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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

BRANDON EDWARD GORECKI,

Petitioner,

v.

MARY BERGHUIS,

Respondent.

__________________________________/

Civil Action No. 10-cv-12429-BC
Honorable Thomas L. Ludington

OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS

CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

OR PERSMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Brandon Edward Gorecki is a state inmate incarcerated by the Michigan

Department of Corrections, currently housed at the Chippewa Correctional Facility in Kincheloe,

Michigan. He is serving a life sentence for first-degree murder. Along with his life sentence,

Petitioner also serves concurrent sentences of twenty to thirty years for torture and robbery, two to

five years for larceny, and one to four years for larceny in a building. His convictions followed a

jury trial in the Michigan Circuit Court of St. Clair County on February 2, 2007. He was sentenced

on February 28, 2007.

On June 21, 2010, Petitioner filed a habeas petition in this Court pursuant to 28 U.S.C. §

2254. The petition was filed through counsel, and it challenges the constitutionality of Petitioner’s

convictions. He raises a single claim concerning his Confrontation Clause rights. The Court

concludes that Petitioner’s convictions and sentences are constitutionally sound, and, for the reasons

set forth, denies the petition. The Court also declines to issue Petitioner a certificate of

appealability.

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I

Petitioner’s convictions resulted from an incident that occurred on May 31, 2006, which led

to the death of Maryann McNeeley. The prosecution’s theory was that Petitioner, aided by his half-

brother Ray Carp, killed McNeeley in her home and stole various items. The defense did not dispute

that Petitioner caused McNeeley’s death. Rather, the defense disputed whether the murder was

premeditated or committed in the course of a felony. Carp was tried separately and before

Petitioner’s trial. Petitioner, over his counsel’s advice, waived his Fifth Amendment privilege and

testified as a defense witness at Carp’s trial. Carp also was convicted and sentenced to life in prison.

Prior to trial, the prosecutor filed a motion with the trial court requesting the admission of

statements allegedly made by Carp, following the incident, to his girlfriend Kelly Smith.

Petitioner’s counsel objected on the basis that it was more likely than not that he would not have the

opportunity to cross-examine Carp because it was probable that Carp would not be testifying in

Petitioner’s trial. The trial court deferred ruling on the motion until it was determined whether Carp

would testify.

Subsequently, at the beginning of the trial, Carp was called to the stand, out of the presence

of the jury, and stated that, based on his counsel’s advice, he would assert his Fifth Amendment right

and refuse to testify if called as a witness.

Then, during trial, the prosecutor made an offer of proof, outside the presence of the jury,

concerning Smith’s proposed testimony. See Trial Tr. vol. II, 450–79, Jan. 31, 2007, ECF No. 5.

Smith testified that Carp told her that Petitioner stabbed McNeeley and that he was present. He said

he hit McNeeley in the head with a mug and handed the knife to Petitioner. On cross-examination,

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Smith acknowledged that Carp did not initially tell her what happened, but that it came out in “bits

and pieces.” Id. at 457. She admitted that she learned the information over time rather than in one

statement. She said Carp was worried that Petitioner was going to get arrested, and asked her not

to say anything.

Following Smith’s testimony, the parties made their respective arguments to the trial court

about whether her testimony concerning the statements would be admissible. The trial court ruled

that she would be permitted to testify as to all of the statements allegedly made to her by Carp.

Smith later testified to the same in the presence of the jury.

The primary evidence in Petitioner’s case came from the testimony of Shavaun Fink,

Petitioner’s girlfriend at the time of the incident, and from Petitioner’s own testimony at Carp’s trial.

Fink testified that, at the time of the incident, Petitioner was living with McNeeley. She was

at McNeeley’s house that night, with Petitioner, their infant daughter, Carp, and McNeeley. Twice

that night, she awoke and found Petitioner going through her purse. She believed he was trying to

get the keys to her car. They argued. She said that, at one point, Petitioner grabbed her by the neck.

