Harden v. Tanner

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERMAINE JEHVON HARDEN,
Petitioner, 	Case No. 2:23-cv-12743
v. 	Hon. Brandy R. McMillion
United States District Judge
JEFF TANNER,
Respondent.
__________________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY,
AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Before the Court is Petitioner Jermaine Harden’s (“Harden”) pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 	See ECF No. 1. Harden
challenges his conviction for first-degree criminal sexual conduct under M ICH.
COMP. L AWS § 750.520b and M ICH. COMP. L AWS § 769.10 for (1) a violation of his
constitutional right to a fair trial, (2) a denial of his due process rights resulting from
the ineffective assistance of counsel, and (3) insufficient evidence to sustain his
convictions. For the reasons that follow, the Court DENIES the petition for a writ
of habeas corpus.
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I.
In 2017, Harden was convicted following a jury trial in the Wayne County
Circuit Court. The relevant facts of this case are best summarized and relied upon
by the Michigan Court of Appeals1:
This case arises from a gang rape that occurred in 1997. The
victim, then a 13-year-old girl, was walking home from school when
she was abducted from the street by a man she did not know, dragged
into an apartment building, and taken to a second-floor bedroom against
her will. There, four to five men raped her. None of the men in the room
spoke to the victim, but they worked together to hold her arms and legs
down on the bed while each took turns raping her. She was later taken
to a nearby trailer where another man raped her. Later, a sexual assault
examination was performed, and a condom was found inside of the
victim’s vaginal canal and secured as evidence in a sexual assault kit.
However, the kit was not examined by the Detroit Police Department
until 2009. DNA testing was performed, and DNA found on the
condom matched Harden’s DNA. He subsequently was charged with
first-degree CSC. At trial, the victim identified Harden as one of the
men in the bedroom who raped her.
People v. Harden, No. 342992, 2020 WL 1285363, at *1 (Mich. Ct. App. Mar.
17, 2020). 	The Michigan Supreme Court affirmed the conviction. 	See People v.
Harden, 507 Mich. 868, 953 N.W.2d 402 (2021). Harden then proceeded to file a
post-conviction motion for relief from judgment, which was denied by all levels in
the state judiciary. People v. Harden, No. 17-008535-01-FC (Wayne Cnty. Cir. Ct.,
Feb. 16, 2022) (ECF No. 11-13); reconsideration den., No. 17-008535-01-FC
1 The facts are presumed correct on habus review pursuant to 28 U.S.C. 2254(e)(1). See Wagner
v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).
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(Wayne Cty. Cir. Ct., Apr. 19, 2022) (ECF No. 11-14); People v. Harden, No.
361849 (Mich. Ct. App. Nov. 1, 2022); 988 N.W.2d 763 (Mich. 2023).
Harden now seeks a writ of habeas corpus. 	ECF No. 1. 	This case was
originally assigned to the Honorable Jonathan J. C. Grey, then reassigned to the
undersigned. See Administrative Order 24-AO-007. Harden request that this Court
find that his conviction and sentence is in violation of his federal constitutional
rights. ECF No. 1, PageID.15.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs writ of habeas corpus petitions only for claims that were adjudicated on the
merits in state court proceedings. 	See Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir.
2014); 28 U.S.C. § 2254. Under the AEDPA, courts shall not grant a writ of habeas
corpus unless the adjudication of the claim either “(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 on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Tolliver v. Sheets, 594 F.3d 900,
915-16 (6th Cir. 2010) (quoting 28 U.S.C. § 2254(d)). 	To be eligible for federal
habeas relief under § 2254, a state prisoner typically must first pursue the same
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claims under the same theory in state court. 	Scott v. Houk, 760 F.3d 497, 504 (6th
Cir. 2014).
A state court’s decision 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.” Jackson v. Cool, 111 F.4th
689, 695 (6th Cir. 2024). 	And a state court decision unreasonably applies federal
law “if the state court identifies the correct governing legal principle from the
Supreme Court’s decisions but unreasonably applies that principle to the facts.”
Slaughter v. Parker, 450 F.3d 224, 232 (6th Cir. 2006) (citing Williams v. Taylor,
529 U.S. 362, 407-08 (2000)). 	In reviewing whether a state-court decision was
“contrary to” or an “unreasonable application” of Supreme Court precedent, courts
“look to the last reasoned state court decision” that adjudicated the relevant claim on
the merits. See Mack v. Bradshaw, 88 F.4th 1147, 1154 (6th Cir. 2023).
