Thomas Maclean v. Kenneth McKee , 562 F. App'x 409 ( 2014 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0266n.06
No. 13-1365
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Apr 09, 2014
DEBORAH S. HUNT, Clerk
THOMAS MACLEAN, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
KENNETH McKEE, )
)
Respondent-Appellee. )
Before: BOGGS, SILER, and GIBBONS, Circuit Judges.
PER CURIAM. On February 27, 1998, shortly before 7:13 p.m., Thomas B. Maclean,
driving his car with a blood-alcohol level well over the legal limit, was involved in an auto
accident that killed William Shand. Over an hour after the accident, Maclean’s blood-alcohol
level was .28. In 2006, a jury convicted Maclean of second-degree murder and of operating a
vehicle while intoxicated causing death.
The trial court denied Maclean’s motion to dismiss the charges on speedy-trial grounds.
The Michigan Court of Appeals affirmed Maclean’s conviction, People v. Maclean, No. 270525,
2007 WL 2713431, at *7 (Mich. Ct. App. Sept. 18, 2007), and the Michigan Supreme Court
denied leave to appeal, People v. Maclean, 746 N.W.2d 101 (Mich. 2008). A federal district
court denied Maclean’s petition for a writ of habeas corpus, determining that the Sixth
Amendment speedy-trial right only attaches at arrest and that the time between Maclean’s
August 2005 arrest and the start of his trial did not constitute a speedy-trial violation. MacLean
1
v. McKee, No. 2:09-CV-12992, 2012 WL 2803756, at *6, *10 (E.D. Mich. July 10, 2012).1 The
district court also found that the state court’s decision that the prosecution did not cause the pre-
arrest delay to gain a tactical advantage was reasonable. Id. at *8. The district court, however,
granted Maclean a certificate of appealability (COA) as to the claim that the pre-arrest delay
constituted a violation of Maclean’s Fifth Amendment due-process rights. Id. at *10.
On appeal, Maclean’s only argument is that the delay between the accident and the start
of the trial violated his right under the Speedy Trial Clause of the Sixth Amendment. See U.S.
Const. amend. VI; Appellant Br. 24–36. The district court did not grant Maclean a COA as to a
speedy-trial claim. The district court only granted Maclean a COA as to his “claim that his right
to due process was violated by the pre-arrest delay.” Maclean, 2012 WL 2803756, at *10.
Maclean did not seek an expansion of the COA. “[A] court of appeals will address only the
issues which are specified in the certificate of appealability.” Searcy v. Carter, 246 F.3d 515,
518 (6th Cir. 2001). Because Maclean’s speedy-trial claim was not certified for appeal, it is not
properly before this court.2 The district court issued a thorough, well-reasoned opinion. We
have held oral argument and conducted a de novo review of the district court’s factual statements
and legal conclusions. We adopt its reasoning and AFFIRM the judgment.3
1
The proper capitalization of Maclean’s last name is unclear. We employ the capitalization used
in Maclean’s brief, which is also consistent with the caption in this case.
2
The claim is also meritless.
3
Because the COA requirement is not jurisdictional, we affirm rather than dismiss the appeal for
lack of jurisdiction. See Gonzalez v. Thaler, 132 S. Ct. 641, 650 (2012).
2