Davis v. Horton
Filing
16
OPINION and ORDER Denying the 1 Petition for a Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceed in Forma Pauperis on Appeal. Signed by District Judge Thomas L. Ludington. (KWin)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JAROY LINZY DAVIS, #368513,
Petitioner,
Case Number 1:17-CV-11409
Honorable Thomas L. Ludington
v.
CONNIE HORTON,
Respondent.
_______________________________/
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
On May 16, 2001, Michigan prisoner Jaroy Linzy Davis (“Petitioner”) was convicted of
second-degree murder, MICH. COMP. LAWS § 750.317, assault with intent to commit murder, MICH.
COMP. LAWS § 750.83, and possession of a firearm during the commission of a felony, MICH.
COMP. LAWS § 750.227b, following a jury trial in the Genesee County Circuit Court in 2001. He
is currently serving sentences of 31 years 3 months to 50 years imprisonment on the murder
conviction, a concurrent term of 18 years 9 months to 40 years imprisonment on the assault
conviction, and a consecutive term of 2 years imprisonment on the felony firearm conviction.
Plaintiff has brought a habeas case pursuant to 28 U.S.C. § 2254. In his pleadings,
Petitioner raises claims concerning a partial courtroom closure during jury voir dire and the
effectiveness of his trial and appellate counsel. The petition for a writ of habeas corpus will be
denied. A certificate of appealability will also be denied as well as leave to proceed in forma
pauperis on appeal.
I.
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Petitioner’s convictions arise from the drive-by shooting death of a man in a residential
area in Flint, Michigan in February 2001. The Michigan Court of Appeals described the relevant
facts, which are presumed correct on habeas review. See 28 U.S.C. § 2254(e)(1); Wagner v. Smith,
581 F.3d 410, 413 (6th Cir. 2009). It provides:
The complainant, Richmond Lewis, testified that, during the early morning hours
of February 18, 2001, he and his friend Herbert Cleaves, Jr., were in the parking lot
of a club when Lewis saw defendants, who were looking at Lewis in a menacing
manner. Defendants were in a white Lumina. Lewis had had a sexual relationship
with the mother of Davis’ child. Defendants followed Lewis and Cleaves out of the
parking lot. Smith was driving and Davis was in the passenger’s seat. At one point,
defendants’ car drove so close to Lewis’ car that the two vehicles nearly touched.
Lewis drove around town in an effort to lose defendants. Lewis finally parked his
car at a location near his house so that defendants would not find out where he lived.
Lewis and Cleaves jogged to Lewis’ house. As Lewis started to unlock the front
door of his house, defendants’ white Lumina drove slowly down the street without
headlights. The Lumina was followed by a Ford Explorer. When defendants’ car
was in front of the house, Lewis saw a gun pointed out of the passenger window of
the Lumina. He heard shots, and he and Cleaves fell to the ground. Lewis was not
injured, but Cleaves was fatally shot in the abdomen.
People v. Davis, No. 235212, 2003 WL 21186653, *1 (Mich. Ct. App. May 20, 2003)
(unpublished).
Following his convictions and sentencing, Petitioner filed an appeal of right with the
Michigan Court of Appeals, raising claims concerning the exclusion of Richard Lewis’ criminal
record, the prosecutor’s discovery release delay, a limitation on rebuttal testimony, and the scoring
of the sentencing guidelines. The court denied relief on those claims and affirmed Petitioner’s
convictions and sentences. Id. at *2-9. Petitioner filed an application for leave to appeal with the
Michigan Supreme Court, which was denied in a standard order. People v. Davis, 469 Mich. 944,
671 N.W.2d 48 (2003).
Petitioner then filed a federal habeas petition in this Court raising the same claims
presented on direct appeal in the state courts, which was denied. Davis v. Romanowski, No. 04-
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CV-71309, 2004 WL 7331214 (E.D. Mich. Dec. 16, 2004) (Duggan, J.). Petitioner attempted to
appeal, but the United States Court of Appeals for the Sixth Circuit dismissed his appeal for lack
of jurisdiction because his notice of appeal was untimely. Davis v. Romanoski, No. 05-1151, 2005
WL 8154546 (6th Cir. April 26, 2005). The United States Supreme Court denied a petition for
writ of certiorari. Davis v. Curtin, 546 U.S. 984 (2005).
In February, 2014, Petitioner filed a motion for relief from judgment with the state trial
court, raising claims concerning a partial closure of the courtroom during jury voir dire, the
effectiveness of trial and appellate counsel as to that issue, the validity of his sentence on his assault
with intent to commit murder conviction (which was originally 40 to 60 years imprisonment), and
his actual innocence.
Petitioner’s partial closure of the courtroom claim was based upon the fact that the trial
court asked the public, other than the deceased victim’s mother, to leave the courtroom so that
prospective jurors could be seated in the courtroom for jury voir dire due to space limitations. See
5/8/01 Trial Tr. pp. 9-10. There was no objection. Id. Petitioner also filed affidavits from his
mother and two siblings stating that they were present in the courtroom on May 8, 2001, that they
had to leave the courtroom during jury voir dire, and that they would have otherwise remained in
the courtroom for that proceeding. See Affid. of Janis Thorns, Javonka Thorns, and Johann Thorns
(all dated Oct. 23, 2013), Attach. to Pet. Mot. for Relief from Judgm.
