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Davis v. Woods

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

August 23, 2017

DEONTAE TRAVOHN DAVIS, Petitioner,
v.
JEFFREY WOODS, Respondent,

          OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE SEAN F. COX UNITED STATES DISTRICT JUDGE.

         Deontae Travohn Davis, (“petitioner”), confined at the Kinross Correctional Facility in Kincheloe, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his convictions for conspiracy to commit first-degree murder, Mich. Comp. Laws, §§ 750.157a; 750.316; seven counts of attempted murder, Mich. Comp. Laws, § 750.91; one count of placing offensive or injurious substances in or near real or personal property, Mich. Comp. Laws, § 750.209(1)(b); one count of conspiracy to commit arson of a dwelling house, Mich. Comp. Laws, §§ 750.157a; 750.72; and one count of arson of a dwelling house, Mich. Comp. Laws, § 750.72. For the reasons that follow, the petition for writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted of the above offenses following a jury trial in the Saginaw County Circuit Court, in which he was tried jointly with several co-defendants. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals's opinion, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

This case arises from events that occurred on December 10, 2007, in Saginaw, Michigan. According to the testimony of witnesses, including that of Darell Hewitt, who agreed to testify “truthfully and completely ... about the events that occurred December 10th, 2007, ”[1] he, defendant, Caprice Mack, Dquan Favorite, Arnell Johnson, Jeremy Williamson and Deshawn Christopher were drinking and playing games at a house on Sanford Street when Tonya Wilson's car was burned. Travis Crowley[2] testified that his girlfriend, April Johnson, called him and told him that her mom's car “got blew up.” Crowley said that Mack got on the phone and told him that “some boys had blew up Tonya['s] car, so ... they said that they was gonna take care of it.”
According to Hewitt, after Wilson's car burned, defendant and Favorite discussed retaliating against persons at a duplex located at 1622 Farwell Street in Saginaw because they thought Ronell Hinley had burned the car. Hewitt said that the group planned “to set the [Farwell] car on fire” and “to shoot anybody that come [sic] out of the house.” Hewitt testified, however, that there was no agreement to set fire to the house or to kill anyone.
The evidence indicated that defendant, Hewitt, Favorite, Mack, Johnson and Williamson went to the house at Farwell to set the car on fire, but they failed to successfully do so. The men returned to the house on Sanford and then defendant, Hewitt, Favorite, Mack and Christopher made a second trip to the Farwell house. Defendant and Mack went into the garage with containers of gasoline and then ran out. This time, the car in the Farwell house garage was set on fire. There was evidence that Hewitt and Favorite had guns and that as the fire at the Farwell house spread from the garage to the house, people began to leave the house, and Hewitt and Favorite shot at the people as they left.
Defendant, Favorite, and Mack, who were all tried together, moved for a directed verdict on all counts. Defendant argued that Hewitt's testimony, in a light most favorable to the prosecutor, showed that there was a plan to burn a car in the Farwell house's garage. Defendant argued that this was insufficient to support a charge of attempted murder or conspiracy to commit first-degree murder. The trial court, concluding that the combination of starting a house on fire at 2:00 a.m. and shooting at people as they exited the house “establish[ed] evidence of attempt to murder, ” denied the motion for directed verdict as to all three defendants. On July 2, 2009, defendant moved for a new trial on the basis of newly discovered evidence, the evidence being an affidavit, purportedly from Hewitt, wherein Hewitt claims that he lied at trial to save himself, and that defendant “is innocent of all charges.” The trial court denied the motion without an evidentiary hearing, and this appeal ensued.

People v. Davis, No. 290131, 2010 WL 2507029, * 1 (Mich.Ct.App. June 22, 2010).

         Petitioner's conviction was affirmed on appeal. Id.

         The Michigan Supreme Court remanded the case to the Michigan Court of Appeals for consideration of an issue raised by petitioner but not addressed in that court's opinion, namely, whether the circuit court erroneously allowed the statement of petitioner's co-defendant to be introduced into evidence through the preliminary examination testimony of another witness. People v. Davis, 488 Mich. 946, 790 N.W.2d 401 (2010).

         On remand, the Michigan Court of Appeals again affirmed petitioner's conviction. People v. Davis, No. 290131, 2011 WL 921656 (Mich.Ct.App. March 17, 2011)(On Remand). The Michigan Supreme Court subsequently denied petitioner leave to appeal. People v. Davis, 489 Mich. 993, 800 N.W.2d 78 (2011).

         Petitioner subsequently filed a motion for relief from judgment, which was denied by the trial court. People v. Davis, No. 08-0320280-FC (Saginaw Cty. Cir. Ct., Sept. 7, 2012); reconsideration den. (Saginaw Cty. Cir. Ct. Oct. 3, 2012). The Michigan appellate courts denied petitioner leave to appeal. People v. Davis, No. 314940 (Mich.Ct.App. Sept. 6, 2013); lv. den. 495 Mich. 918; 840 N.W.2d 361 (2013).

