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Davis-Rowland v. Harry

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

January 12, 2018

SHIRLEE HARRY, Respondent.

          Honorable Janet T. Neff


          Ellen S. Carmody United States Magistrate Judge.

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Travis Lee Davis-Rowland is presently on parole. On November 14, 2013, an Ingham County Circuit Court jury, found Petitioner guilty of assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84. On December 18, 2013, the court imposed a sentence of 42 to 180 months' imprisonment. Petitioner was paroled on September 28, 2017. He is scheduled to be discharged from supervision on December 28, 2018.

         On February 7, 2017[1], Petitioner filed his habeas corpus petition raising 7 grounds for relief, as follows:

I. There was insufficient evidence to convict Petitioner of assault with intent to commit great bodily harm less than murder.
II. Testimony about the Petitioner's alleged lack of cooperation with law enforcement was inadmissible and denied Petitioner a fair trial.
III. Petitioner was denied a fair trial by the late endorsement of Laurie Blevins as a witness.
IV. The jury was improperly instructed by the trial court denying Petitioner the right to a fair trial.
V. The case was submitted to the jury on the basis of alternate theories that denied Petitioner due process and fundamental fairness.
VI. Petitioner was denied the right to effective assistance of counsel.
VII. The prosecutor suppressed exculpatory evidence and exceeded the bounds of a proper argument based on the evidence.

         (Pet., ECF No.1, PageID.6-15.) Respondent has filed an answer to the petition (ECF No. 9) stating that the grounds should be denied because they are unexhausted, non-cognizable, procedurally defaulted, and/or meritless. Upon review and applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find that the grounds are meritless. Accordingly, I recommend that the petition be denied.


         I. Factual allegations

         During the early morning hours of May 22, 2013, Amber Fountain, Anna Karpinsky, Xavier Claudio (Anna's boyfriend), Christopher Claudio (Xavier's brother), and Petitioner were drinking and smoking marijuana in Anna's upstairs apartment on South 8th Street in Lansing, Michigan. (Trial Tr. I, ECF No. 10-5, PageID.258-259.) Amber, Anna, Xavier, and Petitioner began playing the card game “Spades.” (Id., PageID.259-260.) Amber accused Petitioner of cheating. An argument ensued. (Id., PageID.260.) Anna, and then Amber, told Petitioner to leave. (Id.) On Petitioner's way out the door, he threatened Amber: “Wait until you get outside.” (Trial Tr. II, ECF No. 10-6, PageID.285-286, 294, 298.) Amber took a step out the door after Petitioner.[1] Anna claims Petitioner must have then grabbed Amber and either threw her or pulled her down the stairway. (Id., PageID.285-286.) Amber suffered brain injuries, a fractured skull, lacerations, and abrasions. (Id., PageID.273-277.)

         Although Anna, Xavier, and Claudio were all a short distance away when Amber went down the stairs, none of them actually saw Petitioner lay a hand on her. (Id., PageID.288, 294-295, 299.) Based on Amber's movement, however, each of the witnesses surmised that Amber had not fallen; rather, she had been pulled (or shoved) down the stairs. (Id.)

         Petitioner did not testify. Indeed, after the prosecution rested, the defense rested as well. Defense counsel argued that it was just as likely that Amber, who was unquestionably drunk, went out the door to confront Petitioner and then fell down the stairs.

         The prosecutor focused on Petitioner's behavior after the incident to support his theory that Petitioner caused Amber's tumble down the stairs. All of the witnesses testified that when they came out of the apartment they saw Amber at the base of the stairs and Petitioner fleeing around the corner of the house. (Id., PageID.287, 295, 300.) One of Petitioner's neighbors, Laurie Blevins, testified that Petitioner had asked her to communicate an apology to the people at Anna's apartment for what had happened on the stairway.[2] (Id., PageID.282-283.)

         Moreover, when the police located Petitioner at his home a few days later, Petitioner would not come out to speak with them. (Trial Tr. I, ECF No. 10-5, PageID.248.) Instead, he poked his head out of an upstairs window. (Id., PageID.249.) Officers asked if Petitioner was Travis Davis-Rowland. (Id.) The officers informed Petitioner they were investigating an assault. (Id.) Petitioner responded by posing hypothetical questions: “Well, what if I was Travis Rowland?” and “What if I was involved in an assault?” and “[W]here did this happen at?” (Id.) Ultimately Petitioner refused to come to the door, so the police officers left. (Id., PageID.249-250.) The prosecutor argued that those were not the questions one would ask if Amber had simply slipped and fallen down the stairs on her own. (Trial Tr. II, ECF No. 10-6, PageID.307, 311.) Instead, Petitioner's demeanor and conduct in response to the investigators demonstrated a consciousness of guilt. (Id.)

