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Davis v. Chapman

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

April 30, 2019

JOVON C. DAVIS, Petitioner,



         Jovon C. Davis, (“Petitioner”), incarcerated at the Thumb Correctional Facility in Lapeer, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for second-degree murder, Mich. Comp. Laws § 750.317; assault with intent to commit murder, Mich. Comp. Laws § 750.83; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; carrying a concealed weapon, Mich. Comp. Laws § 750.227; felony-firearm, Mich. Comp. Laws § 750.227b, and domestic violence, third-offense, Mich. Comp. Laws § 750.81(4). For the reasons stated below, the petition for a writ of habeas corpus is DENIED.

         I. Background

         Petitioner was convicted following a jury trial in the Berrien County Circuit Court.[1] This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant's convictions arise out of the murder of Gary Alilovich and the assault of Heather Britt on January 18, 2013, at the house of Crystal McKenzie in Benton Harbor.
Britt testified that she and defendant had been dating “off and on” for six years and that they lived together. On January 18, 2013, Britt and Alilovich, whom Britt had previously dated, were at McKenzie's house. McKenzie testified that after she and defendant arrived, defendant started to hit Britt in the face with his hands after she pushed him. Alilovich, using words only, tried to stop defendant. Defendant pushed Alilovich, and then started to hit Britt in the face with his fists. Alilovich tried to stop defendant again, telling defendant to “get the fuck back.” McKenzie did not see Alilovich with a knife. According to McKenzie, while she was in the kitchen fighting with Ashley Davis, defendant's cousin, she heard a gunshot in a bedroom. She ran toward the bedroom, and saw defendant pointing a gun at Alilovich. Alilovich was on his knees and begging defendant not to shoot. McKenzie ran out of the bedroom after she saw defendant take a second shot at Alilovich. McKenzie heard a third gunshot when she was outside. Britt's young son, who was in another bedroom, testified that he heard two gunshots and then Alilovich say “please don't do this.” He then heard two more gunshots. According to her son, Britt came into the bedroom; her left chest was bleeding. Defendant also came into the bedroom and started to hit Britt in the face. He then stomped on her face more than once.
Dr. Robert Clark, qualified as an expert in pathology, performed an autopsy on Alilovich. Clark testified that Alilovich had gunshot wounds to the back of his right elbow, the back of his right shoulder, and his head. Clark opined that the cause of death was exsanguination from a gunshot wound to the chest. Alilovich had no wounds that suggested he had been in a fight. Dr. Glen Hastings, qualified as an expert in general and trauma surgery, treated Britt in the emergency room. Hastings testified that Britt had a concussion, four or five fractured ribs on each side of her chest, fractures in the lumbar spine, a fracture of the right orbital bone, and five gunshot wounds, including one to her left breast.
Three bullets were recovered from Alilovich's body, and two were recovered from the bedroom where defendant had stomped on Britt's face. Lieutenant Jeff Crump, qualified as an expert in firearms and tool mark identification, testified that he compared the five bullets to test shots from the .32- caliber revolver that was found in the woods. Crump identified four of the five bullets as having been fired from the revolver, and he could not exclude the revolver as having fired the fifth bullet. The revolver was silver with a black handle, and Britt had previously seen defendant with a silver .32- caliber revolver with a black handle. In his interview, defendant told two detectives that he shot Alilovich two times. According to Jones, defendant said that after his family members arrived, he and Alilovich had more words. He then pulled out the gun and shot Alilovich twice and Britt once.

People v. Davis, No. 320773, 2016 WL 1125669, at *1, 8 (Mich. Ct. App. Mar. 22, 2016).

         Petitioner's conviction was affirmed on appeal. Id., reconsideration den. No. 320773 (Mich. Ct. App. May 27, 2016); lv. den. 500 Mich. 933, 889 N.W.2d 490 (2017); reconsideration den. 500 Mich. 1004, 895 N.W.2d 519 (2017).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. Petitioner was denied his Sixth and Fourteenth Amendment rights guaranteed under the U.S. Constitution, and Michigan Constitution of 1963, Art I, §20; where the trial court abused its discretion by failing to hear Petitioner's motion for substitution of appellate counsel.
II. Petitioner was denied his Sixth Amendment right under the U.S. Constitution where trial court refused to adjourn his case once new counsel was obtained.
III. Petitioner was denied his Sixth and Fourteenth Amendment rights under the U.S. Constitution to a fair trial and due process where trial court abused its discretion when endorsing a late witness and denying petitioner adjournment to prepare an effective cross-examination.
IV. Petitioner was denied his Fourth and Fourteenth Amendment rights, and Michigan Constitution of 1963 Art. I, §17, where the trial court abused its discretion in denying petitioner's motion for disqualification or recusal of the judge.
V. Petitioner was denied his Sixth Amendment right guaranteed under the U.S. Constitution to effective assistance of counsel where counsel failed to investigate several aspects of the case and instead relied on government's good faith, which is contrary to Strickland v. Washington and its progeny.
VI. Petitioner was denied his Sixth and Fourteenth rights guaranteed under the U.S. Constitution to effective assistance of counsel where counsel denied Petitioner a meaningful opportunity to present a complete defense.
VII. Petitioner was denied his Sixth Amendment right guaranteed under the U.S. Constitution to effective assistance of trial counsel where counsel of record failed to present a defense and properly investigate any potential witnesses for his defense.
VIII. Petitioner was denied his Sixth Amendment right guaranteed under the U.S. Constitution where he was denied a fair-cross section of jury selection at trial, thereby denying him due process and equal protection of law.
IX. Petitioner was denied his Sixth Amendment right guaranteed under the U.S. Constitution to effective assistance of counsel on appeal as of right where counsel denied Petitioner access to the courts and judicial review.

