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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN COTTER LAMPING,

Petitioner,

Case No. 12-11805

v.

HONORABLE STEPHEN J. MURPHY, III

STATE OF MICHIGAN,

Respondent.

_________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF

HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE

OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

John Cotter Lamping, presently residing in Fraser, Michigan, seeks a writ of habeas

corpus pursuant to 28 U.S.C. § 2254.1 In his pro se application, petitioner challenges his

conviction for assault with intent to do great bodily harm less than murder, Mich. Comp.

Laws § 750.84; felonious assault, Mich. Comp. Laws § 750.82; and failure to stop at the

scene of an accident, Mich. Comp. Laws § 257.617. For the reasons stated below, the

Court will deny the application for writ of habeas corpus.

1 The Michigan Department of Corrections’ Offender Tracking Information
System (OTIS), of which this Court is permitted to take judicial notice, see Ward v.
Wolfenbarger, 323 F. Supp. 2d 818, 821, n.3 (E.D. Mich. 2004), indicates that Lamping
was discharged from his sentence on April 13, 2013 and is no longer in custody.
Sections 2241(c)(3) and 2254(a) require that a habeas petitioner be “in custody” under
the conviction or sentence under attack at the time that a habeas petition is filed in the
federal court. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Because Mr. Lamping
was still serving his sentence at the time he filed his petition, he satisfies this “in
custody” requirement, in spite of his subsequent discharge. Once federal jurisdiction
has attached to a habeas petition in federal district court, “it is not defeated by the
release of the petitioner prior to completion of proceedings” on his or her habeas
application. Carafas v. LaVallee, 391 U.S. 234, 238 (1968).

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BACKGROUND

Lamping was convicted of the relevant charges following a jury trial in the Macomb

County Circuit Court.

Stephanie Turskey picked up her boyfriend, Timothy Moore, on March 9, at his

Clinton Township, Michigan home. Tr. 6/10/09, pp. 4-5, 11, 107-08. Turskey and Moore

were heading to a nearby fitness center when they noticed that they were being tailgated

by a person, who they later identified as Lamping, driving a small black car. Id. at pp. 7,

108-10. Turskey described him as a “white Caucasian with dark hair” and stated that he

was making “gestures” at her. Id. at pp. 7-8. Turskey and Moore both testified that Lamping

was throwing his arms up in the air and holding up his middle finger. Id. at pp. 7-8, 110-11.

They gestured back even though Turskey was afraid. Id. at pp. 8, 76, 111.

Turskey eventually turned into the fitness center’s parking lot and pulled into a

parking spot. Id. at 9-10, 111-14. Lamping drove past the fitness center’s parking lot, before

slamming on the brakes, screeching to a halt, shifting into reverse, and driving into the

parking lot. Lamping parked his car so that the front of it faced Turskey’s car. He began

yelling at Turskey and Moore and made more gestures at them. Id. at 10-11, 112-15.

Turskey was afraid to exit her vehicle. Moore told Turskey that he would walk over

to her side of the car and they could go into the fitness center together. Moore got out of

the car. Moore and Lamping began arguing with one another. Turskey heard Lamping state

that he was going to hit Moore with his car. Id. at pp. 11-14, 115-16.

Moore began walking over to Turskey’s side of the car. When Moore reached the

rear passenger side of the car, Lamping's car “came at him,” hitting Moore and crushing

his right leg between the two vehicles. Id. at p. 15. Lamping then put the car into reverse

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and drove out of the parking lot, heading northbound. Turskey noticed another car that was

in the parking lot at the time follow after Lamping’s vehicle. Turskey called 911 to report

that Moore had been hit by a car. Turskey then went to assist Moore, who was lying on the

ground screaming with what appeared to be a compound leg fracture. Both Moore’s tibia

and fibula were broken. Id. at pp. 15-18, 116-19; Tr. 6/11/09, p. 9.

Joel Thompson was in the fitness parking lot and witnessed the assault. Thompson

followed Lamping’s vehicle, which was a black Eagle Talon, out of the fitness center

parking lot, as it fled the scene. Tr. 6/10/09, pp. 164-73. After Lamping turned onto another

road, Thompson followed, but had to accelerate to speeds of up to 80 mph in order to catch

up to the vehicle. Thompson indicated that the Talon ran through two red lights and then

turned in another direction. Thompson stopped following the vehicle at this point because

he had already written the license plate number down on a receipt that he had with him. Id.

at pp. 175-77.

