United States District Court, W.D. Michigan, Southern Division
Honorable Janet T. Neff
REPORT AND RECOMMENDATION
S. Carmody United States Magistrate Judge.
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.
February 7, 2017, 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
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
VI. Petitioner was denied the right to effective assistance
VII. The prosecutor suppressed exculpatory evidence and
exceeded the bounds of a proper argument based on the
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.
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. 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.,
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.
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
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. (Id., PageID.282-283.)
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.
jury deliberated for about an hour before returning its
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.)
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.
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.
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).
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).
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
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).
Sufficiency of the evidence (Issue I)
§ 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
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)).
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.)
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.
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
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.
Petitioner's refusal to cooperate with the
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.
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?
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
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