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Carter v. Davids

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

November 14, 2019

JOHN DAVIDS, Respondent.



         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.


         I. Factual allegations

         Petitioner Robert James Carter is incarcerated with the Michigan Department of Corrections at the Ionia Correctional Facility (ICF) in Ionia County, Michigan. Following a six-day jury trial in the Wayne County Circuit Court, Petitioner was convicted of armed robbery, felony murder, and a felony firearm violation. On November 21, 2016, the court sentenced Petitioner to concurrent prison terms of 20 to 40 years for armed robbery and life imprisonment for felony murder, both consecutive to a sentence of 2 years for felony-firearm.

         The Michigan Court of Appeals described the facts underlying Petitioner convictions as follows:

Defendant and Drakile Jones, were convicted in separate jury trials of robbing and murdering Phillip Pentecost.1 Around midnight on January 26, 2016, defendant and Jones went to the home of Justin Harris, with whom Jones had spoken earlier in the day about getting together. Shortly before arriving at Harris's house, Jones called him and inquired about “hitting licks” (which meant getting some money) and also about whether Harris had a “stick” (meaning a gun). Jones informed Harris that he had a friend with him (defendant), and when Harris indicated he was not interested in meeting anyone at that time, Jones reassured Harris that he need not worry because defendant was so loyal to Jones that “he would blow [Harris] if [Jones] told him to, ” meaning he would “shoot” or “kill” Harris. Harris did not take this as a threat, but rather as Jones vouching for defendant's loyalty.
Jones subsequently arrived at Harris's home with defendant. Harris was there with a cousin and a friend. Jones discussed “hitting licks” with Harris and again asked whether Harris had a “burner” (a gun). Defendant stood nearby but did not participate in the discussion. Defendant was armed with a handgun. Eventually, Jones and defendant left the house. Harris testified that Pentecost's car, a black Chevrolet HHR, was parked in a driveway two houses away with the engine running; Harris could not determine if Pentecost was inside the car.
Harris went back inside, but shortly afterwards he heard a gunshot, a scream, and then another gunshot. He then saw Pentecost's car speeding away and went outside to find Pentecost lying on the ground bleeding from his head. Harris called 911, got a towel to hold to Pentecost's head, and stayed with him until the police and ambulance arrived. Harris found an iPhone next to Pentecost, which he assumed belonged to Pentecost. He picked it up, but the police took it from him and later determined that it was defendant's cell phone. Harris testified that shortly after he went back inside his home, he spoke on the telephone with Jones who told him not to admit to the police that he had seen Jones. Harris was interviewed by the police and did not initially mention defendant or Jones. However, in later interviews he admitted that defendant and Jones had been present at his home, and also told them about Jones's call.
An autopsy determined that Pentecost had been shot twice: once in the abdomen and once in the head. Either shot would have been fatal.
Tavion Williams2 testified that defendant came to his house and asked for his help in hiding a black Chevrolet. Williams and defendant drove the vehicle around the block and parked it behind a store. The following morning, defendant told Williams about the robbery and shooting. Defendant left at Williams' request. Defendant returned that night and asked Williams to help dispose of the black Chevrolet; Williams refused and defendant left.
Subsequently, the fire department discovered a black Chevrolet HHR on fire behind an abandoned house. It was determined that the fire had started in the passenger compartment; a hidden vehicle identification number revealed the vehicle's owner and it was determined that there was a “hold for homicide” notification associated with the vehicle.
Eventually, a search was conducted of defendant's apartment. The police discovered a leather jacket that had belonged to Pentecost. The police also used tracking software to follow where defendant's and Jones's cell phones had been during the time immediately before the murder and for the day after the murder. Defendant was interviewed by the police and gave several inconsistent versions of what happened during the robbery and murder. Eventually he blamed the events on Jones, claiming that Jones had forced him to participate in the robbery and then had shot Pentecost. Based on this claim, defendant subsequently offered a duress defense at trial. Defendant also admitted that he drove Pentecost's vehicle away from the scene and later disposed of it.
1 Jones was tried by a separate jury some months before defendant's trial and his appeal, Docket No. 334635, has been submitted jointly with defendant's appeal.
2 Williams's first name was spelled Taevion in Jones's trial.

(Mich. Ct. App. Op., ECF No. 1-1, PageID.77-78.)[1]

         Petitioner, with the assistance of counsel, appealed his convictions to the Michigan Court of Appeals, raising the same four issues he raises in this petition. By opinion issued February 20, 2018, the court of appeals affirmed the trial court. (Id., PageID.77-87.) Petitioner, again with the assistance of counsel, then sought leave to appeal in the Michigan Supreme Court. By order entered September 12, 2018, the supreme court denied leave to appeal. (Mich. Order, ECF No. 1-1, PageID.89.) On November 3, 2019, Petitioner timely filed his habeas corpus petition raising the four grounds for relief he had raised in the Michigan appellate courts:

I. Was Defendant's trial counsel constitutionally ineffective for not calling Tavion Williams as a witness where Mr. Williams was essentially a res gestae witness who was personally involved in this crime, and would have provided testimony consistent with the Defendant's own duress defense and testimony, and was readily available having testified at Drakile Jones' trial? Is an evidentiary hearing unnecessary to establish ineffective assistance as the transcript of Tavion Williams' prior testimony is attached hereto for this Court's consideration? Was this not harmless error and is a new trial necessary?
II. Did Judge Kenny abuse his discretion by finding that the prosecutor had exercised due diligence in bringing res gestae witness Anthony Cox-Rodgers to court, and then allowing Anthony Cox-Rodgers' prior testimony to be read into the record because Mr. Cox-Rodgers was making himself scarce despite having appeared for the first day of trial. This evidence tainted the trial, was not harmless, and a new trial is required.
III. Judge Kenny clearly erred by finding that hearsay statements of Drakile Jones, presented through Justin Harris, were admissible, under the co-conspirator exception. This evidence tainted the trial, was not harmless, and a new trial is required.
IV. Judge Kenny clearly erred when he found that the Defendant's statement prior to being read his Miranda warnings, while he was in custody, which revealed his iPhone passcode to law enforcement, was testimonial and should have been suppressed, and the evidence obtained as a result including the prejudicial firearms photos used as evidence at trial should have been suppressed as well.

(Pet., ECF No. 1, PageID.3) (corrected for spelling and grammatical errors).

         II. AEDPA standard

         This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). 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, 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 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, 574 U.S. 1, 4 (2014); Marshall v. Rodgers, 569 U.S. 58, 64 (2013); Parker v. Matthews, 567 U.S. 37, 48-49 (2012); Williams, 529 U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). 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, 37-38 (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. 415, 424 (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); Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (en banc); 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. Discussion

         A. Tavion's testimony

         Petitioner contends that his counsel was ineffective for failing to call Tavion Williams to bolster Petitioner's defense that he committed the crimes under duress. Petitioner testified that when he balked at going forward with the robbery of Pentecost, Jones threatened to shoot him. Williams testified at Jones' trial. Although he did not witness the threats, Petitioner did indicate to Williams, the next day, that Jones threatened Petitioner:

Prosecutor: Did Robert Carter say that he was with Drakile?
Williams: Yes. That's what he said.
Prosecutor: Did he say that he and Drakile were looking to make some money?
Williams: Yes.
Prosecutor: Did he say that he and Drakile were looking to rob someone?
Williams: Yes.
Prosecutor: He used those words?
Williams: Yes.
Prosecutor: What did he say then?
Williams: He said that they had found someone in particular who they ...

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