, the only means available for challenging his conviction is to claim that his plea is invalid, i.e., it was not knowingly and voluntarily entered into. See Mabry v. Johnson, 467 U.S. 504, 508 (1984) ("It is well-settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.").
The test for determining a guilty plea's validity is "`whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill, 474 U.S. at 56 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). Courts assessing whether a defendant's plea is valid look to "all of the relevant circumstances surrounding it." Brady v. United States, 397 U.S. 742, 749 (1970). In order to find a constitutionally valid guilty plea, several requirements must be met. The defendant pleading guilty must be competent, see Brady, 397 U.S. at 756, and must have notice of the nature of the charges against him, see Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976); Smith v. O'Grady, 312 U.S. 329, 334 (1941). The plea must be entered "voluntarily," i.e., not be the product of "actual or threatened physical harm, or . . . mental coercion overbearing the will of the defendant" or of state-induced emotions so intense that the defendant was rendered unable to weigh rationally his options with the help of counsel. Brady, 397 U.S. at 750; Machibroda v. United States, 368 U.S. 487, 493 (1962) ("A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void."). The defendant must also understand the consequences of his plea, including the nature of the constitutional protection he is waiving. Henderson, 426 U.S. at 645 n.13; Brady, 397 U.S. at 755; Machibroda, 368 U.S. at 493 ("Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.") (internal quotations and citation omitted). Finally, the defendant must have available the advice of competent counsel. Tollett, 411 U.S. at 267-68; Brady, 397 U.S. at 756; McMann v. Richardson, 397 U.S. 759, 771 & n.14 (1970). The advice of competent counsel exists as a safeguard to ensure that pleas are voluntarily and intelligently made. Cf. Henderson, 426 U.S. at 647 ("[I]t may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit."); Brady, 397 U.S. at 754 (suggesting that coercive actions on the part of the state could be dissipated by counsel).
Petitioner argues that his trial attorney rendered constitutionally ineffective assistance of counsel by giving improper advice to Petitioner during the plea negotiation process and otherwise coercing Petitioner into taking the plea. Petitioner and his family testified that he did not want to take the plea deal, but he was pushed to do so by counsel through a variety of representations. They variously testified that counsel inaccurately represented that Petitioner was facing a minimum sentence of 25 years or a maximum of life if he was convicted of CSC I, rather than the likely minimum of between 135 and 225 months. He also alleges that counsel did not advise him that there existed no serious risk of his ultimate conviction of CSC I, in light of the complainant's varying statements on penetration. Petitioner next contends that counsel did not advise him that the sentencing range stipulated in the plea agreement for the CSC II convictions was the same as that to which he was legally entitled, even without an agreement. In addition, he asserts that counsel did not make it clear to him that his guideline sentence was only a minimum sentence and that he would not necessarily be released until he had served the maximum term of 15 years. Further, Petitioner contends that he was told that he was potentially eligible for boot camp or alternative placement, despite the fact that he was not eligible for that placement. Finally, Petitioner claims that his attorney told him that he would be entitled to earn good-time credit in prison, thereby reducing the amount of prison time he would ultimately complete. Petitioner contends that, but for these misrepresentations, he would not have pleaded guilty.
In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that counsel's performance fell below an objective standard of reasonableness; and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome. A court considering a claim of ineffective assistance must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The defendant bears the burden of overcoming the presumption that the challenged action might be considered sound trial strategy. Id. (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d 130, 135 (6th Cir. 1996) (holding that counsel's strategic decisions were hard to attack). The court must determine whether, in light of the circumstances as they existed at the time of counsel's actions, "the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Even if a court determines that counsel's performance was outside that range, the defendant is not entitled to relief if counsel's error had no effect on the judgment. Id. at 691. Moreover, as the Supreme Court repeatedly has recognized, when a federal court reviews a state court's application of Strickland under § 2254(d), the deferential standard of Strickland is "doubly" deferential. Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 134 S.Ct. 10, 13 (2013); Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011); Premo v. Moore, 131 S.Ct. 733, 740 (2011).
The two-part Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Regarding the first prong, the court applies the same standard articulated in Strickland for determining whether counsel's performance fell below an objective standard of reasonableness. Id. In analyzing the prejudice prong, the focus is on whether counsel's constitutionally deficient performance affected the outcome of the plea process. "[I]n order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59.
In response to Petitioner's motion to withdraw the plea, the trial court set an evidentiary hearing,
At the plea proceeding, while under oath, defendant stated:
This exchange then took place between Judge Bruce and the defendant:
(Cir. Ct. Op. at 3-4, Page ID##300-31.)