McNeeley came out of her bedroom and tried to keep him away from her so she could leave. She

then took her daughter and left. She did not witness any violence between Petitioner and McNeeley

at that time.

Fink said she got a call from Petitioner later that night; he said he needed to talk. He was

at his mother’s house and asked her to come over. She complied. Once there, Petitioner told her

he had an argument with McNeeley, and that he thought he killed her. Fink said McNeeley’s truck

was at the house. Petitioner told Fink that he was going to drive to Detroit and asked if she would

follow

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him in her car so he would have a ride back. She agreed. However, when they got to Detroit, he

told her he was going to burn the truck. She then left him there.

On cross-examination, Fink acknowledged that Petitioner had been drinking on the night of

the incident but denied that he had a drinking problem. She acknowledged, however, that he had

a problem with the use of prescription drugs, and that he had an anger problem and was prone to

spontaneous bouts of anger, particularly when he was drinking or using drugs.

Fink also testified that she saw Petitioner interact with McNeeley that night, and

acknowledged that they were friends and rarely argued. She admitted that he called McNeeley his

aunt, even though they were not related. She never heard him say anything negative about her.

Fink further testified that, although Petitioner was going through her purse to get her car keys

on the night of the incident, she did not find anything missing. When he later told her that he

thought he might have killed McNeeley, she didn’t ask any questions. She admitted that they had

physically fought in the past and that he had stolen items out her purse and used her car without her

permission.

Petitioner’s friend, Amy Haglund, testified for the prosecution. Petitioner called her the

night of the incident and asked her to drive to Detroit to pick him up, but she was unable to comply.

He showed up at her house later and stayed with her the rest of the day. He then received a phone

call and, after the call, he told her that he was suspected of having killed McNeeley. She said he

appeared surprised to learn that McNeeley was dead. The police then came to her house and

arrested him.

Petitioner’s mother, Margaret Carp, also testified for the prosecution. She said that, about

a month prior to the incident, she kicked Petitioner out of her house. He then went to live with

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McNeeley; McNeeley thought she could help him with his problems. She testified that she received

a phone call from Petitioner on the day in question. He told her he had a fight with McNeeley and

may have hurt or killed her. She picked up McNeeley’s boyfriend and went to the house. Looking

through a window, they saw blood on the floor. They called the police.

On cross-examination, Ms. Carp said Petitioner knew McNeeley all of his life and referred

to her as “Aunt Maryann.” Trial Tr. vol. II, 342. She admitted he had drug and mental problems;

she had a hard time with him when he lived with her. She also knew he had anger-management

problems, and that McNeeley knew about those problems. McNeeley never told her she was having

problems with him.

Christian Yeatts, Ms. Carp’s boyfriend, testified that he saw Petitioner and Carp arrive at

their mother’s house early that morning. They drove in McNeeley’s truck. He testified that he also

went with Ms. Carp and McNeeley’s boyfriend to her house, which led to the discovery of her body.

The prosecution also presented testimony from several police officers concerning the

investigation of the case, as well as from a medical examiner concerning McNeeley’s cause of death.

The police entered the home after being called by Ms. Carp and Yeatts. They found

McNeeley’s body. It appeared to them that someone had tried to clean up the blood on the floor.

There were no signs of forced entry.

A serologist testified about the blood found at the scene. An arson expert testified about

McNeeley’s truck, which was found parked in Detroit and severely damaged by fire. The expert

concluded that the fire had been intentionally set.

The medical examiner testified that McNeeley died from numerous stab wounds and blunt-

force injuries. The doctor estimated that she received over fifty wounds. None of the stab wounds

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was to the chest. It was his opinion that McNeeley was alive and conscious during a portion of the

assault, because he found a number of defensive-type wounds to her hands and arms. The number

and nature of the wounds showed that the assault took place over several minutes.