         Petitioner filed a habeas petition, which was held in abeyance to permit petitioner to return to the state courts to exhaust additional claims.

         Petitioner filed a second motion for relief from judgment, which was denied. People v. Davis, No. 08-0320280-FC (Saginaw Cty. Cir. Ct., Apr. 7, 2015). The Michigan appellate courts denied leave to appeal. People v. Davis, No. No. 328287 (Mich.Ct.App. Oct. 14, 2015); lv. den. 500 Mich. 853, 883 N.W.2d 751 (2016).

         On October 12, 2016, this Court granted petitioner's motion to reopen the habeas case and to amend the petition. In his amended petition, petitioner seeks relief on the following grounds:

I. There was insufficient evidence to convict the Petitioner of conspiracy to commit first-degree murder, in doing so violated Petitioner [sic] Fourteenth Amendment constitutional right to due process.
II. There was insufficient evidence to convict the Petitioner of attempted murder, in doing so violated Petitioners [sic] Fourteenth Amendment constitutional rights to due process.
III. The trial court violated Petitioners [sic] Fifth Amendment constitutional rights when allowing multiple counts and charges without new (separate) elements, thus violating Petitioners [sic] constitutional protection against double jeopardy.
IV. The cumulative effect of all these errors violated Petitioners [sic] Fourteenth Amendment constitutional rights to a fair trial, simply because the errors were so prejudicial they clearly denied Petitioner a fair trial.
V. The trial court violated Petitioners [sic] Sixth Amendment constitutional rights to a public trial, when the trial court concluded vior [sic] dire of the prospective jurors in secrecy in a star chamber like atmosphere, to the extent that the proceeding was conducted outside of the presence of the general public, resulting in structural error.
VI. The circuit court was divested of jurisdiction to try Petitioner for the crime in question because the bind over was predicated sole [sic] upon perjured testimonial evidence presented during the preliminary examination by the prosecutors [sic] key witnesses. which [sic] constitutes a radical jurisdictional defect.
VII. The trial court violated Petitioners [sic] Fourteenth Amendment right to due process, as well abused its discretion when his instruction to the jury vouched for prosecution witness Darell Hewitts [sic] credibility was erroneous.
VIII. The trial court violated Petitioners [sic] Fourteenth Amendment right to due process, as well abused its discretion by never addressing Petitioner [sic] request for a handwriting expert. In doing so denied Petitioner [sic] rights to present defense, rendering Petitioner unfair trial [sic].
IX. The trial court violated Petitioners [sic] Fourteenth Amendment constitutional rights to a fair trial as well abused its discretion by erroneous charge to the jury.
X. The trial court violated Petitioners [sic] Sixth Amendment constitutional rights to effective assistance of counsel, in doing so denied Petitioners [sic] Fourteenth Amendment constitutional rights to due process, and abused its discretion by denying Petitioners [sic] motion for substitution of counsel.
XI. Petitioner was denied his Sixth Amendment constitutional rights to effective assistance of counsel, when counsel failed to adequately perform his professional responsibilities as counsel by failing to engage in any form of investigatory interviews of the prosecutions [sic] case to any meaningful adversarial testing, before or at trial.
XII. Petitioner was denied his Sixth Amendment constitutional rights to effective assistance of appellant counsel, when counsel failed to adequately investigate Petitioners [sic] appeal, in which counsel also failed to raise effective issues.
XIII. Petitioner was denied his Fourteenth Amendment constitutional rights to a fair trial when the prosecutor plead [sic] to the jury to commit a “civic duty” by returning a guilty verdict upon Petitioner.
XIV. Petitioner was denied his Fourteenth Amendment constitutional rights to a fair trial when the prosecutor lied to the jury stating Petitioner threatened to kill prosecution witness.
XV. Petitioner was denied his Fourteenth Amendment constitutional rights to a fair trial when the prosecutor inflamed the passion of the jury during closing arguments.
XVI. Petitioner was denied his Fourteenth Amendment constitutional rights to a fair trial when the prosecutor deliberately offered unsworn testimony as evidence, during direct-examination of Travis Crowley.
XVII. Petitioner was denied his Fourteenth Amendments [sic] constitutional rights to a fair trial when the prosecution commented on Petitioners [sic] silence, in doing so violated Petitioners [sic] Fifth Amendment constitutional rights to stand mute.
XVIII. Petitioner was denied his Fourteenth Amendment constitutional rights to a fair trial when the prosecution inserted erroneous arguments that made the jury divert from evidence at trial, to speculating on the improper statements as evidence. Also insert additional inculpatory evidence, which was not evidence at trial, misstated the evidence, mislead the jury with erroneous statements, making himself an unsworn witness.
XIX. Declaring Travis Crowley unavailable after he had already testified on direct examination, thus limiting Petitioner [sic] ability to cross-examine his testimony he had made during direct, in doing so violated Petitioner [sic] right to crossexamination of witness against him, which is secured by the Confrontation Clause of the Sixth Amendment's [sic].
XX. Petitioner was denied his Sixth Amendment right to confrontation where prosecution witness Crowleys [sic] preliminary examination testimony was admitted at trial. However, Petitioner did not have an opportunity to fully and adequately cross-examine witness Crowley at preliminary examination.
XXI. The trial court violated Petitioners [sic] Sixth Amendment rights to confrontation when allowing the statement of Petitioners [sic] codefendant Caprice Mack, to be introduced into evidence through the preliminary examination testimony of Travis Crowley.
XXII. The trial court violated Petitioners [sic] due process rights secured by the Fifth and Fourteenth Amendments of the Constitution, when denying Petitioners Sixth Amendment right to Confrontation Clause.

