Petition for Writ of Certiorari — Jagodka v. Lafler

Petitioner Jagodka filed an Application for Leave to

Appeal with the Michigan Court of Appeals, which was

deni¢d on June 25, 2002. The Michigan Supreme Court

denied Leave to Appeal on February 28, 2003, and

Reconsideration was denied on May 30, 2003.

Proceedings in the Federal Courts

Petitioner Jagodka filed a Petition for Writ of Habeas

Corpus on June 12, 2003, arguing that he was denied his

constitutional right to effective assistance of counsel. He also

argued that the Judge misconstrued the law when he made

certain rulings, and that his sentence amounted to a

disproportionate sentence, which violated the Eighth

Amendment’s ban on cruel and unusual punishment. U.S.

Const. Amend. VIII.

On March 2, 2004, District Judge Arthur J. Tarnow

issued a Judgment and Opinion and Order dismissing the

Petition for Writ of Habeas Corpus. Judge Tarnow found that

Petitioner did not timely pursue his habeas corpus relief, and

that he is not entitled to equitable tolling.

Petitioner was granted a certificate of appealability on

the sole issue of whether his petition was time-barred.

Although Petitioner recognizes that his petition was filed

outside the applicable statute of limitations, he nevertheless

asserted that he is entitled to equitable tolling due to the

petitioner's lack of constructive knowledge of the filing

requirement, and given the fact that he was only 16 years old

-8-

at the time of the crime, he has demonstrated that his

ignorance of §§ 2244 between 1996 and 2003 was reasonable.

Once his grandparents obtained appellate counsel on his

behalf in 2001, he was diligent in pursuing his rights by

exhausting his state court remedies and filing the Writ in less

than one month after the Michigan Supreme Court denied

reconsideration of his application for leave to appeal. In

addition, there was a complete absence of prejudice to the

Respondent by the late filing of the Writ.

The one-year statute of limitations, 28 U.S.C. §§

2244(d), became effective on April 24, 1996. His petition

was filed outside the applicable statute of limitations.

However, the one-year limitation period prescribed by

AEDPA for habeas actions is not a jurisdictional limitation,

and is subject to equitable tolling. Dunlap v. United States,

250 F.3d 1001, 1007 (6th Cir. 2001). In this regard,

Petitioner contends that he is entitled to equitable tolling.

The following five factors are to be considered in

determining the appropriateness in tolling a statute of

limitations: "(1) the petitioner's lack of notice of the filing

requirement; (2) the petitioner's lack of constructive

knowledge of the filing requirement; (3) diligence in pursuing

one's rights; (4) absence of prejudice to the respondent; and

(5) the petitioner's reasonableness in remaining ignorant of

the legal requirement for filing his claim." Dunlap v. United

States, supra at 1008; Andrews v. Orr, 851 F.2d 146, 151 (6th

Cir. 1988).

—*

Equitable tolling is only warranted in "rare and

exceptional circumstances." York v. Galetka, 314 F.3d 522,

527 (10th Cir.2003). However, courts have noted that

"{e]quitable tolling would be appropriate ... when a prisoner

is actually innocent" or "when an adversary's conduct--or

other uncontrollable circumstances--prevents a prisoner from

timely filing." Gibson v. Klinger, 232 F.3d 799, 808 (10th

Cir.2000). The Fifth Circuit concluded that "(t]he State's

failure to make available to a prisoner the AEDPA, which sets

forth the basic procedural rules the prisoner must follow in

order to avoid having his habeas petition summarily thrown

out of court [constituted] an impediment" under §§

2244(d)(1)(B). Egerton v. Cockrell, 334 F.3d 433, 438 (Sth

Cir.2003) Accordingly, the court held that the one-year

limitations period did not begin to run until the petitioner in

that case was transferred to a facility where a copy of AEDPA

was available. Egerton v. Cockrell, supra at 438.

Petitioner Jagodka maintains that his ignorance of §§

2244 between 1996 and 2001 was reasonable. He was only

16 years old at the time of the state court proceedings. Given

his age and lack of maturity at the time, he could not be

expected to have even reasonable constructive knowledge of

the one-year statute of limitations, particularly since it was

only enacted into law less than 6 months prior to his plea and

sentence.