         The jury deliberated for about an hour before returning its verdict.

         On direct appeal to the Michigan Court of Appeals, Petitioner's initial brief, filed with the assistance of counsel, raised the first three of his seven habeas issues. Petitioner raised the remaining four issues in a Standard 4 brief. By unpublished opinion issued April 16, 2015, the court of appeals affirmed Petitioner's conviction and sentence. (Mich. Ct. App. Op., ECF No. 10-8, PageID.329-334.)

         Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the seven issues he had raised in the court of appeals. Petitioner was permitted to amend his application to include an issue regarding ineffective assistance of appellate counsel. By order entered November 24, 2015, the Michigan Supreme Court denied leave to appeal.

         Petitioner did not file a petition for a writ of certiorari in the United States Supreme Court. Instead, he filed his habeas corpus petition in this Court.

         II. AEDPA standard

         The AEDPA “prevents federal habeas ‘retrials'” and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: “(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). This standard is “intentionally difficult to meet.” Woods v. Donald, 575 U.S. __, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).

         The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the “clearly established” holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Lopez v. Smith, 135 S.Ct. 1, 3 (2014); Bailey, 271 F.3d at 655. Moreover, “clearly established Federal law” does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

         A federal habeas court may issue the writ under the “contrary to” clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). “To satisfy this high bar, a habeas petitioner is required to ‘show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Woods, 135 S.Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, “[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” White v. Woodall, 572 U.S.___, 134 S.Ct. 1697, 1705 (2014) (internal quotations omitted).

         The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

         III. Sufficiency of the evidence (Issue I)

         A § 2254 challenge to the sufficiency of the evidence is governed by the standard set forth by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319 (1979), which is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” This standard of review recognizes the trier of fact's responsibility to resolve reasonable conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Id. Issues of credibility may not be reviewed by the habeas court under this standard. See Herrera v. Collins, 506 U.S. 390, 401-02 (1993). Rather, the habeas court is required to examine the evidence supporting the conviction, in the light most favorable to the prosecution, with specific reference to the elements of the crime as established by state law. Jackson, 443 U.S. at 324 n.16; Allen v. Redman, 858 F.2d 1194, 1196-97 (6th Cir. 1988).

         The Jackson v. Virginia standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Moreover, because both the Jackson standard and AEDPA apply to Petitioner's claims, “‘the law commands deference at two levels in this case: First, deference should be given to the trier-of-fact's verdict, as contemplated by Jackson; second, deference should be given to the Michigan [Court of Appeals'] consideration of the trier-of-fact's verdict, as dictated by AEDPA.'” Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc) (quoting Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008)). This standard erects “a nearly insurmountable hurdle” for petitioners who seek habeas relief on sufficiency-of-the-evidence grounds. Id. at 534 (quoting United States v. Oros, 578 F.3d 703, 710 (7th Cir. 2009)).

         The Michigan Court of Appeals applied the Jackson standard when it rejected Petitioner's challenge to the sufficiency of the evidence:

Defendant first argues that the evidence was insufficient to support his conviction of assault with intent to do great bodily harm because none of the witnesses saw him pull Fountain down the stairs. We review de novo a challenge to the sufficiency of the evidence. People v Ericksen, 288 Mich.App. 192, 195; 793 N.W.2d 120 (2010). In reviewing a sufficiency claim, we view the evidence in a light most favorable to the prosecution and consider whether a rational trier of fact could find that the defendant committed the crime charged beyond a reasonable doubt. People v Tennyson, 487 Mich. 730, 735; 790 N.W.2d 354 (2010). Circumstantial evidence, and the reasonable inferences arising from it, may be sufficient to support a conviction beyond a reasonable doubt. People v Hardiman, 466 Mich. 417, 429; 646 N.W.2d 158 (2002).
Although no witnesses directly observed defendant pull Fountain down the stairs, a rational jury could find that he did so on the basis of the evidence presented. Witnesses testified that they heard defendant tell Fountain, “Wait until you come outside, ” following an argument. Defendant argues that Fountain could have simply fallen down the stairs because she was intoxicated. However, Xavier and Cristobel both testified that Fountain resisted an apparent tug and leaned backwards before she fell down the stairs. Fountain testified that she remembered someone pulling her hair before rolling down the stairs. Karpinski, Xavier, and Cristobel all testified that they saw defendant run from the scene while Fountain's body was lying at the bottom of the stairs.
Defendant argues that the prosecutor had to prove two theories because Fountain testified that she was pulled back by her hair while Xavier and Cristobel testified that Fountain was pulled forwards. Regardless of the direction of the pull, the evidence was sufficient to demonstrate that defendant's actions initiated Fountain's fall. Because a rational jury could reasonably infer from the evidence presented that defendant intended to cause Fountain great bodily harm, and that his actions caused her injuries, the evidence was sufficient to support his conviction.