Thompson returned to the fitness center parking lot and gave a police officer who

was on the scene a description of the driver of the car as well as the license plate number

of the vehicle. Tr. 6/10/09, p. 179; Tr. 6/11/09, pp. 7-8, 22, 27. A second police officer at

the scene ran the license plate number and determined the vehicle was registered to John

Lamping. Thompson was shown a photograph of Lamping from the policeman’s vehicle’s

computer and he identified Lamping as the driver of the black Eagle Talon. Tr. 6/10/09, pp.

179-80, Tr. 6/11/09, pp. 28-31. Turskey likewise positively identified Lamping after seeing

his photograph on the police vehicle’s computer. Tr. 6/10/09, p. 21, Tr. 6/11/09, pp. 28-31.

Lamping’s car was registered to his address in Fraser, Michigan. Police officers from

the Fraser Police Department went to that address and found the Talon parked outside,

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behind the residence. Tr. 6/11/09, pp. 30-31. The hood of the car was still warm. An officer

knocked on the front door and received no response. Officers saw a window shade move,

and it appeared that someone was looking out the window. Id. at pp. 33-34. The officers

impounded the vehicle. Id. at 34-37.

Lamping was convicted and sentenced to two to ten years’ imprisonment for assault

with intent to do great bodily harm; two to four years’ imprisonment for felonious assault;

and two to five years’ imprisonment for failure to stop at the scene of an accident.

Lamping’s conviction was affirmed on appeal. People v. Lamping, No. 293538, 2010 WL

4628689 (Mich. Ct. App. Nov. 16, 2010), lv. den. 489 Mich. 899 (2011).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. [The] Clinton Township Police used a leading and suggestive identification
technique by showing a single photograph on a police car computer screen
and asking a witness “is this the guy?”

II. [The] Clinton Township Police were allowed to [effect] an unconstitutional
seizure of a suspect vehicle.

III. The prosecutor engaged in vindictive prosecution by raising the indictment
from one felony to four after defendant would not plead to the first charge.

IV. The sentencing based on “permanent incapacitating injury” was in error.

STANDARD OF REVIEW

Section 2254(d) of Title 28, United States Code, imposes the following standard of

review for habeas cases:

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

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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 proceedings.

28 U.S.C. § 2254(d). This court must presume the correctness of state court factual

determinations. 28 U.S.C. § 2254(e)(1).

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 (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. Rather, that application must also be unreasonable." Id. at 411.

A.

Claim 1: Suggestive Identification

DISCUSSION

Lamping first alleges that the trial court erred in refusing to suppress the on-scene

and in-court identifications made of petitioner by Turskey and Thompson because of an

unduly suggestive photographic identification procedure. Specifically Lamping argues that

the Clinton Township Police used a “leading and suggestive identification technique” when

the officer showed Thompson and Turskey a photograph of Lamping on the police

computer, asking “is this the guy?”

Due process protects the accused against the introduction of evidence from an

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unreliable identification obtained through unnecessarily suggestive procedures. Moore v.

Illinois, 434 U.S. 220, 227 (1977). To determine whether an identification procedure violates

due process, courts look first to whether the procedure was impermissibly suggestive; if it

was, courts then determine whether, under the totality of circumstances, the

suggestiveness has led to a substantial likelihood of an irreparable misidentification. See

Gross v. Warden, Lebanon Correctional Inst., 426 F. App’x 349, 362 (6th Cir. 2011). Five

factors should be considered in determining the reliability of identification evidence:

1. the witness’s opportunity to view the criminal at the time of the crime;
2. the witness’s degree of attention at the time of the crime;
3. the accuracy of the witness’s prior description of the defendant;
4. the witness’s level of certainty when identifying the suspect at the
confrontation; and,
5. the length of time that has elapsed between the time and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972); Gross, 426 F. App’x at 362.

A criminal defendant has the initial burden of proving that the identification procedure

was impermissibly suggestive; it is only after a defendant meets this burden of proof that

the burden then shifts to the prosecutor to prove that the identification was reliable

independent of the suggestive identification procedure. See Johnson v. Warren, 344 F.