Furthermore, once his grandparents obtained counsel

for him to pursue appellate remedies, his lack of appeals to

-10-

the Court of Appeals and the Michigan Supreme Court

prevented him from filing his habeas corpus petition within

the applicable statute of limitations. Nevertheless, he was

diligent in pursuing his rights by exhausting his, state court

remedies with counsel and filing the Federal Writ less than

one month after the Michigan Supreme Court denied

reconsideration of his application for leave to appeal. These

actions clearly demonstrate that Petitioner Jagodka timely

pursued his request for habeas relief. As Petitioner Jagodka

timely pursued his habeas corpus relief once he exhausted his

state court remedies, he is entitled to equitable tolling.

The Sixth Circuit incorrectly determined that

Petitioner Jagodka was not entitled to equitable tolling of the

statute of limitations. The Court took note of the unusual

procedural history of Petitioner Jagodka's state court litigation

but concluded that Petitioner Jagodka did not pursue his

rights diligently. The Court focused primarily on the fact that

courts are reluctant to find that a lack of notice of the

AEDPA, or ignorance of the law in general, excuses a late

filing.

However, the record does not support the Court’s

conclusion that Petitioner Jagodka was not diligent in

pursuing his rights. See, Dunlap, 250 F.3d at 1008. While it

is true that more than five years elapsed between the

imposition of Petitioner Jagodka's sentence in November

1996 and the filing of his state post-conviction action in 2001,

he clearly offered a reasonable explanation of this long delay.

a

Moreover, when he filed his state post-conviction action, he

was still unaware of AEDPA, and the fact that he was only

able to file any appellate pleadings after his grandparents

obtained legal counsel for him supports the proposition that

his lack of access to AEDPA contributed to the delay in filing

his §§ 2254 petition. See, Egerton v. Cockrell, supra.

Finally, it is worth noting that there was a complete

absence of prejudice to the Respondent by the late filing of

the writ in this case. Any consideration of Petitioner’s claims

raised in his previously filed writ of habeas corpus would

have merely amounted to more work for the Respondent.

The denial of equitable tolling would effectively

preclude appellate review in this case. The one-year statute

of limitations is designed to bar frivolous appeals, not to

preclude appellate review of cases involving substantial

issues. Since the federal district court has not indicated that

the issues involved in Petitioner Jagodka's petition are

frivolous, it is clear that the matters raised in the previously

filed writ of habeas corpus should be considered on their

merits.

12.

SUMMARY AND RELIEF REQUESTED

For these reasons Petitioner Jagodka ask this

Honorable Court to grant certiorari in this case and remand

this matter to the United States Court of Appeals for the Sixth

Circuit for review of the issues raised tn his petition for writ

of habeas corpus.

Respectfully submitted,

PHILLIP D. COMORSKI (P46413)

Attorney for Petitioner

2632 Buhl Building

Detroit, Michigan 48226

(313) 963-5101

«13.

APPENDIX

6TH CIRCUIT COURT OF APPEALS FILINGS:

Opinion,

os SA are pearene es reyes Al-A6

EASTERN DISTRICT OF MICHIGAN FILINGS:

Opinion and Order Granting

Request for Certificate of

Appealability,

I oo che hue eas yak ae B1-B4

Opinion and Order Granting

Respondent’s Motion for

Summary Judgment and

Dismissing Petition for

Writ of Habeas Corpus, 7

EES ie 5 hss kane udaxe wees C1-C6

Judgment, |

filed 02/26/04 ..... error rr ore tree D1-D2

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINION,

FILED JULY 27, 2005

A-1 through A-6

NOT RECOMMENDED FOR PUBLICATION

No. 04-1345

FILED

July 27, 2095

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT "ed< qd Green,

|

JASON JAGODKA, )

Petitioner-Appellant, ) ON APPEAL FROM

V. ) THE UNITED STATES

BLAINE LAFLER, ) DISTRICT COURT FOR

Respondent-Appellee.) THE EASTERN DISTRICT

OF MICHIGAN

Before: SILER and DAUGHTREY, Circuit Judges; and

MARBLEY, District Judge.”