(Mich. Ct. App. Op., ECF No. 10-8, PageID.329-330.)

         Petitioner contends that the Michigan Court of Appeals oversimplified Petitioner's argument. Petitioner claims his point was not that there was a fundamental inconsistency between the direction of the pull depending on which witness's testimony the jury credited, but that there were myriad irreconcilable inconsistencies that called into question the credibility of each of the accounts, and precluded reliance on the testimony of the victim or any of the witnesses to prove the necessary elements of the offense beyond a reasonable doubt. Petitioner's argument is premised on the notion that the credibility of a witness is a binary issue: a witness is either credible or incredible. If the jury credits one witness's testimony it must discredit all of another witness's testimony if there are any inconsistencies between the two accounts.

         Petitioner is correct in noting many inconsistencies between the stories told by the victim and the other three witnesses at trial, as well as differences between the testimony provided at trial and the preliminary examination. Petitioner suggests one cannot just pick and choose credible details from the varying accounts; but, he is wrong. It is the jury's job to pick and choose, to resolve those inconsistencies. Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (“It is the province of the factfinder to weigh the probative value of the evidence and resolve any conflicts in testimony.”); Tanner v. Yukins, 867 F.3d 661, 672 (6th Cir. 2017) (“[W]e do not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our judgment for that of the jury . . . we must uphold the jury verdict if any rational trier of fact could have found the defendant guilty after resolving all disputes in favor of the prosecution.”)

         Did the Petitioner made sexual advances on the victim; when did the dispute between them first arise; did the card game rules dispute occur before or while they were playing cards; what was said, when, and by whom; who was in the room; what were the weather conditions; how intoxicated was the victim; was the door open or closed; which direction was the victim pulled; and where was Petitioner when the witnesses exited the apartment-those were all points of inconsistency the jurors were called upon to consider. Nonetheless, as the Michigan Court of Appeals noted, no matter how the jurors might have resolved those inconsistencies, there was sufficient evidence presented that the jury could “reasonably infer . . . that defendant intended to cause [Amber] great bodily harm, and that his actions caused her injuries.” (Mich. Ct. App. Op., ECF No. 10-8, PageID.330.) That determination is not contrary to, nor is it an unreasonable application of, the Jackson standard; and, the factual determinations upon which the conclusion is based are reasonable. Accordingly, Petitioner's challenge to the sufficiency of the evidence is without merit.

         IV. Petitioner's refusal to cooperate with the police

         Petitioner argues that it was improper for the trial court to admit evidence regarding his refusal to cooperate with police when they visited Petitioner's home. The prosecutor elicited testimony from Officer Bryan Curtis regarding the police visit to Petitioner's home on May 27, 2013. Officer Curtis testified that he and Sergeant Cressman went to Petitioner's front door and knocked. (Trial Tr. I, ECF No. 10-5, PageID.248-249.) He posed questions to Petitioner when Petitioner poked his head out of an upstairs window. (Id.) Officer Curtis testified that Petitioner refused to answer questions and refused to come to the door. (Id.) The prosecutor never asked about Petitioner's invocation of his right to remain silent or his right to counsel; defense counsel did. (Id., PageID.249) (“Q: Okay. And he did at some point mention to you that he would talk to you if a lawyer was present, correct? A: Yeah. He actually-”). The officer's response was interrupted by an objection from the prosecutor. Following a bench conference, the trial court struck the counsel's question and the officer's response and ordered the jury not to consider it. (Id.) Petitioner's request for counsel, if indeed there were such a request, was never mentioned again.

         There is no testimony of record regarding the entire course of the conversation between police and Petitioner. Petitioner, however, provided his recollection of the exchange in his application for leave to appeal filed in the Michigan Supreme Court. (ECF No. 10-9, PageID.437-439.) Petitioner's unsworn account indicates that the officers questioned Petitioner only until “he asked for a lawyer and [then] they left.” (Id., PageID.437.) Petitioner even quotes the exchange:

Police: Is your name Travis?
Petitioner: Why?
Police: Can you show us some ID?
Petitioner: You know who I am, you're at my house. Tell me what you want.
Police: We need to verify who you are first, just come outside.
Petitioner: Absolutely not.
Police: Why won't you come out?
Petitioner: Because sergeant, you are not my friends.
Police: Can you just come to the door and show us your ID?
Petitioner: Let's say I am who you're looking for. What would you want to talk about?
Police: Are you Travis?
Petitioner: Yes, now what do you want?
Police: Can we see some ID?
Petitioner: I'm going to close the window.
Police: Can you tell us anything about an assault that ...

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