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Davis v. McKee

United States District Court, E.D. Michigan, Southern Division

April 24, 2015

DAVID DAVIS, Petitioner,
v.
KENNETH McKEE, Respondent.

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING CERTIFICATE OF APPEALABILITY

ROBERT H. CLELAND, District Judge.

Petitioner David Davis filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, currently incarcerated at the Bellamy Creek Correctional Facility in Ionia, Michigan, challenges his convictions for second-degree murder, felony firearm, and being a fourth-time habitual offender. He raises several sentencing-related claims and an ineffective assistance of counsel claim. Respondent has filed a response arguing that the claims are not cognizable on federal habeas review and/or meritless. For the reasons set forth, the court will deny the petition.

I. BACKGROUND

Petitioner's convictions arise from the shooting death of his estranged wife Marian Easter and the shooting of Marian's mother Jo Ann Easter in 2008. Jo Ann Easter testified at the preliminary examination that, on the evening of September 9, 2008, Petitioner came to her house in the City of Flint looking for her daughter Marian. Jo Ann told Petitioner he was not welcome in her home and shut and locked the door. Petitioner knocked down the front door. Jo Ann called 911 and Petitioner left.

Jo Ann asked the 911 operator to send police because she believed Petitioner would return and that he would harm her and her daughter. Police did not respond. Jo Ann called 911 again 45 minutes later because she feared Petitioner would return. She was told that there was a high volume of police calls and an insufficient number of officers available to respond.

Jo Ann's daughter returned home at approximately 10:00 p.m. At approximately midnight, as Jo Ann and Marian were watching television, Petitioner returned to the home and again knocked down the door. Petitioner pulled out a gun and started firing. He shot Marian in the chest. Jo Ann attempted to shield her daughter and was shot two or three times in the stomach, in both of her legs, in her arm, her buttocks and her hand. Marian suffered five gunshot wounds, four of which would have been fatal.

Petitioner was charged with first-degree murder, assault with intent to murder, first-degree home invasion, felon in possession of a firearm, and felony firearm. On June 9, 2009, Petitioner pleaded no contest to second-degree murder, felony firearm, and being a four-time habitual offender. The plea agreement allowed Petitioner to be sentenced under the guidelines for manslaughter though he was pleading to seconddegree murder. On July 2, 2009, Petitioner was sentenced to 19 to 55 years' imprisonment for the murder conviction and two years' imprisonment for the felonyfirearm conviction.

Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, raising these claims: (i) OV-5 was incorrectly scored; (ii) trial court failed to consider mitigating evidence; and (iii) the sentence was disproportionate. The Michigan Court of Appeals denied leave to appeal. People v. Davis, No. 298681 (Mich. Ct. App. Sept. 2, 2010). Petitioner sought leave to appeal in the Michigan Supreme Court. The Michigan Supreme Court denied leave to appeal, People v. Davis, 794 N.W.2d 1039 (Mich. 2011), and denied a motion for reconsideration. People v. Davis, 796 N.W.2d 57 (Mich. 2011).

Petitioner filed a motion for relief from judgment in the trial court arguing that his plea was coerced by his attorney's ineffective assistance. The trial court denied the motion. 9/27/11 Order, People v. Davis, No. 08-024059. Petitioner sought leave to appeal the denial in the Michigan Court of Appeals and Michigan Supreme Court. Both state appellate courts denied leave to appeal. People v. Davis, No. 309051 (Mich. Ct. App. June 25, 2013); People v. Davis, 832 N.W.2d 223 (Mich. June 25, 2013).

Petitioner then filed the pending habeas petition. He raises these claims:

I. The trial court unlawfully deprived Davis of his due process, equal protection and other protected rights when it scored 15 points on Offense Variable 5.
II. The trial court unlawfully deprived Davis of his due process, equal protection and other protected rights under the United States and Michigan Constitutions when it failed to take into account all mitigating evidence in sentencing Davis.
III. The trial court unlawfully violated the United States and Michigan Constitutions in sentencing Davis to a prison term of 228-600 months on a habitual offender fourth supplement arising out of the second-degree murder conviction.
IV. Mich. Ct.R. 6.500 ineffective assistance of counsel: (1) Davis was denied the effective assistance of counsel as guaranteed by the United States Constitution Sixth and Fourteenth Amendments and the Michigan Constitution of 1963, art. 1 § 20, where the cumulative effect of trial counsel's errors and lack of diligence in the obtaining of evidence, keeping Davis fully apprised of her efforts or putting the prosecution's case to the test, denied him ...

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