In analyzing Petitioner's claim of ineffective assistance of counsel, the trial court properly recognized the limitations on Petitioner's right to challenge his plea. (Id. at 6-7, Page ID##303-04.) The court also carefully and accurately set forth the Strickland standard for analyzing the claim of ineffective assistance of counsel. (Id. at 5-6, Page ID##302-03.) Applying those standards, the court held:
(Cir. Ct. Op. at 7-11, Page ID##304-08.)
In his brief in support of his habeas petition, Petitioner does not argue that the state court relied on the incorrect constitutional standard. Instead, he argues that the state court made unreasonable factual findings and unreasonably concluded that counsel had been ineffective under the AEDPA standard. Petitioner contends that the trial court effectively ignored the testimony of Petitioner and Petitioner's family about counsel's misrepresentations concerning the length of prison term faced by Petitioner if convicted of CSC I; the fact that the guidelines controlled only the minimum sentence, not the maximum sentence; and Petitioner's potential eligibility for probation, community placement, and good-time credit. Petitioner contends that the alleged advice was constitutionally deficient and was inherently coercive, so as to undermine the voluntariness of the confession.
Contrary to Petitioner's arguments, it is apparent from the lengthy analysis contained in the opinion that the trial court fully considered the testimony provided by Petitioner's family members. In reaching its result, the court addressed each of the major credibility issues, and its analysis is supported by the transcript of the proceeding. (See Hr'g Tr., Page ID##67-270.) As previously discussed, a habeas court may only grant relief if the state court decision was either legally or factually unreasonable. See 28 U.S.C. § 2254(d). Moreover, a determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429; Bailey, 271 F.3d at 656. Although Petitioner apparently does not agree with the trial court's findings, he fails to overcome the presumption that those findings were correct. In addition, he fails to overcome the doubly deferential standard applied by a habeas court to a state-court's application of Strickland. See Harrington, 131 S. Ct. at 788 (citing Knowles, 556 U.S. at 123).
Further, although not directly addressed by the state court, Petitioner's family's representations could only bolster Petitioner's own claim not to have understood the nature of his guilty plea and likely sentences. They could not themselves demonstrate the ineffective assistance of counsel, as family members were not present for all of the conversations between Petitioner and his attorney. In fact, Petitioner's father admitted that he had met with Petitioner's attorney only a couple of times before the plea and once after the plea was entered and that Petitioner was not present at any of those meetings. (Hr'g Tr. at 15-16, Page ID##81-82.) Both Petitioner's father and his mother acknowledged that they had no knowledge of what the attorney told Petitioner during other meetings, which they knew had occurred. (Id. at 15-16, 44-45, Page ID##81-82, 110-11.) In addition, Petitioner's mother acknowledged that Petitioner could have understood the attorney differently than she did, which was itself different than what her husband understood. (Id. at 43-44, Page ID##109-10.) Both parents and Petitioner's sister testified somewhat differently about their understandings of the potential outcomes. Regardless, their evidence could not establish what Petitioner actually knew, and could not overcome the numerous reasons provided by the trial court for disbelieving Petitioner's story — his experience as a police officer, his recent professional involvement in a sexual assault case, his educational background, the numerous references on the record to minimum and maximum sentences, and the fact that Petitioner was advised by both his attorney and his investigator who had previously served as head of probation, both of whom were very familiar with Michigan sentencing law and advised him to accept the plea agreement. Further, trial counsel testified that he was handicapped in being able to fully advise Petitioner's family about the facts which Petitioner had revealed, both in a police statement and in his meetings with his attorney, because Petitioner did not want his parents to know the facts and did not want them to see the tape of the police interview. (Id. at 157-160.) As a result, what the family members knew or understood was substantially irrelevant to the inquiry in which the court engaged.
For all these reasons, the state-court's determination that trial counsel was not ineffective rested on an entirely reasonable finding of the facts and constituted a reasonable application of clearly established Supreme Court precedent.
Petitioner next argues that any benefit he obtained from the plea agreement was illusory, in violation of his right to due process under the Fifth and Fourteenth Amendments. Specifically, Petitioner contends that, by his attorney's own admission at the evidentiary hearing, the chances of his being convicted of CSC I were virtually nonexistent in light of supplemental statements from the complaining witness. In addition, Petitioner argues that the promise to sentence him within a particular guidelines range was illusory because that range was identical to the one applicable under the guidelines. In support of his argument, Petitioner refers, as he did in the state courts, to the prosecutor's remarks at the sentencing hearing and to an article that appeared in the South Bend Tribune about his entry of his plea. (See App. 6 & 7 to Pet'r's Br., Page ID##273-296.)