At the close of the prosecution’s case, the agreed-to, redacted portions of the video-recorded

testimony from Petitioner at Carp’s trial were played for the jury. Trial Tr. vol. III 624-25, Feb. 1,

2007, ECF No. 5. Petitioner admitted that he was with Carp at McNeeley’s house on the night in

question. He denied any pre-existing plan to steal McNeeley’s truck or any other property. He

testified that Carp did not take any of the property from the home and did not take the keys to the

truck. He admitted that he drove the truck, with Carp, to their mother’s house. He told Carp to close

the drapes in the home during the incident and also told Carp to hit McNeeley with a mug.

According to Petitioner, Carp threw a mug at her but missed hitting her. Petitioner denied that Carp

held McNeeley down or handed him knives. He denied that Carp expressed an intent to harm

McNeeley. He further denied that Carp had anything to do with the arson of the truck.

On cross-examination at Carp’s trial, Petitioner admitted that he stabbed McNeeley

numerous times. Trial Tr. vol. II, 457. He said his memory of the incident was clouded because he

was under the influence of alcohol and Xanax. He admitted he struck McNeeley with at least one

mug. He denied going through Fink’s purse. He said he and Carp left McNeeley’s house after his

argument with Fink and returned later that night. He said he did not remember how the fight started.

He said McNeeley had a knife in her hand, and he took it away from her. He did not remember why

he asked Carp to close the drapes.

Petitioner testified that he had tried to clean up the blood in the home after the incident. He

said he got the keys to the truck from McNeeley’s room, drove it back to his mother’s house and

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then later to Detroit, where he set it on fire. He admitted taking the stereo and DVD player. He said

those items were still in the truck when he burned it. He could not explain why the police did not

find any evidence of them.

The defense did not present any evidence.

During closing arguments, Petitioner’s trial counsel acknowledged that Petitioner was

responsible for McNeeley’s death, but argued that her murder was not premeditated, that the theft

of the items occurred only after the homicide, and that there was no plan to steal anything or rob her

at the time of the homicide. He asked the jury to convict Petitioner on the lesser-included offense

of second-degree murder rather than on the charged offense of first-degree murder.

In his instructions to the jury, the trial judge instructed on the alternative theories of

premeditated and felony murder on the first-degree murder count and did give the jury the option

to convict Petitioner on the lesser-included offense of second-degree murder.

The jury convicted Petitioner of first-degree murder. He was sentenced as described.

Following his sentencing, Petitioner filed a direct appeal with the Michigan Court of

Appeals, raising the same claim raised in this habeas petition. The Court of Appeals affirmed his

convictions and sentences. People v. Gorecki, No. 277448, 2008 WL 4604396, at *1, *3 (Mich. Ct.

App. Oct. 2, 2008) (unpublished). Petitioner subsequently filed an application for leave to appeal

with the Michigan Supreme Court. On March 23, 2009, the Michigan Supreme Court denied the

application. People v. Gorecki, 762 N.W.2d 485 (2009) (unpublished table decision).

Petitioner neither filed a post-conviction motion with the state trial court nor a petition for

a writ of certiorari with the United States Supreme Court. Rather, he filed this habeas petition,

raising the same claim raised in both state appellate courts.

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II

A

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

which govern this case, “circumscribe[d]” the standard of review federal courts must apply when

considering an application for a writ of habeas corpus raising constitutional claims, including claims

of ineffective assistance of counsel. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). As amended,

section 2254(d) permits a federal court to issue the writ only if the state-court decision on a federal

issue “was contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court,” or it amounted to “an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d) (1)–(2);

Franklin v. Francis, 144 F.3d 429, 433 (6th Cir. 1998). Under that review standard, mere error by

the state court does not justify issuance of the writ; rather, “the state court’s [application of federal

law must have been] objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000).

