United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS AND GRANTING A CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS
J. Tarnow Senior United States District Judge
Terreal Davis, (“petitioner”), confined at the
Macomb Correctional Facility in New Haven, Michigan, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, through his attorney Gerald E. Lorence.
Petitioner challenges his conviction for second-degree
murder, M.C.L.A. 750.317, two counts of unlawful
imprisonment, M.C.L.A. 750.349b, and possession of a firearm
in the commission of a felony (felony-firearm), M.C.L.A.
750.227b. For the reasons that follow, the petition for writ
of habeas corpus is DENIED WITH PREJUDICE.
convictions arise out of an incident that happened in
Detroit, Michigan on October 23, 2012. Angela Black and her
boyfriend Deangelo Applewhite met with petitioner to have him
repair something on Mr. Applewhite's car. Petitioner at
some point took out a gun and stated “you know what he
did” and fired a shot at the ceiling. Petitioner
ordered Mr. Applewhite and Ms. Black into the trunk of a car.
Mr. Applewhite opened the trunk, escaped, and began running.
Petitioner's girlfriend Sabrina Wakefield was driving
another car and she used it to drive into Mr. Applewhite, who
rolled off of the hood and continued running. Petitioner
killed Mr. Applewhite by shooting him three times as he was
attempting to climb a fence. Ms. Wakefield testified against
petitioner in exchange for being allowed to plead guilty to
second-degree murder with a sentence agreement of 10 to 25
was originally charged with first-degree murder, two counts
of unlawful imprisonment, one count of torture, and
felony-firearm. At petitioner's first trial, the jury
acquitted him of first-degree murder and the torture charge,
but informed the judge that they could not reach a verdict on
the remaining counts, including the lesser included offense
of second-degree murder on the original first-degree murder
charge. Over defense counsel's objection, the judge
declared a mistrial.
a re-trial, petitioner was convicted of second-degree murder
and the remaining charges.
conviction was affirmed but the case was remanded for
re-sentencing. People v. Davis, No. 325565, 2016 WL 3005610
(Mich. Ct. App. May 24, 2016), lv. den. 500 Mich. 882, 886
N.W.2d 441 (2016).
Petitioner seeks a writ of habeas corpus on the following
A. THE TRIAL COURT DENIED THE PETITIONER HIS RIGHT TO A FAIR
TRIAL BY DENIGRATING DEFENSE COUNSEL AND BY HOLDING HER IN
CONTEMPT IN FRONT OF THE JURY.
B. THE PETITIONER WAS RETRIED IN VIOLATION OF HIS RIGHT TO BE
FREE FROM DOUBLE JEOPARDY WHEN THE TRIAL COURT DECLARED A
MISTRIAL ABSENT MANIFEST NECESSITY.
Standard of Review
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;
(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.
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)).
Court notes that the Michigan Court of Appeals reviewed and
rejected petitioner's first claim under a plain error
standard on the ground that petitioner failed to preserve the
issue as a constitutional claim at the trial court level. The
AEDPA deference applies to any underlying plain-error
analysis of a procedurally defaulted claim. See Stewart v.
Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017).
Claim # 1. The ...