PER CURIAM. Petitioner Jason Jagodka appeals the

district court’s denial of his petition for a writ of habeas

corpus. The issue certified for appeal by the district cov — is

whether Jagodka’s petition was timely in light of the one-

year statute of limitations in the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. §

2244(d)(1). We affirm.

* The Honorable Algenon L. Marbley, United States District

Judge for the Southern District of Ohio, sitting by

designation.

A-!

BACKGROUND

Jagodka is a Michigan prisoner serving sentences of

25 to 50 years for second degree murder, and two years for

possession of a firearm while in the commission of a felony.

He pleaded no contest to the charges in 1996 and, although he

was 16, was sentenced as an adult. The convictions were

finalized on November 14, 1997, one year after sentencing,

when the time limit for filing a direct appeal in state court

expired. See 28 U.S.C. § 2244(d)(1)(A); M.C.R. 7.205(F)(3).

Jagodka did not seek either direct review of his conviction or

collateral attack at the state level before his conviction was

finalized.

In 2001, Jagodka filed a motion for relief from

judgment in Monroe County Circuit Court. In denying this

motion, the court found that Jagodka had not met his burden

of establishing entitlement to the relief requested, as set forth

in M.C.R 6.508(D)(3), which precludes the court from

granting relief to the defendant if “the motion . . . alleges

grounds for relief... which could have been raised on appeal

from the conviction and sentence.” /d. An exception exists if

the defendant can demonstrate “good cause for failure to raise

A-2

such grounds on appeal,” but the court concluded that

Jagodka had not met this burden. Jagodka then filed a motion

for leave to appeal in the Michigan Court of Appeals, which

was denied in 2002. Similarly, the Michigan Supreme Court

denied Jagodka’s delayed application for leave to appeal in

February 2003, stating only that he had “failed to meet the

burden of establishing entitlement to relief under MCR

6.508(D).” His motion for reconsideration was denied in May

2003.

Jagodka filed this petition for a writ of habeas corpus

on June 12, 2003, alleging that he was denied effective

assistance of counsel at trial and that his sentence was

disproportionately harsh. He concedes that his petition was

untimely; however, he maintains that he did not file the

necessary state appeals because he lacked appellate counsel

until 2001, when his grandparents obtained legal

representation for him. The district court granted the

respondent Lafler’s motion for summary judgment,

dismissing the petition with prejudice as untimely. The

district court then granted Jagodka a Certificate of

Appealability only on the issue of whether his habeas petition

was timely filed.

A-3

DISCUSSION

Federal courts grant equitable tolling sparingly, and the

burden is on the petitioner to show that it is warranted. Griffin

v. Rogers, 399 F.3d 626, 635 (6th Cir. 2002) (citing /rwin v.

Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)). We

review a district court’s decision to refuse equitable tolling de

novo. Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir.

2001).

The one-year limitation period prescribed by AEDPA

for habeas actions is a statute of limitation, not a jurisdictional

limitation, and therefore is subject to equitable tolling. /d. at

1007. To decide whether equitable tolling applies, this court

weighs the following five factors: “(1) the petitioner’s lack of

notice of the filing requirement; (2) the petitioner’s lack of

constructive knowledge of the filing requirement; (3)

diligence in pursuing one’s rights; (4) absence of prejudice to

the respondent; and (5) the petitioner’s reasonableness in

remaining ignorant of the legal requirement for filing his

claim.” /d. at1008 (citing Andrews v. Orr, 851 F.2d 146, 151

(6" Cir.1988)). These factors are not necessarily

comprehensive and are not relevant in all cases. Cook v.

Stegall, 295 F.3d 517, 521 (6th Cir. 2002).

A-4

For brevity, the Andrews factors are combined for

analysis. Merging the first, second and fifth factors, Jagodka

argues that he lacked actual and constructive knowledge of

the § 2244(d) filing requirement because he was only 16 years

old at the time he pleaded no contest, a probation officer

found him to be relatively immature for his age, and he was

sentenced only six months after AEDPA became effective.