A plea of guilty or nolo contendere must be knowingly and voluntarily made. See Henderson, 426 U.S. at 645 n.13; Brady, 397 U.S. at 755; Machibroda, 368 U.S. at 493. The voluntariness of a guilty or no contest plea is determined in light of all relevant circumstances surrounding the plea. Brady, 397 U.S. at 749. A plea agreement is deemed involuntary and unknowing if a defendant is unaware that the prosecution's promise is illusory. United States v. Randolph, 230 F.3d 243, 250-51 (6th Cir. 2000). However, where a defendant is "fully aware of the likely consequences" of a plea, it is not unfair to expect him to live with those consequences. Mabry, 467 U.S. at 511.
Considering all of the relevant circumstances, the trial court carefully analyzed both of Petitioner's arguments concerning the illusory nature of the plea. The court first concluded that the agreement to dismiss the CSC I charge conferred a real benefit upon Petitioner:
People v Mrozek, supra, at 309-10.
(Cir. Ct. Op. at 12-14, Page ID##308-10.)
As discussed earlier in this opinion, the state-court's decision is entitled to deference unless it resulted in a determination that was contrary to or an unreasonable application of law or was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Moreover, a state court's determination of a factual issue is presumed to be correct, and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429.
The trial court correctly recognized that the determination of whether a plea is illusory must be based on the circumstances existing at the time the decision to plead guilty was made, not at a later time, when additional facts may have been discovered. Brady, 397 U.S. at 756. Both in the state courts and in this Court, Petitioner relied on two evidentiary sources for his argument that the dismissal of the CSC I charge was illusory: the prosecutor's statement at sentencing and a newspaper story.
At sentencing, the prosecutor stated that, "based on the statements of the victim, in speaking with him, I agree that Offense Variable 12 should be scored at zero points." (Pet'r's Br., docket #2, Page ID#28; S. Tr. at 5, docket #2-6, Page ID#277.) As the trial court held, the prosecutor's admission at sentencing does not demonstrate that the witness fully and unequivocally retracted his claim that Petitioner had digitally penetrated him, even a little. It also does not demonstrate the prosecutor's knowledge at the time of the plea hearing.
Further, the newspaper article about Petitioner's plea hearing quoted the prosecutor stating that "a guilty verdict on the 1st degree offense would not have been a sure thing," because the victim had "backed off" earlier statements to the police and because "[t]he penetration. . . was slight . . . He wasn't as certain about the penetration." (App. 7 to Pet'r's Br., docket #2-7, Page ID#295.) The comment quoted by the newspaper does not support a conclusion that dismissal of the charge was mandatory. It reveals only that the victim had made varying statements, and his testimony under oath may not have been sufficient to result in a conviction. Because the witness had not yet testified under oath, dismissal of the CSC I charge conferred a benefit on Petitioner — an elimination of the risks of the preliminary examination and trial. The plea agreement therefore was not illusory.
Plaintiff's next argument about the illusory nature of the plea — that his agreement to a guideline range for sentencing was valueless — also was thoroughly addressed by the trial court. The trial court rejected the claim for three reasons. First, by agreeing to accept the plea and the designated sentencing range, Petitioner avoided the risk of being convicted and sentenced to a much higher range on the CSC I charge. Second, by taking the prosecutor's offer to stipulate to the guidelines range, Petitioner avoided the risk that the court would ultimately find a higher applicable range, and he significantly reduced the risk that the court would depart from the range. Third, as trial counsel testified at the evidentiary hearing, a stipulated range was particularly desirable because, based on his experience, the trial judge was harsh in his sentences, and the plea would limit that harshness. (Cir. Ct. Op. at 14-16, Page ID##311-13.)
The trial court's findings were patently reasonable. By agreeing to plead guilty, Petitioner significantly reduced his risk of both a more serious conviction and a more substantial sentence. All of the benefits outlined by the trial court were supported by the records of the sentencing and the evidentiary hearings. Petitioner therefore is not entitled to relief on habeas review.
In light of the foregoing, the Court will summarily dismiss Petitioner's application pursuant to Rule 4 because it fails to raise a meritorious federal claim.
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This Court's dismissal of Petitioner's action under Rule 4 of the Rules Governing § 2254 Cases is a determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the Court has already determined that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is "somewhat anomalous" for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v. Comm'r of Corr. of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was "intrinsically contradictory" to grant a certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner's claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the certificate, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. "A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, the Court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of Petitioner's claims. Id.
The Court finds that reasonable jurists could not conclude that this Court's dismissal of Petitioner's claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate of appealability.
A Judgment and Order consistent with this Opinion will be entered.