Supp. 2d 1081, 1090 (E.D. Mich. 2004) (citing English v. Cody, 241 F. 3d 1279, 1282-83

(10th Cir. 2001) (citing United States v. Wade, 388 U.S. 218, 240, n. 31 (1967)). If a

defendant fails to show that the identification procedures are impermissibly suggestive, or

if the totality of the circumstances indicate that the identification is otherwise reliable, no

due process violation has occurred. So long as there is not a substantial likelihood of

misidentification, it is for the jury or factfinder to determine the ultimate weight to be given

to the identification. See United States v. Hill, 967 F. 2d 226, 230 (6th Cir. 1992).

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Lamping has failed to show that the police engaged in an improper identification

procedure in this case because when the officer showed the witnesses Lamping's

photograph it was analogous to an on-scene showup. The Sixth Circuit has “repeatedly

held that prompt certain, on-the-scene show ups are not unnecessarily suggestive.” U.S.

v. Akins, No. 08-20397, 2010 WL 6840997, at *4 (W.D. Tenn. Dec. 17, 2010); see, e.g.,

Stidham v. Wingo, 482 F.2d 817, 818-19 (6th Cir. 1973) (finding show-up at the scene of

the arrest permissible under the Fourth Amendment); U.S. v. Craig, 198 F. App’x 459, 467

(6th Cir. 2006) (show-up identification of bank robbers twenty minutes after arrest was not

unduly suggestive); Bruner v. Perini, 875 F.2d 531, 535 (6th Cir. 1989) (witness’s on-scene

identification of robber within thirty minutes of crime was not unduly suggestive). In fact, the

Craig court observed that “prompt, on-the-scene confrontation is consistent with good

police work,” because it enables officers to quickly exclude innocent suspects and “resume

the search for the fleeing suspect while the trail is still fresh.” Id. (citations omitted). Here,

the police were justified in showing Lamping's photographs to the witnesses because a

serious felony had just occurred, and the suspect was still at large and may have been still

driving the car that he had just used to assault Moore.

Moreover, the witnesses’ in-court identification of Lamping as the perpetrator of the

assault was sufficiently reliable to be admissible, notwithstanding the on-scene show-up

procedure. The witnesses gave reasonably accurate descriptions of the perpetrator to the

police, showed no uncertainty in identifying Lamping, and the show-up took place within

minutes of the assault. See Bruner, 875 F. 2d at 535 (robbery victim’s in-court identification

of defendant as robber was sufficiently reliable to be admissible, notwithstanding police

officers’ exhibition of defendant to victim shortly after robbery, where victim had close,

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face-to-face encounter with robber, her attention was focused, she gave reasonably

accurate description of robber to police, she showed no uncertainty in making the

identification after the robbery, and the identification took place only about 30 minutes after

the robbery).

Accordingly, the state court's decision regarding the admissibility of the identification

evidence was neither contrary to, nor an unreasonable application of clearly established

federal law. Lamping is not entitled to habeas relief on his first claim.

B.

Claim 2: Illegal search and seizure

Lamping next claims that the trial court erred in denying his motion to suppress any

evidence from the allegedly illegal seizure of his car.

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 exist, the state

must provide, in the abstract, a mechanism by which the petitioner can raise the claim, and

presentation of the claim must not be frustrated by a failure of that mechanism. Riley v.

Gray, 674 F. 2d 522, 526 (6th Cir. 1982). The relevant inquiry is whether the 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 grounds, 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). “The courts that have considered the matter ‘have consistently

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held that an erroneous determination of a habeas petitioner’s Fourth Amendment claim

does not overcome the Stone v. Powell bar.’” Id. (quoting Gilmore v. Marks, 799 F.2d 51,

57 (3rd Cir. 1986)). Thus, an argument by a habeas petitioner that is “directed solely at the

correctness of the state court decision[on a Fourth Amendment claim] ‘goes not to the

fullness and fairness of his opportunity to litigate the claim[s], but to the correctness of the

state court resolution, an issue which Stone v. Powell makes irrelevant.’” Brown, 638 F.

Supp. 2d at 812-13 (quoting Siripongs v. Calderon, 35 F. 3d 1308, 1321 (9th Cir. 1994)).