The Supreme Court has emphasized that “an unreasonable application of
federal law is different from an incorrect application of federal law.” See Harrington
v. Richter, 562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410). Thus, “[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.” 	Woods v. Etherton, 578 U.S. 113, 116-17 (2016) (quoting Harrington,
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562 U.S. at 101). 	“The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but whether that determination
was unreasonable – a substantially higher threshold.” 	Schriro v. Landrigan, 550
U.S. 465, 473 (2007). 	Pro se habeas corpus pleadings are held to less stringent
standards than formal pleadings drafted by lawyers and must be liberally construed.
See Urbina v. Thomas, 270 F.3d 292, 295 (6th Cir. 2001). 	Nonetheless, the
petitioner must prove his allegations by a preponderance of the evidence. Pough v.
United States, 442 F.3d 959, 964 (6th Cir. 2006).
III.
Harden’s petition raises seven arguments. 	Four arguments stem from his
direct appeal: (1) a violation of the ex post facto clause, (2) ineffective assistance of
trial counsel, (3) evidentiary errors, and (4) improper scoring of offense variables at
sentencing. 	See ECF No. 1, PageID.3. 	The other three arguments arise from a
motion for relief from judgment filed in the circuit court: (5) that he we denied his
constitutional right to a fair trial due to a suggestive and improper identification
photo lineup; (6) that he was denied his due process right to the effective assistance
of trial and appellate counsel; and (7) that the DNA evidence used to convict him
was insufficient. See ECF No. 1, PageID.3, 22.
Respondent has answered in opposition to each of these arguments. 	See
generally ECF No. 10. In addition, he argues that claims four, five, six and seven
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are procedurally barred from this Court’s review. See ECF No. 10, PageID.174-179,
188-190, 203-205, 216-218. 	The Court will therefore address this jurisdictional
threshold issue before turning to the merits of Harden’s other arguments.
A. 	JURISDICTIONAL BAR: WAIVER AND PROCEDURAL
DEFAULT (CLAIMS 4, 5, 6 AND 7)
Respondent argues that Hardens claims for habeas relief are procedurally
barred for two reasons. First, Harden’s fourth claim for review (improper scoring of
offence variables) is barred because counsel waived this claim. 	See ECF No. 10,
PageID.174. 	Second, 	Harden’s 	fifth, 	sixth, 	and 	seventh 	claims 	(improper
identification, ineffective assistance of counsel, and insufficient evidence coupled
with procedural misconduct, respectively) are all barred because of Harden’s failure
to comply with Mich. Ct. R. 6.508(D) requiring that he raised these issues on direct
appeal.
In the Sixth Circuit,
[a] habeas petitioner procedurally defaults a claim if: (1) the petitioner
fails to comply with a state procedural rule; (2) the state courts enforce
the rule; (3) the state procedural rule is an adequate and independent
state ground for denying review of a federal constitutional claim; and
(4) the petitioner cannot show cause and prejudice excusing the default.
Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010). 	A federal court may not
review federal claims that have been procedurally defaulted based on an adequate
and independent state procedural rule. 	See Davila v. Davis, 582 U.S. 521, 527
(2017). 	Consequently, to overcome a procedural default, a state prisoner must
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demonstrate “cause” to excuse the procedural defect and “actual prejudice” if the
federal court were to decline to hear his claim. Shinn v. Ramirez, 596 U.S. 366, 371
(2022) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
The Court finds that Harden’s fourth claim is waived and therefore not
properly before this Court. Additionally, claims five, six, and seven are barred by
the procedural default rule. 	Consequently, the Court lacks jurisdiction over these
claims.
1. 	Improper Scoring of Offence Variables at Sentencing (Claim 4)
a. 	Scoring of OV8
Turning first to Harden’s claim for improper sentencing, Respondents only
addressed Harden’s claims against the score determination under OV8. 	In the
Response, the Respondent argues that because the Michigan Court of Appeals found
that Harden’s counsel waived any claim against the scoring variance applied during
sentencing, his claim for habeas relief is meritless. 	See ECF No. 10, PageID.174.
This Court agrees.
Generally, Harden’s claim that the state trial court incorrectly scored or
calculated his sentencing guideline range under the Michigan Sentencing Guidelines
is not a cognizable claim for federal habeas review because errors in the application
of state sentencing guidelines cannot independently support habeas relief. 	See
Kissner v. Palmer, 826 F.3d 898, 904 (6th Cir. 2016). 	Even so, when Harden
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originally brough this claim before the Michigan Court of Appeals, the Court held
his claim was waived from review based on the following exchange from the
sentencing hearing:
The Court: 	All right. OV-8.
Mr. Trummer: 	OV-8 we have scored at 15 because the
victim 	was 	asported 	to 	another 	place 	of
greater danger.
