from the United States District Court for the Western
District of Michigan at Grand Rapids. No. 1:12-cv-01210-Paul
Lewis Maloney, District Judge.
Before: ROGERS, SUTTON, and BUSH, Circuit Judges.
Nathan Dufresne, a Michigan prisoner proceeding pro se,
appeals the district court's judgment denying his
petition for a writ of habeas corpus, filed pursuant to 28
U.S.C. § 2254. Dufresne has filed a notice of appeal,
which this court construes as an application for a
certificate of appealability. See Fed. R. App. P.
2006, a jury convicted Dufresne of three counts of
first-degree criminal sexual conduct ("CSC") and
six counts of third-degree CSC. The convictions were based
upon sexual acts that Dufresne committed against his
then-girlfriend, Angela Wiertalla, with whom he shared a son.
Wiertalla reported the acts to police after Dufresne left her
and traveled to Florida with their son. Dufresne admittedly
belonged to an organization known as the "Creativity
Movement, " which was considered by law enforcement to
be a white-supremacist group. At one time, the FBI
investigated whether individuals associated with the
Creativity Movement were involved in the murder of the mother
and husband of Judge Joan Lefkow, a federal district judge in
trial court sentenced Dufresne to 50 to 75 years of
imprisonment on the first-degree CSC counts and 25 to 50
years of imprisonment on the third-degree CSC counts.
Appellate counsel filed a motion to remand for an evidentiary
hearing on the effectiveness of trial counsel's
assistance pursuant to People v. Ginther, 212 N.W.2d
922 (Mich. 1973). The Michigan Court of Appeals remanded, and
a Ginther hearing was held, after which the Emmet
County Circuit Court concluded that Dufresne failed to show
that trial counsel performed ineffectively. The Michigan
Court of Appeals affirmed, and the Michigan Supreme Court
denied leave to appeal. People v. Dufresne, No.
273407, 2008 WL 5055959, at *1 (Mich. Ct. App. Oct. 14, 2008)
(per curiam), appeal denied, 764 N.W.2d 266 (Mich.
2009). In 2010, Dufresne filed a motion for relief from
judgment, which the Emmet County Circuit Court denied. The
Michigan Court of Appeals and Michigan Supreme Court denied
leave to appeal. People v. Dufresne, No. 305490
(Mich. Ct. App. Dec. 27, 2011), appeal denied, 821
N.W.2d 672 (Mich. 2012).
through counsel, Dufresne then filed a federal habeas
petition raising five grounds for relief: (1) trial counsel
performed ineffectively; (2) the trial court erred by
granting a motion in limine to exclude evidence and the
prosecutor intimidated crucial witnesses; (3) appellate
counsel failed to raise meritorious issues; (4) repeated
references to his post-arrest, post-Miranda silence
violated Doyle v. Ohio, 426 U.S. 610 (1976); and (5)
repeated references to his ties to the Creativity Movement
deprived him of a fair trial. The district court denied
habeas relief, concluding that Dufresne procedurally
defaulted grounds one and two and was not entitled to habeas
relief on the merits of grounds three through five.
certificate of appealability may issue only if the petitioner
makes "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). A
petitioner may meet this standard by showing that reasonable
jurists could debate whether the petition should have been
determined 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)). If the petition was denied on procedural
grounds, the petitioner must show, "at least, that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling." Id.
the Antiterrorism and Effective Death Penalty Act
("AEDPA"), if a state court previously adjudicated
a petitioner's claims on the merits, a district court may
not grant habeas relief unless the state court's
adjudication of the claim 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 "a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d); see
Harrington v. Richter, 562 U.S. 86, 100 (2011). Where
AEDPA deference applies, this court must evaluate the
district court's application of § 2254(d) to
determine "whether that resolution was debatable amongst
jurists of reason." Miller-El v. Cockrell, 537
U.S. 322, 336 (2003).
Procedural Default of Grounds One and Two
district court found that Dufresne procedurally defaulted his
first two grounds for relief because the Emmet County Circuit
Court declined to review these claims under Michigan Court
Rule 6.508(D)(3). It also found that Dufresne failed to make
an adequate showing of cause and prejudice or a miscarriage
of justice to overcome the procedural default.
Procedural Default - Ground One
one of Dufresne's habeas petition alleged that trial
counsel performed ineffectively by failing to (a) review a
videotape of a March 9, 2006 statement that Dufresne made to
Michigan State Police Detective Gwyneth White-Erickson and
use the videotape to impeach White-Erickson and show that
Dufresne consistently denied engaging in the sexual conduct
alleged by Wiertalla; (b) review White-Erickson's
interview of Wiertalla of February 23, 2006, and use that
interview to impeach Wiertalla's trial testimony; (c)
investigate the murders of Judge Lefkow's relatives and
present evidence showing that Dufresne was not involved; (d)
interview and present witnesses whose testimony would have
been helpful to the defense; (e) investigate and present
evidence relating to Wiertalla's mental health, history
of drug and alcohol abuse, and criminal history; and (f)
object to the introduction of evidence regarding
Dufresne's ties to the Creativity Movement.
ground one of his habeas petition, Dufresne appears to recite
only those arguments raised in his motion for relief from
judgment-issues (a) through (e). See R. 1 at 43-59.
The district court understandably thought that Dufresne was
not raising the "claims of ineffective assistance of
[trial] counsel that were raised on direct appeal." R.
40 at 37. But elsewhere in his petition, Dufresne states that
he is also raising the issues that he "r[a]n on direct
appeal" like issue (f), trial counsel's failure to
object to prejudicial evidence. R. 1 at 23. Dufresne's
ultimate discussion of that issue in a single paragraph is
cursory to say the least. But reasonable jurists could debate
the district court's procedural conclusion that Dufresne
did not assert this claim in his petition. See
Slack, 529 U.S. at 484.
still can't disturb the district court's denial of a
COA on this claim unless reasonable jurists could debate
whether it "states a valid claim of the denial of a
constitutional right." Id. Our court has never
addressed the meaning of Slack's "valid
claim" language in a published opinion. But it means at
least this: To meet Slack's standard, it is not
enough for a petitioner to allege claims that are arguably
constitutional; those claims must also be arguably
valid or meritorious.
approach best accords with AEDPA's text and
Slack's interpretation of its meaning. First,
under AEDPA we may issue a COA "only if the applicant
has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2)
(emphasis added). The best reading of that language is that
our inquiry goes to both the procedural component of the
district court's decision and the merits lurking behind
it. Second, the Slack Court framed its standard in
terms of what "jurists of reason would find . . .
debatable." 529 U.S. at 484. Although courts should not
conduct a full merits inquiry at the COA stage, the key
question remains "the ...