United States District Court, E.D. Michigan, Southern Division
JOVON C. DAVIS, Petitioner,
WILLIS CHAPMAN, Respondent.
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
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
was convicted following a jury trial in the Berrien County
Circuit Court. 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
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).
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).
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
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.
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.
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).
Exhaustion and Procedural Default
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
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).
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.
claims are meritless. Regardless of whether the claims have
been properly exhausted and/or are procedurally defaulted,
they fail on their own merit.
Claim 1: Substitution of Appellate Counsel
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.
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
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.
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