However, Jagodka failed to allege any material impediment

to his filing a timely application.

Jagodka argues that he was too young and immature

to understand his rights, disregarding the findings of fact

made at sentencing regarding his maturity and age. We have,

in an unpublished opinion, implicitly rejected this argument.

See Starnes v. United States, No. 99-5144, 18 Fed. Appx.

288, 293 (6th Cir. Aug. 22, 2001) (noting that “courts are

reluctant to find that a lack of actual notice of the AEDPA, or

ignorance of the law in general, may excuse a late filing.”’).

Additionally, although Jagodka asserts that his untimeliness

should be excused because only six months passed between

his sentencing and AEDPA’s effective date, this argument is

misleading. He had two years from his sentencing—not six

months-to file a timely habeas petition. He was sentenced on

November 14, 1996, and the habeas statute of limitations

expired on November 14, 1998. AEDPA had long been in

effect by the time his habeas petition was due.

The third factor to consider is the degree of diligence

exhibited by the petitioner in pursuing his rights. Jagodka

delayed from 1996 until 2001 to begin the necessary state

appeals. He attempts to excuse this inactivity by arguing that

his grandparents could not afford legal counsel for him during

that time. However unfortunate, this is no excuse, as no

constitutional nght to an attorney in state post-conviction

proceedings exists. Coleman v. Thompson, 501 U.S, 722,757

(1991). Additionally, Jagodka has offered no evidence that he

pursued his rights in any way between sentencing and the

filing of this petition — even using appellate counsel the state

court offered to appoint for the purposes of direct review.

Because Jagodka was not wrongfully deprived of appellate

counsel, no adequate justification exists for his delay.

The fourth and final prong, prejudice to respondent,

need not be reached “unless the other factors of the test are

met.” See Dunlap, 250 F.3d at 1009. In light of the Andrews

factors, Jagodka has not met his burden to demonstrate

entitlement to equitable tolling of the statute of limitations.

AFFIRMED.

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

OPINION AND ORDER GRANTING

REQUEST FOR CERTIFICATE OF APPEALABILITY,

FILED APRIL 30, 2004

B-1 through B-4

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JASON JAGODKA,

Petitioner, Case Number: 03-72267

V. HONORABLE ARTHUR J. TARNOW

BLAINE C. LAFLER,

Respondent.

OPINION AND ORDER GRANTING REQUEST

FOR CERTIFICATE OF APPEALABILITY

Petitioner Jason Jagodka, through his attorney, filed a

petition for a writ of habeas corpus pursuant to 28 D.S.C. §

2254. On February 26, 2004, the Court issued an Opinion

and Order Granting Respondent's Motion for Summary

Judgment and Dismissing Petition for Writ of Habeas Corpus.

Petitioner has filed a Notice of Appeal. Thus, the Court must

determine whether Petitioner is entitled to a certificate of

appealability (COA). See Castro v. United States, 310 F.3d

900,901 -02 (6" Cir. 2002) (holding that "a district judge must

issue or deny a COA if an applicant files a notice of appeal"

without awaiting the filing of an application for a COA).

B-1

"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.” Miler-El v. Cockrell, 123

S. Ct. 1029, 1039 (2003). A certificate of appealability 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 at 893, n.4

(1983)). When a prisoner's habeas corpus petition was denied

on procedural grounds, a certificate of appealability "should

issue. . .if the prisoner shows, 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.

B-2

The Court denied Petitioner's habeas corpus petition

because it was not timely filed. Petitioner's conviction became

final on November 19, 1997, when the time for filing a direct

appeal in state court expired. See M.C.R. 7.204(A)(2) &

7.205(F). Therefore, absent state collateral review, Petitioner

was required to file his petition for a writ of habeas corpus by

November 19, 1998, to comply with the one-year limitations

period. Petitioner sought state collateral review of his

conviction. However, on November 19, 1997, the date the

limitations period commenced, Petitioner had no application

for collateral review pending. He did not file his motion for

relief from judgment until January 12, 2001. Thus, the

limitations period commenced on November 19, 1997, and

continued to run, uninterrupted, until it expired on November

19, 1998. Petitioner's motion for relief from judgment was

not filed until over two years after the limitations period

expired and, consequently, this Court held it did not serve to

toll the limitations period. :

Petitioner also failed to allege that there existed any

impediment to his filing a timely application, that his claim

involves a newly-recognized constitutional right or newly-

B-3

discovered facts, or that he is actually innocent. The Court,

therefore, held that the petition was untimely.