The Supreme Court has explained the proper application of the “contrary to” clause as

follows:

A state-court decision will certainly be contrary to [the Supreme Court’s] clearly
established precedent if the state court applies a rule that contradicts the governing
law set forth in our cases.

* * *

A state-court decision will also be contrary to this Court’s clearly established
precedent if the state court confronts a set of facts that are materially
indistinguishable from a decision of this Court and nevertheless arrives at a result
different from [the Court’s] precedent.

Williams, 529 U.S. at 405–06.

The Supreme Court has held that a federal court should analyze a claim for habeas-corpus

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relief under the “unreasonable application” clause of section 2254(d)(1) “when a state-court decision

unreasonably applies the law of this Court to the facts of a prisoner’s case.” Id. at 409. The

Supreme Court has explained that an unreasonable application of federal law is different from an

incorrect application of federal law. Under that language, “a federal habeas court may grant the writ

if the state court identifies the correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413.

The Supreme Court has continued to emphasize the limited nature of this review. In

Harrington v. Richter, 131 S. Ct. 770 (2011), the Supreme Court reiterated that the AEDPA requires

federal habeas courts to review state-court decisions with “deference and latitude,” and “[a] state

court’s determination that a claim lacks merit precludes habeas relief so long as ‘fairminded jurists

could disagree’ on the correctness of the state court’s decision.” Id. at 785–86 (quoting Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)).

Additionally, this Court must presume that the state court’s factual determinations are

correct. 28 U.S.C. § 2254(e)(1) (a determination of a factual issue made by a state court shall be

presumed to be correct); see also West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (citation omitted)

(finding that the court gives complete deference to state court findings of historical fact unless they

are clearly erroneous). A petitioner may rebut this presumption only with clear and convincing

evidence. Warren v. Smith, 161 F.3d 358, 360–61 (6th Cir. 1998). Further, habeas review is

“limited to the record that was before the state court.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398

(2011).



B

In his only habeas claim, Petitioner argues that his Confrontation Clause rights were violated

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when the trial court admitted Carp’s out-of-court statements to Smith. Carp did not testify at his

trial. Petitioner cites to the following cases for support: Williamson v. United States, 512 U.S. 594

(1994) (the fact that a statement is genuinely self-inculpatory is itself one of the particularized

guarantees of trustworthiness that makes a statement admissible under the Confrontation Clause);

Lilly v. Virginia, 527 U.S. 116 (1999) ( the admission of statements covered by an exception to the

hearsay rule does not violate the Confrontation Clause if they contain particularized guarantees of

trustworthiness); Bruton v. United States, 391 U.S. 123 (1968) (using the confession of a defendant

in a joint trial violated the Confrontation Clause); and Vincent v. Seabold, 226 F.3d 681 (6th Cir.

2000) (holding that admission of non-testifying former co-defendant’s hearsay statements violated

the Confrontation Clause).

First, to the extent Petitioner argues that Carp’s statements to Smith were improperly

admitted under Michigan’s rules of evidence, as statements against penal interest, his claim is

noncognizable. It is well-established that “federal[-]habeas corpus relief does not lie for errors of

state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Long v. Smith, 663 F.2d 22, 23 (6th Cir.

1981). The Court may only grant relief if Petitioner is able to show that the state court’s evidentiary

ruling was in conflict with a decision reached by the Supreme Court on a question of law or if the

state court decided the evidentiary issue differently than the Supreme Court did on a set of materially

undistinguishable facts. Sanders v. Freeman, 221 F.3d 846, 860 (6th Cir. 2000). Petitioner has not

met that difficult standard. Therefore, his claim that the trial court violated Michigan’s rules of

evidence is not cognizable on federal-habeas review.

Second, Petitioner’s claim that his Confrontation Clause rights were violated lacks merit.

The Confrontation Clause of the Sixth Amendment provides: “[i]n all criminal prosecutions, the

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accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.

amend. VI. The Confrontation Clause and the hearsay rule are not coextensive. Dutton v. Evans,

400 U.S. 74 (1970). Thus, evidence may violate the hearsay rule without violating the Confrontation

Clause.