The Court: 	You agree with that?
Mr. Weberman: 	Yes, your Honor.
See ECF No. 11-16, PageID.848; see also ECF No. 11-12, PageID.757. 	That is a
clear expression of satisfaction with the trial court’s decision, which constitutes a
waiver under Michigan law. Because such waivers are recognized, independent and
adequate state law grounds that do not rely on federal law, petitioner is barred from
raising it under habeas review. See Jackson v. Romanowski, No. 15-2399, 2016 WL
1458221, at *2 (6th Cir. Apr. 13, 2016); see also Shahideh v. McKee, 488 F. App’x
963, 965 (6th Cir. 2012) (citing People v. Carter, 612 N.W.2d 144, 149 (Mich.
2000)). “[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.” 	Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). Thus, this claim is not properly before this Court because it was waived.
b. 	Scoring of OV10
While Respondent does not address OV10 directly, it is also procedurally
barred from review. Harden argues that his guidelines were improperly scored for
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predatory conduct because the trial court relied on speculation to reach its findings
and impermissibly attributed the acts of co-offenders to him in scoring. 	ECF No.
11-18, PageID.1209.
The Michigan Court of Appeals addressed the issue of whether there was a
clear error in scoring OV10 when Harden was a part of the proffered abduction
where the victim was transported, and he was lying in wait on the second-floor
bedroom awaiting the delivery of the victim. The court found that:
[t]he evidence concerning the nature of the kidnapping, movement of
the victim to a place of greater danger, coordinated imprisonment, and
the teamwork among the rapists leads to the reasonable inference that
Harden, and his cohorts, did not unexpectedly encounter the victim at
their apartment door and then simultaneously and unanimously form
the criminal intent to rape the victim.
ECF No. 11-16, PageID.847. 	On this basis, the appellate court concluded the
victim’s testimony supported the trial court’s conclusion of predatory conduct. Id.
But even if this were incorrect, errors in the application of state sentencing
guidelines cannot independently support habeas relief. See Kissner, 826 F.3d at 904.
A federal habeas court “may not issue [a writ] on the basis of a perceived error of
state law.” 	Sousa v. Warren, No. 2:07-cv-14112, 2010 WL 3937163, at *11 (E.D.
Mich. Sept. 30, 2010) (quoting Pully v. Harris, 465 U.S. 37, 41 (1984)). Especially
when the claim for relief rest on the bases of a sentencing guideline departure, which
does not violate any federal due process rights. See Austin v. Jackson, 213 F.3d 298,
301 (6th Cir. 2000).
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Thus, Harden’s claim that the state trial court incorrectly scored or calculated
his sentencing guideline range under the Michigan Sentencing Guidelines is not a
cognizable claim for federal habeas review because it is solely based on state law.
And because state courts are the final authority on state-law issues, the federal
habeas court must defer to and is bound by the state court’s rulings on such matters.
See Mason v. Nagy, No. 21-1040, 2021 WL 6502177, at *3 (6th Cir. July 27, 2021)
(citing Estelle, 502 U.S. at 67-68). 	Therefore, Harden’s claim for relief on the
scoring of OV10 is also procedurally barred.
2. 	Procedural Default Rule (Claims Five, Six, and Seven)
As for Harden’s fifth, sixth, and seventh claims, this Court finds they are
barred from review under the procedural default rule. 	See Guilmette, 624 F.3d at
290. All three claims were “reasonably available to counsel” at the time of his initial
appeal. See Murray v. Carrier, 477 U.S. 478, 488 (1986). And Rule 6.508 requires
that a motion seeking relief from judgement not be granted if the defendant could
have raised the issues alleged in the motion within a prior appeal or motion. 	See
Mich. Ct. R. 6.508(D).
Here, Harden first filed a notice of appeal on March 12, 2018, on three
grounds of relief, but failed to include the arguments now alleged in his fifth, sixth,
and seventh claims. Instead, while the appeal of his conviction was working its way
through the Michigan court system, he proceeded to file a motion for a new trial with
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the district court. The trial court found that Harden had not met his burden to show
good cause for why these claims were not raised in the original appeal under Mich.
Ct. R. 6.508(D) for a claim of relief from judgement. 	All of the underlying facts
necessary to bring those claims were available at the time Harden first appealed his
conviction. Therefore, claims five, six, and seven are procedurally defaulted.