My ego tells me that all reasonable jurists would agree

with my decision that the petition was not timely filed. My

experience is opposite. Thus, my belief that this was the

correct decision should not insulate that decision from further

review. See Taylor v. Howes, 26 Fed. Appx. 397, 399 (6" Cir.

2001). Because the Court is not infallible and does not believe

that its decision should be insulated from further review, the

Court finds that reasonable jurists could find it debatable

whether this Court was correct in its procedural ruling and

whether the petition states a valid claim of the denial of a

constitutional right. See Slack, 529 U.S. at 484. Therefore, the

Court shall grant a certificate of appealability for

consideration of the timeliness of the petition.

Accordingly, for the foregoing reasons, IT IS

ORDERED that Petitioner's Request for Certificate of

Appealability is GRANTED.

/s/ Arthur J. Tarnow

ARTHUR J. TARNOW

UNITED STATES DISTRICT JUDGE

DATE: _ April 30, 2004

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

OPINION AND ORDER GRANTING

RESPONDENT’S MOTION FOR SUMMARY

JUDGMENT AND DISMISSING

PETITION FOR WRIT OF HABEAS CORPUS,

FILED FEBRUARY 26, 2004

C-1 through C-6

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JASON JAGODKA,

Petitioner, Case Number: 03-72267

V. HONORABLE ARTHUR J, TARNOW

BLAINE C. LAFLER,

Respondent.

OPINION AND ORDER GRANTING

RESPONDENT'S MOTION FOR SUMMARY

JUDGMENT AND DISMISSING PETITION FOR

WRIT OF HABEAS CORPUS

I. Introduction

Petitioner Jason Paul Jagodka, through his attorney,

has filed a petition for a writ of habeas corpus, pursuant to 28

U.S.C. § 2254. Petitioner is currently incarcerated at the

Saginaw Correctional Facility in Freeland, Michigan. Before

the Court is Respondent's Motion for Summary Judgment and

Dismissal of Petition for Writ of Habeas Corpus.

II. Procedural History

On August 21, 1996, Petitioner pleaded no contest in

Monroe County Circuit Court to second-degree murder and

possession of a firearm during the commission of a felony. On

November 14, 1996, he was sentenced to twenty-five to fifty

years imprisonment for the second-degree murder conviction,

to be served consecutively to two years imprisonment for the

felony-firearm conviction. Petitioner did not file a direct

appeal of his conviction or sentence.

On January 12,2001, Petitioner filed a motion for

relief from judgment in the trial court. The trial court denied

the motion on April 23, 2001. People v. Jagodka, No. 96-

27613 (Monroe County Circuit Court Apr. 23, 2001).

Petitioner filed a delayed application for leave to appeal the

trial court's decision in the Michigan Court of Appeals. The

Michigan Court of Appeals denied leave to appeal. People v.

Jagodka, No. 240512 (Mich. Ct. App. June 25, 2002).

Petitioner then filed a delayed application for leave to appeal

in the Michigan Supreme Court. The Michigan Supreme

Court denied leave to appeal. People v. Jagodka, 468 Mich.

853 (Mich. Feb. 28, 2003). Petitioner filed a motion for

reconsideration, which was denied. People v. Jagodka, No.

122180 (Mich. May 30, 2003).

On June 12, 2003, Petitioner, through his attorney,

filed the pending petition for a writ of habeas corpus.