In Crawford v. Washington, 541 U.S. 36, 68 (2004), the Supreme Court held that

out-of-court statements that are testimonial in nature are barred by the Confrontation Clause unless

the witness is unavailable and the defendant had a prior opportunity for cross-examination regardless

of whether the trial court finds the statements to be reliable. The Confrontation Clause is not

implicated, however, when the hearsay at issue is non-testimonial. See Davis v. Washington, 547

U.S. 813, 823-26 (2006). The proper inquiry in deciding whether a statement is testimonial is

“whether a reasonable person in the declarant’s position would anticipate his statement being used

against the accused in investigating and prosecuting the crime.” Untied States v. Cromer, 389 F.3d

662, 675 (6th Cir. 2005). Testimonial statements do not include remarks made to family members

or acquaintances, business records, or statements made in furtherance of a conspiracy. Crawford,

541 U.S. at 51–52, 56.

Thus, whether the Confrontation Clause is implicated in this case turns on whether Carp’s

out-of-court statements to Smith were testimonial. The Court finds that Carp’s statements to Smith

cannot be considered testimonial under Crawford. Rather, Carp’s hearsay statements were made

informally, out of court or custody, to an acquaintance and not police officers, under circumstances

where a person in his position would not objectively foresee that his statements might be used in the

investigation or prosecution of a crime.

Indeed, Carp initiated contact with Smith. Smith did not seek to elicit statements to further

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prosecution. There was no interrogation. Smith testified that Carp spoke in narrative form without

any questions from her. Thus, his statements were voluntarily made and non-testimonial. And,

because Carp’s statements are non-testimonial under Crawford, they do not implicate the

Confrontation Clause. Davis, 547 U.S. at 821.

The Michigan Court of Appeals’s legal analysis on this issues was constitutionally sound.

The Court of Appeals stated:

Defendant argues that the admission of the non-testifying accomplice’s
(Carp) statements violated his confrontation rights as espoused in Lilly v. Virginia,
[] and Williamson v. United States, []. We conclude, however, that this case is
resolved by application of precedent from this Court and our Supreme Court.

* * *

[W]hether

the statement was

(2) made
contemporaneously with the events referenced, (3) made to family, friends,
colleagues, or confederates-that is, to someone to whom the declarant would literally
speak the truth, and (4) uttered spontaneously at the initiation of the declarant and
without prompting or inquiry by the listener.

(1) voluntarily given,

On the other hand, the presence of the following factors would favor a
finding of inadmissibility: whether the statement (1) was made to law enforcement
officers or at the prompting or inquiry of the listener, (2) minimizes the role or
responsibility of the declarant or shifts blame to the accomplice, (3) was made to
avenge the declarant or to curry favor, and (4) whether the declarant had a motive to
lie or distort the truth.

* * *

In considering the above factors relative to the totality of the conversation
between Carp and his girlfriend, the trial court correctly concluded that the testimony
was admissible as Carp was undisputedly unavailable to testify, and his statements
meet all of the factors in favor of admissibility. Carp volunteered the information to
his girlfriend within days of the murder. His girlfriend is someone that Carp would
be expected to be truthful with when imparting this type of information. There is no
evidence that Carp’s girlfriend prompted the statements. Indeed, she testified that
she did not ask questions but simply listened to Carp as he recalled the events of the
incident. There is no evidence that Carp had a motive to lie at this point.
Furthermore, Carp’s
the “pinky swear” rule-albeit a bit

invocation of

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juvenile-evidences that he was telling the truth and not expecting this information to
be used in a court of law or elsewhere. Thus, the statements were properly admitted
and did not violate defendant’s confrontation rights.