In light of the foregoing, Lamping's Fourth Amendment claim is not reviewable. He

raised the factual basis for the claim in the state trial and appellate courts and the state

courts thoroughly analyzed the facts and applied the proper constitutional law in rejecting

his claim. Machacek, 213 F. 3d at 952. Because Lamping "received all the process he was

due," Stone bars this Court's review of the claim and Lamping is not entitled to habeas

relief. Id.; Brown, 638 F. Supp. 2d at 813.

C.

Claim 3: Prosecutorial Vindictiveness

Lamping next contends that the prosecutor engaged in vindictive conduct when he

filed additional charges of assault with intent to do great bodily harm less than murder,

felonious driving, and failure to stop at the scene of an accident when Lamping refused to

plead guilty to the original charge of felonious assault.2

It is “ ‘patently unconstitutional’ ” for a prosecutor to pursue a course of action whose

objective is to penalize a criminal defendant’s reliance on his protected statutory or

constitutional rights. See United States v. Goodwin, 457 U.S. 368, 372, n.4 (1982) (quoting

2The prosecutor dismissed the felonious driving charge prior to trial.

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Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)). “A prosecutor vindictively prosecutes

a person when he or she acts to deter the exercise of a protected right by the person

prosecuted.” United States v. Anderson, 923 F.2d 450, 453 (6th Cir.1991). Therefore, “a

criminal prosecution which would not have been initiated but for vindictiveness is

constitutionally prohibited.” Bragan v. Poindexter, 249 F.3d 476, 481 (6th Cir. 2001) (citing

United States v. Adams, 870 F. 2d 1140, 1145 (6th Cir.1989) (quoting Blackledge v. Perry,

417 U.S. 21, 27-28 (1974)).

A criminal defendant may prove prosecutorial vindictiveness in one of two ways.

First, a defendant may demonstrate “actual vindictiveness,” by establishing “through

objective evidence that a prosecutor acted in order to punish the defendant for standing on

his legal rights.” Bragan, 249 F. 3d at 481 (citing United States v. Meyer, 810 F.2d 1242,

1245 (D.C. Cir. 1987) (citing Goodwin, 457 U.S. at 380-81, 384 & n.19)). This type of

showing, however, is “exceedingly difficult to make.” Id. (quoting Meyer, 810 F. 2d at 1245).

Second, a defendant may show that in his particular case, there existed a “‘realistic

likelihood of vindictiveness’” for the prosecutor’s action. Bragan, 249 F. 3d at 481 (quoting

United States v. Andrews, 633 F. 2d 449, 453 (6th Cir. 1980)). “A court may only presume

an improper vindictive motive when a reasonable likelihood of vindictiveness exists.” Id.

(citing Goodwin, 457 U.S. at 373). A petitioner must show that (1) the prosecutor had

“some ‘stake’” in deterring the petitioner’s exercise of his rights and (2) that the prosecutor’s

conduct was somehow “unreasonable.” Id. at 482.

Lamping has failed to show that he was the victim of prosecutorial vindictiveness.

After his arrest, Lamping and the prosecution entered into an agreement whereby Lamping

would be charged only with felonious assault, in exchange for his agreement to plead guilty

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to that claim. When Lamping, despite the agreement, subsequently refused to plead guilty

to felonious assault, the prosecution brought the additional charges of assault with intent

to do great bodily harm and failure to stop at the scene of an accident. The district court

then bound Lamping over to the circuit court on all counts.

In Bordenkircher v. Hayes, the Supreme Court held that the Due Process Clause of

the Fourteenth Amendment does not prohibit a prosecutor from carrying out a threat, made

during plea negotiations, to bring additional charges against a criminal defendant who

refuses to plead guilty to the offense or offenses for which he was originally charged. 434

U.S. 363. The Supreme Court ruled that in a plea bargaining situation, “there is no such

element of punishment or retaliation as long as the accused is free to accept or reject the

prosecutor’s offer.” Id. In United States v. Goodwin, supra, the Supreme Court commented:

[T]he outcome in Bordenkircher was mandated by this Court’s acceptance
of plea negotiation as a legitimate process. In declining to apply a
presumption of vindictiveness, the Court recognized that “additional” charges
obtained by a prosecutor could not necessarily be characterized as an
impermissible “penalty.” Since charges brought in an original indictment may
be abandoned by the prosecutor in the course of plea negotiation-in often
what is clearly a “benefit” to the defendant-changes in the charging decision
that occur in the context of plea negotiation are an inaccurate measure of
improper prosecutorial “vindictiveness." An initial indictment-from which the
prosecutor embarks on a course of plea negotiation-does not necessarily
define the extent of the legitimate interest in prosecution. For just as a
prosecutor may forgo legitimate charges already brought in an effort to save
the time and expense of trial, a prosecutor may file additional charges if an
initial expectation that a defendant would plead guilty to lesser charges
proves unfounded.

Goodwin, 457 U.S. at 378-80.

Consistent with Bordenkircher and Goodwin, the Sixth Circuit has repeatedly held

that the pretrial addition of criminal charges against a defendant after he refuses to plead

guilty does not amount to vindictive prosecution. See U.S. v. DeJohn, 368 F. 3d 533, 545

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(6th Cir. 2004); United States v. Walls, 293 F.3d 959, 970 (6th Cir. 2002); United States v.

Suarez, 263 F.3d 468, 479-80 (6th Cir. 2001); Andrews, 633 F. 2d at 456. Indeed, a

prosecutor may hold some criminal charges against a defendant in abeyance as an

inducement during plea bargain negotiations, without being vindictive, so long as the

additional charges are supported by probable cause. See Suarez, 263 F. 3d at 480.

Accordingly, in the present case, the prosecutor did not act improperly by charging

Lamping with additional criminal offenses after he declined to plead guilty to felonious

assault. Lamping has therefore failed to show that the state court decision rejecting his

prosecutorial-vindictiveness argument was contrary to or an unreasonable application of

clearly established federal law. Lamping is not entitled to habeas relief on this claim.

D.

Claim 4: Sentencing Guidelines

Finally, Lamping claims that the trial court improperly scored his sentencing

guidelines range under the Michigan Sentencing Guidelines. This claim is not cognizable

on federal habeas review. See Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 2007);

Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003); Whitfield v. Martin, 157 F. Supp. 2d

758, 762 (E.D. Mich. 2001). He has “no state-created interest in having the Michigan

Sentencing Guidelines applied rigidly in determining his sentence,” see Mitchell v.

Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009), and “no federal constitutional right

to be sentenced within Michigan’s guideline minimum sentence recommendations.” Doyle

v. Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich. 2004). Lamping’s claim that the state trial

court improperly departed above the correct sentencing guidelines range therefore does

not entitle him to habeas relief. See Austin v. Jackson, 213 F. 3d 298, 301 (6th Cir. 2000).

In sum, none of Lamping’s claims warrant the relief he seeks.

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CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253, before a petitioner may appeal a decision of this

Court, the Court must determine if petitioner is entitled to a Certificate of Appealability

("COA"). 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). The Court must either issue a

COA 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). A COA may be

issued “only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). The substantial showing threshold is satisfied when a

petitioner demonstrates “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.’” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4

(1983)).

In applying the above 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 the

petitioner's claims. Miller-El v. Cockrell, 537 U.S. at 336-37. “When a habeas applicant

seeks permission to initiate appellate review of the dismissal of his petition,” a federal court

should “limit its examination to a threshold inquiry into the underlying merit of his claims.”

Id. at 323. 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; see also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich.

2010).

After conducting the required inquiry, and for the reasons stated in the order above,

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the Court finds that Lamping has not made a substantial showing of the denial of a

constitutional right with respect to his claims. See 28 U.S.C. § 2253(c)(2). Petitioner should

not receive any encouragement to proceed further. Slack, 529 U.S. at 484. Because the

Court can discern no good faith basis for an appeal, see Miller-El, 537 U.S. at 338, any

appeal would be frivolous. The Court will therefore deny a certificate of appealability. See

Long v. Stovall, 450 F. Supp. 2d 746, 755 (E.D. Mich. 2006). The Court will also deny

petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. See

Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich. 1999).



ORDER

WHEREFORE it is hereby 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.

SO ORDERED.

Dated: July 31, 2013

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge

I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on July 31, 2013, by electronic and/or ordinary mail.



Carol Cohron
Case Manager

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