III. Analysis

Respondent has filed a Motion for Summary Judgment

on the ground that the petition for habeas corpus relief was

not timely filed. The Antiterrorism and Effective Death

Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214

("AEDPA" or "the Act") applies to all habeas petitions filed

after the effective date of the Act, April 24, 1996. Petitioner's

application for habeas corpus relief was filed after April 24,

1996. Therefore, the provisions of the AEDPA, including the

limitations period for filing an application for habeas corpus

relief, apply to Petitioner's application. Lindh v. Murphy, 521

U.S. 320, 337 (1997).

The AEDPA amended 28 U.S.C. § 2244 to include a

one-year limitations period within which habeas petitions

challenging state court judgments must be filed. A prisoner is

required to file a federal habeas corpus petition within one

year of:

the date on which the judgment of conviction became

final by the conclusion of direct review or the

expiration of the time for seeking such review.

28 U.S.C. § 2244 (d)(1)(A).

However, the time during which a prisoner seeks

collateral review of a conviction does not count toward the

limitations period. Section 2244( d)(2) provides:

The time during which a properly filed application for

post-conviction or other collateral review with respect

to the pertinent judgment or claim is pending shall not

be counted toward any period of limitation under this

subsection.

28 U.S.C. § 2244( d)(2).

In the pending case, Petitioner's conviction became

final on November 19, 1997, when the time for filing a direct

appeal in state court expired. See M.C.R. 7.204(A)(2) &

7.205(F). Therefore, absent state collateral review, Petitioner

was required to file his petition for a writ of habeas corpus by

November 19, 1998, to comply with the one-year limitations

period. Petitioner sought state collateral review of his

conviction. However, on November 19, 1997, the date the

limitations period commenced, Petitioner had no application

for collateral review pending. He did not file his motion for

C-4

relief from judgment until January 12,2001. Thus, the

limitations period commenced on November 19, 1997, and

continued to run, uninterrupted, until it expired on November

19, 1998.

Petitioner's motion for relief from judgment was not

filed until over two years after the limitations period expired

and, consequently, did not serve to toll the limitations period.

Petitioner fails to allege that there existed any impediment to

his filing a timely application, that his claim involves a

newly-recognized constitutional night or newly-discovered

facts, or that he is actually innocent. Therefore, Petitioner has

failed to present any circumstances which would warrant

equitable tolling of the limitations period.

Accordingly, Petitioner's application f6r a writ of

habeas corpus ts barred by the one-year statute of] imitations.

IV. Conclusion

For the foregoing reasons, the Court concludes that the

habeas corpus petition was filed outside the one-year

limitations period prescribed in 28 U.S.C. § 2244 (d)(1)(A).

Further, the Court concludes that Petitioner has failed to

establish that he 1s entitled to equitable tolling of the

limitations period.

Accordingly, IT IS ORDERED that the Respondent's

Motion for Summary Disposition and Dismissal of Petition

for Writ of Habeas Corpus is GRANTED.

IT IS FURTHER ORDERED that the petition fora

writ of habeas corpus is DISMISSED WITH PREJUDICE

pursuant to 28 U.S.C. § 2244(d)(1)(A).

/s/ Arthur J. Tarnow

ARTHUR J. TARNOW

UNITED STATES DISTRICT JUDGE

DATE: _ February 26, 2004

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

JUDGMENT,

FILED FEBRUARY 26, 2004

D-1 through D-2

‘UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JASON JAGODKA,

Petitioner, Case Number: 03-72267

V. HONORABLE ARTHUR J. TARNOW

BLAINE C. LAFLER,

Respondent.

JUDGMENT

The above entitled matter having come before the

Court on a Petition for Writ of Habeas Corpus, Honorable

Arthur J. Tarnow, a United States District Judge, presiding,

and in accordance with the Memorandum Opinion and Order

entered on February 26, 2004.

IT IS ORDERED AND ADJUDGED that the

Petition for Habeas Corpus is DISMISSED WITH

PREJUDICE.

Dated at Detroit, Michigan, this 26" Day of February,

2004.

D-]

DAVID J. WEAVER

CLERK OF THE COURT

BY: _/s/ Cathe A. Pickles

Deputy Clerk

Approved:

ARTHUR J. TARNOW

ARTHUR J. TARNOW

UNITED STATES DISTRICT JUDGE

D-2