Defendant argues that Williamson, Dorchy v. Jones, [], and Vincent v.
Seabold, [], are controlling in this case. However, Williamson did not address a
federal constitutional question, as it remanded the matter before it based on its
interpretation of the Federal Rules of Evidence (FRE 804(b)(3)), Williamson, supra
at 600-601, 604, and thus provides no authority for defendant’s constitutional
argument in the matter before us. Our Court in Beasley squarely addressed and
rejected the precise argument made by defendant here, i.e., that Williamson and Lilly
apply, rather than Poole. Furthermore, Vincent and Dorchy are distinguishable from
the case at bar as Vincent involved the exclusion of testimonial co-defendant
statements that were made to police officers, [], while Dorchy involved testimonial
statements that were made at the prompting of an attorney during a direct
examination at a previous trial that shifted the blame from the declarant to the
defendant in the case at bar, []. Here, defendant has not argued that Carp’s
statements were testimonial. Additionally, the statements in Vincent and Dorchy
involved statements that lacked an indicia of reliability, []. Hence, they are not
controlling in this case.

Gorecki, 2008 WL 4604396, at *1–*2 (some citations and footnote omitted).

The Court finds that the Court of Appeals’s decision is not contrary to, or an unreasonable

application of, Crawford. Petitioner has failed to meet his burden and habeas relief is not warranted.

Further, even if the Court were to find that the non-testimonial statements were admitted

erroneously, the Court would find that the error was harmless. A Confrontation Clause error is

subject to harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). The

standard for showing harmless error on collateral review is “considerably less favorable” to a habeas

petitioner than the standard which is applied on direct review. On direct review, before a federal-

constitutional error can be held harmless, the court must be able to declare that the error was

harmless beyond a reasonable doubt. However, the harmless-error test for collateral review is

different. A federal court can grant habeas relief only if the trial error had a substantial and injurious

effect or influence upon the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Under

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this standard, a habeas petitioner is not entitled to habeas relief unless he or she can establish that

the trial error resulted in “actual prejudice.” Id. Thus, a federal-habeas court can grant habeas relief

only if a habeas petitioner carries the burden of showing that a Confrontation Clause error had a

substantial and injurious effect or influence on the jury’s verdict. Bulls v. Jones, 274 F.3d 329, 335

(6th Cir. 2001).

The record in this case reveals the following. Petitioner admitted to stabbing McNeeley in

the neck. See Trial Tr. vol. III, 626. He admitted to hitting her in the head. Id. at 628. He admitted

he had to order Carp to throw the mug at her more than two times. Id. at 622. He also admitted that

he tried to clean up the blood and broken glass with a broom. Id. at 651–53. Thus, there is enough

evidence, outside of Smith’s testimony, to support the jury’s conviction. Any error in admitting the

statements was harmless.

C

Before Petitioner may appeal this Court’s dispositive decision, a certificate of appealability

must issue. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). 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). When a court rejects a habeas claim on the merits, the substantial showing

threshold is met if the petitioner demonstrates that reasonable jurists would find the district court’s

assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473,

484–85 (2000). “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 that standard, a district court may not conduct a

full merits review, but must limit its examination to a threshold inquiry into the underlying merit of

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Petitioner’s claims. Id. at 336–37. Petitioner has not made a substantial showing of the denial of

a constitutional right, and thus, a certificate of appealability is not warranted. Further, leave to

proceed in forma pauperis on appeal is denied as any appeal cannot be taken in good faith. See Fed.

R. App. P. 24(a).

III

Accordingly, it is ORDERED that the petition for writ of habeas corpus, ECF No.

1, is DENIED.

It is further ORDERED that the Court DECLINES to issue a certificate of

appealability.

It is further ORDERED that the Court DECLINES to grant Petitioner in forma

pauperis status on appeal.

Dated: July 30, 2013

s/Thomas L. Ludington
THOMAS L. LUDINGTON
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 July 30, 2013.

s/Tracy A. Jacobs
TRACY A. JACOBS

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