         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(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.

         A decision of a state court 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. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11. “[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.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or...could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id.

         “[I]f this standard is difficult to meet, that is because it was meant to be.” Harrington, 562 U.S. at 102. Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar federal courts from relitigating claims that have previously been rejected in the state courts, it preserves the authority for a federal court to grant habeas relief only “in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with” the Supreme Court's precedents. Id. Indeed, “Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal.” Id. at 102-03 (citing Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979))(Stevens, J., concurring in judgment)). Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the state court's rejection of his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         The Court recognizes that petitioner's seventh through eighteenth claims were raised on his his first-post-conviction motion for relief from judgment. The trial judge denied these claims by stating: “Defendant raises a number of issues none of which have merit.” People v. Davis, No. 08-0320280-FC, * 2 (Saginaw Cty. Cir. Ct., Sept. 7, 2012). The Michigan appellate courts denied petitioner leave to appeal in form orders pursuant to Mich.Ct.R 6.508(D). People v. Davis, No. 314940 (Mich.Ct.App. Sept. 6, 2013); lv. den. 495 Mich. 918; 840 N.W.2d 361 (2013). The Sixth Circuit has held that the form order used by the Michigan appellate courts to deny leave to appeal in this case are unexplained because the citation to Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a procedural default or a rejection on the merits. See Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir.2010) (en banc). Consequently, under Guilmette, the Court must “look through” the unexplained orders of the Michigan appellate courts' decisions to determine the basis for the denial of state post-conviction relief.

         The trial judge rejected petitioner's claims without citing to Rule 6.508 or any other procedural bar when he denied the motion for relief from judgment. This Court therefore presumes that the trial court adjudicated these claims on the merits for purposes of invoking the AEDPA's deferential standard of review. See Harrington v. Richter, 562 U.S. at 99 (stating that, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state law procedural principles to the contrary”). More importantly, the trial judge explicitly indicated that he was rejecting petitioner's claims on the merits, albeit in summary fashion. The trial court's order is thus entitled to AEDPA deference. See Werth v. Bell, 692 F.3d 486, 492-94 (6th Cir. 2012).

         Finally, the Court notes that petitioner filed a petition raising twenty two claims. The Sixth Circuit observed: “When a party comes to us with nine grounds for reversing the district court, that usually means there are none.” Fifth Third Mortgage v. Chicago Title Ins., 692 F.3d 507, 509 (6th Cir. 2012).

         III. Discussion

         A. Petitioner concedes that two of his claims are non-cognizable.

         In his reply brief, petitioner concedes that his fourth claim alleging cumulative error and his sixth claim challenging the improper bindover to circuit court are non-cognizable on habeas review. See Reply Brief, pp. 7-8, 12. A habeas petitioner can withdraw a claim from a habeas petition as long as he or she does so knowingly, voluntarily, and intelligently. Daniel v. Palmer, 719 F.Supp.2d 817, 828 (E.D. Mich. 2010); rev'd on other grds sub nom. Daniel v. Curtin, 499 F. App'x. 400 (6th Cir. 2012). This Court construes petitioner's concession as a request to withdraw these two claims from consideration.

         B. Claims # 3, 5, 21, and 22. The procedurally defaulted claims.

         The Court will discuss petitioner's procedurally defaulted claims first for judicial economy and clarity. Respondent claims that petitioner's third, fifth, twenty first and twenty second claims are procedurally defaulted for various reasons.

         When the state courts clearly and expressly rely on a valid state procedural bar, federal habeas review is also barred unless petitioner can demonstrate “cause” for the default and actual prejudice as a result of the alleged constitutional violation, or can demonstrate that failure to consider the claim will result in a “fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). If petitioner fails to show cause for his procedural default, it is unnecessary for the court to reach the prejudice issue. Smith v. Murray, 477 U.S. 527, 533 (1986). However, in an extraordinary case, where a constitutional error has probably resulted in the conviction of one who is actually innocent, a federal court may consider the constitutional claims presented even in the absence of a showing of cause for procedural default. Murray v. Carrier, 477 U.S. 478, 479-80 (1986). However, to be credible, such a claim of innocence requires a petitioner to support the allegations of constitutional error with new reliable evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995).

         The Court discusses the procedural defaults in the chronological order that they occurred.

         Respondent contends that petitioner's twenty first and twenty second claims are procedurally defaulted because petitioner failed to preserve the issues by objecting at trial and as a result, the Michigan Court of Appeals ...


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