B. 	VIOLATION OF EX POST FACTO CLAUSE (CLAIM 1)
Turning to the merits of Harden’s remaining claims, Harden first argues that
it was a violation of the Ex Post Facto Clause of the federal constitution for the State
of Michigan to retroactively apply the revised statute of limitations statute to extend
the limitations period in this case. 	Not so. 	The offense in this case took place in
1997. At the time of the crime, the statute of limitations in Michigan for first-degree
criminal sexual conduct was “within 6 years after the commission of the offense or
by the alleged victim’s twenty-first birthday, whichever is later.” People v. Kasben,
919 N.W. 2d 463, 464-65 (2018) (quoting MICH. COMP. L AWS § 767.24, as amended
by 1987 PA 255) (quotation marks omitted).
On May 2, 2001, before the victim turned twenty-one years old, M ICH. COMP.
L AWS § 767.24 (1) was amended to indicate that a prosecution for first-degree
criminal sexual conduct, “may be found and filed at any time.” See P.A. 2001, No.
6. When the statute was amended, the statute of limitations for Harden’s first-degree
criminal sexual conduct charge had not yet expired. Harden was not charged with
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this offense until September 12, 2017, see ECF No. 11-1, PageID.242, and contends
that prosecution for this offense was time-barred, because he was charged long after
the victim had turned twenty-one years old. See ECF 11-18, PageID.1199.
The Ex Post Facto Clause of the United States Constitution may be violated
if a statute of limitations for criminal prosecutions is extended after it had already
expired against a particular criminal defendant. See Stogner v. California, 539 U.S.
607, 632-33 (2005). 	However, the extension of a limitations period before that
period has run does not violate the Ex Post Facto Clause. See United States v. Knipp,
963 F. 2d 839, 844 (6th Cir. 1992).
The Michigan Legislature eliminated the statute of limitations for first-degree
criminal sexual conduct prosecutions before the limitations period had expired on
Harden’s first-degree criminal sexual conduct charge. Because the amended MICH.
COMP. L AWS § 767.24 contains no statute of limitations for first-degree criminal
sexual conduct prosecutions, Harden’s first-degree criminal sexual conduct charge
was not barred by the statute of limitations. 	Therefore, Harden is not entitled to
relief because there was no Ex Post Facto violation.
C. 	INEFFECTIVE ASSISTANCE OF COUNSEL (CLAIM 2)
Harden next argues that his trial counsel failed to challenge the chain of
custody for the DNA that led to his conviction. ECF No. 1, PageID.8. And based
on this, he is entitled to habeas relief – the Court disagrees.
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Harden must satisfy a two-prong test to show that he was denied the effective
assistance of counsel. 	First, the defendant must demonstrate that counsel’s
performance was so deficient that the attorney did not function as the “counsel”
guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687
(1984). 	In so doing, the defendant must overcome a strong presumption that
counsel’s behavior lies within the wide range of reasonable professional assistance.
Id. 	The defendant must overcome the presumption that, under the circumstances,
the challenged action might be sound trial strategy. 	Id. at 689. 	Secondly, the
defendant must show that such performance prejudiced his defense. Id. A defendant
demonstrates prejudice by showing that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
The burden is on the defendant who raises a claim of ineffective assistance of
counsel, and not on the state, to show a reasonable probability that the result of the
proceeding 	would 	have 	been 	different, 	but 	for 	counsel’s 	allegedly 	deficient
performance. 	See Wong v. Belmontes, 558 U.S. 15, 27 (2009). 	The Strickland
standard applies as well to claims of ineffective assistance of appellate counsel. See
Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005).
Here, the Michigan Court of Appeals rejected this claim. See ECF No. 11-16,
PageID.846 (“Because an objection to the admissibility of the sexual assault kit
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would have been futile given that gaps in the chain of custody go to the weight rather
than admissibility, harden has failed to establish that his counsel was ineffective for
failing to object.”). 	This Court concurs. 	Under Michigan law, a perfect chain of
custody is not required to admit evidence and any gaps do not require automatic
exclusion of the evidence. Harden, 2020 WL 1285363, at *2 (citation omitted).
“No precedent establishes that defense counsel must challenge the chain of
custody [of evidence] or risk falling below the minimum requirements of the Sixth
Amendment.” Cowans v. Bagley, 639 F.3d 241, 252 (6th Cir. 2011). Therefore, any
gaps in the chain of custody of the sexual assault kit would have gone to the weight
of the evidence, not its admissibility. 	Counsel was not ineffective for failing to
object to the admission of the evidence on this basis. 	See Dell v. Straub, 194 F.
Supp. 2d 629, 653 (E.D. Mich. 2002).
Harden also claims that counsel was ineffective for failing to call an expert on
eyewitness identification, but “no precedent establishes that defense counsel must
call an expert witness about the problems with eyewitness testimony in identification
cases or risk falling below the minimum requirements of the Sixth Amendment.”