         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.

         The Supreme Court explained that “[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings,' and ‘demands that state-court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). “[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)). 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 claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. A habeas petitioner should be denied relief as long as it is within the “realm of possibility” that fairminded jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).

         III. Discussion

         A. Exhaustion and Procedural Default

         Respondent argues in his answer that several of Petitioner's ineffective assistance of counsel sub-claims have not been exhausted in the state courts. Respondent further argues that petitioner's fourth and eighth claims are procedurally defaulted because he failed to preserve them at the state court level.

         A habeas petitioner's failure to exhaust his state court remedies does not deprive a federal court of its jurisdiction to consider the merits of the habeas petition. Granberry v. Greer, 481 U.S. 129, 131 (1987). An unexhausted claim may be adjudicated by a federal court on habeas review if the unexhausted claim is without merit, such that addressing the claim would be efficient and would not offend the interest of federal-state comity. Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); see also 28 U.S.C. § 2254(b)(2) (habeas petition may be denied on the merits despite the failure to exhaust state court remedies).

         Likewise, procedural default is not a jurisdictional bar to review of a habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). “[F]ederal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits.” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). “Judicial economy might counsel giving the [other] question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.” Lambrix, 520 U.S. at 525.

         Petitioner's claims are meritless. Regardless of whether the claims have been properly exhausted and/or are procedurally defaulted, they fail on their own merit.

         B. Claim 1: Substitution of Appellate Counsel

         Petitioner first argues that the trial court judge abused his discretion by failing to conduct an adequate hearing on petitioner's motion to substitute appellate counsel.[2]

         The Michigan Court of Appeals rejected petitioner's claim:

Defendant also argues in his supplemental Standard 4 brief that the trial court erred in failing to address his request for substitute appellate counsel. In a November 2014 letter, defendant requested that he be appointed new appellate counsel. The trial court called a hearing, held on January 22, 2015, after it received a number of letters from defendant, in which defendant complained of appellate counsel's representation. At the hearing, the trial court recalled that one of defendant's complaints was that he did not have a copy of the transcripts. The trial court told defendant that it had asked its secretary to mail a copy of the transcripts to defendant. It then asked defendant if he had any other complaints. Defendant replied, “Basically that's really all.” “It is settled that error requiring reversal may only be predicated on the trial court's actions and not upon alleged error to which the aggrieved party contributed by plan or negligence.” Lewis v. LeGrow, 258 Mich.App 175, 210; 670 N.W.2d 675 (2003). By stating that he had no other complaints regarding appellate counsel, defendant contributed to any error that the trial court made in not addressing his request for substitute appellate counsel. Accordingly, defendant is not entitled to any relief for the alleged error.

People v. Davis, 2016 WL 1125669, at *11 (internal footnote omitted).

         In reviewing a motion for substitution of counsel, a reviewing court should consider “the timeliness of the motion; the adequacy of the [trial] court's inquiry into the defendant's complaint; and the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client's own responsibility, if any, for that conflict).” Martel v. Clair, 565 U.S. 648, 663 (2012). “Because a trial court's decision on substitution is so fact-specific, it deserves deference; a reviewing court may overturn it only for an abuse of discretion.” Id. at 663-64.

         Although all of the federal circuit courts agree that a court “cannot properly resolve substitution motions without probing why a defendant wants a new lawyer[, ]” Martel, 545 U.S. at 664, the Supreme Court in Martel did not require, as a matter of federal constitutional law, that a trial court must engage in an inquiry with a criminal defendant concerning the nature of his complaints against counsel before denying a motion for substitution. The Supreme Court in Martel held that a federal district court did not abuse its discretion in denying a habeas petitioner's motion for substitution of counsel without first conducting an inquiry into the nature of his complaints, where the motion was untimely and the court was ready to render a decision in that case. Id. at 664-66. Therefore, there is no clearly established federal law requiring an inquiry by the trial judge into the nature of a defendant's dissatisfaction with his counsel prior to denying a motion for substitution of counsel. See James v. Brigano, 470 F.3d 636, 643 (6th Cir. 2006) (reversing a grant of relief because the inquiry requirement was not clearly established Federal law). In the absence of a showing that a habeas petitioner received ...

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