Perkins v. McKee, 411 F. App’x 822, 833 (6th Cir. 2011); see also Dorch v. Smith,
105 F. App’x 650, 653 (6th Cir. 2004) (upholding as reasonable the Michigan Court
of Appeals’ conclusion that defense counsel’s failure to call an expert witness on
eyewitness 	identification 	counsel 	did 	not 	satisfy 	Strickland, 	because 	counsel
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“presented 	several 	witnesses 	who 	testified 	as 	to 	[the 	habeas 	petitioner’s]
whereabouts on the weekend of the incident” and cross-examined the eyewitness
regarding inconsistencies in his identification of the petitioner). 	Furthermore,
“[a]ppellate counsel cannot be found to be ineffective for ‘failure to raise an issue
that lacks merit.’” Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (quoting
Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). A habeas court reviewing an
ineffective assistance of appellate counsel claim must defer twice: first to appellate
counsel’s 	decision 	not 	to 	raise 	an 	issue 	and 	secondly, 	to 	the 	state 	court’s
determination that appellate counsel was not ineffective. 	Woods v. Etherton, 578
U.S. 113, 119 (2016) (per curiam). In affording that deference, this Court finds that
Harden is not entitled to relief on his ineffective assistance of counsel claims.
D. 	EVIDENTIARY ERROR (CLAIM 3)
Finally, Harden claims that admission of the victim’s testimony regarding her
therapy was erroneous resulting in an improper admission that was irrelevant and
prejudicial. ECF No. 1, PageID.7. Respondent argues that no error was made in the
trial courts determination to admit the testimony that would warrant habeas relief.
ECF No. 10, PageID.165-173. 	The Court agrees. 	There was no violation of the
federal Constitution made by admitting this testimony at trial.
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court questions.” 	Estelle v. McGuire, 502 U.S. 62, 67-68
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(1991). 	A federal court is limited in federal habeas review to deciding whether a
state court conviction violates the Constitution, laws, or treaties of the United States.
Id. 	Thus, errors in the application of state law, especially rulings regarding the
admissibility of evidence, are usually not questioned by a federal habeas court.
Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
Harden’s claim that he was denied a fair trial by the admission of irrelevant and
highly prejudicial evidence cannot form the basis for habeas relief, because it
involves a state law evidentiary issue. See Hall v. Vasbinder, 551 F. Supp. 2d 652,
676 (E.D. Mich. 2008); rev’d on other grds 563 F.3d 222 (6th Cir. 2009). The Sixth
Circuit has found that “[t]he Supreme Court has never held (except perhaps within
the capital sentencing context) that a state trial court’s admission of relevant
evidence, no matter how prejudicial, amounted to a violation of due process.”
Blackmon v. Booker, 696 F.3d 536, 551 (6th Cir. 2012) (emphasis original). 	“A
reviewing court does not re-weigh the evidence or re-determine the credibility of the
witnesses whose demeanor has been observed by the trial court.” 	Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. Longberger, 459
U.S. 422, 434 (1983)). Accordingly, the “mere existence of sufficient evidence to
convict…defeats a petitioner’s claim.” Id. at 788-789.
Here, the Michigan Court of Appeals concluded that the victim’s testimony
about being in therapy “gave context to the victim’s inability to recall certain details
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of the crime and the events that occurred after the crime.” 	Harden, 2020 WL
1285363, at *3. This Court must defer to that determination. Therefore, Harden is
not entitled to habeas relief on his third claim.
IV.
When the district court enters a final order adverse to a habeas petition, it must
issue or deny a certificate of appealability. 	Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254. 	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 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).
And when the 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.
Here, none of the above can be shown. The Court therefore denies Petitioner
a certificate of appealability because he failed to make a substantial showing of the
denial of a federal constitutional right. However, although jurists of reason would
not debate this Court’s resolution of Petitioner’s claims, the issues are not frivolous;
therefore, an appeal could be taken in good faith and Petitioner may proceed in forma
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pauperis on appeal, if he desires to appeal further. 	See Foster v. Ludwick, 208 F.
Supp. 2d 750, 765 (E.D. Mich. 2002).
V.
Accordingly, the Court DENIES WITH PREJUDICE the Petition for a Writ
of Habeas Corpus and DENIES a Certificate of Appealability. However, Petitioner
is GRANTED leave to appeal in forma pauperis.
IT IS SO ORDERED.
Dated: October 24, 2025 	s/Brandy R. McMillion
Detroit, Michigan 	BRANDY R. MCMILLION
United States District Judge
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