The trial court granted the motion as to the sentencing claim, but denied relief on the
remaining claims pursuant to Michigan Court Rule 6.508(D)(3) finding that Petitioner had not
shown good cause or actual prejudice for failing to raise the claims on direct appeal, had not
presented newly-discovered evidence of his actual innocence so as to waive those requirements,
and had not shown that appellate counsel was ineffective. People v. Davis, No. 01-7622-FC
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(Genesee Co. Cir. Ct. July 28, 2014). The trial court subsequently re-sentenced Petitioner to 18
years 9 months to 40 years imprisonment on the assault with intent to murder conviction.
Petitioner then filed an application for leave to appeal with the Michigan Court of Appeals, raising
claims concerning the partial closure of the courtroom during jury voir dire and the effectiveness
of trial and appellate counsel, which was denied pursuant to Michigan Court Rule 6.508(D)(3).
People v. Davis, No. 325759 (Mich. Ct. App. May 28, 2015). Petitioner also filed an application
for leave to appeal with the Michigan Supreme Court, which was denied because he “failed to
meet the burden of establishing entitlement to relief under MCR 6.508(D).” People v. Davis, 499
Mich. 914, 877 N.W.2d 724 (2016).
Petitioner thereafter filed his federal habeas petition raising claims concerning the partial
closure of the courtroom during jury voir dire and the effectiveness of trial and appellate counsel
with respect to that issue. Respondent has filed an answer to the habeas petition contending that
it should be denied because the first two claims are procedurally defaulted and all of the claims
lack merit. Petitioner has filed a reply to that answer.
II.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28
U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when
considering habeas petitions brought by prisoners challenging their state court convictions. The
AEDPA provides in relevant part:
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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.
28 U.S.C. §2254(d) (1996).
“A state court’s decision is ‘contrary to’ ... clearly established law if it ‘applies a rule that
contradicts the governing law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts
that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless
arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540 U.S. 12, 15-16
(2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v.
Cone, 535 U.S. 685, 694 (2002).
However, “[i]n order for a federal court find a state court’s application of [Supreme Court]
precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or
erroneous. The state court’s application must have been ‘objectively unreasonable.’” Wiggins,
539 U.S. at 520-21 (citations omitted); see also Williams, 529 U.S. at 409. The “AEDPA thus
imposes a ‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that statecourt decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)
(quoting Lindh, 521 U.S. at 333, n. 7); Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
III.
A.
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As an initial matter, Respondent contends that Petitioner’s first two habeas claims
concerning the partial closure of the courtroom during jury voir dire and the effectiveness of trial
counsel relative to that issue are barred by procedural default because Petitioner first raised those
claims in the state courts on post-conviction collateral review and the state courts denied relief
pursuant to Michigan Court Rule 6.508(D)(3).
Federal habeas relief may be precluded on a claim that a petitioner has not presented to the
state courts in accordance with the state’s procedural rules. Wainwright v. Sykes, 433 U.S. 72,
85-87 (1977); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). The doctrine of procedural default
applies when a petitioner fails to comply with a state procedural rule, the rule is actually relied
upon by the state courts, and the procedural rule is “adequate and independent.” White v. Mitchell,
431 F.3d 517, 524 (6th Cir. 2006); Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005);
Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). “A procedural default does not bar
consideration of a federal claim on either direct or habeas review unless the last state court
rendering a judgment in the case ‘clearly and expressly’ states that its judgment rests on a state
procedural bar.” Harris v. Reed, 489 U.S. 255, 263-64 (1989). The last explained state court
ruling is used to make this determination. Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991).
Petitioner first presented his claim of partial courtroom closure and related ineffective
assistance of trial counsel claim to the state courts in his motion for relief from judgment and
related appeals. The Michigan Supreme Court denied relief pursuant to Michigan Court Rule
6.508(D), which provides, in part, that a court may not grant relief to a defendant if the motion
for relief from judgment alleges grounds for relief which could have been raised on direct appeal,
absent a showing of good cause for the failure to raise such grounds previously and actual
prejudice resulting therefrom. See MICH. CT. R. 6.508(D)(3). The United States Court of Appeals
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for the Sixth Circuit has held that the form order used by the Michigan Supreme Court to deny
leave to appeal lacks necessary explanation for habeas review. Consequently, the Court must
“look through” the unexplained orders of the Michigan Supreme Court to the lower court
decisions to determine the basis for the denial of state post-conviction relief. Guilmette v. Howes,
624 F.3d 286, 291-92 (6th Cir. 2010) (en banc).
In this case, both the Michigan Court of Appeals and the state trial court denied relief on
procedural grounds. They ruled that Petitioner had not shown good cause and actual prejudice
under Michigan Court Rule 6.508(D)(3) for his failure to raise the claims on direct appeal of his
convictions and that he had not shown that those requirements should be waived due to his actual
innocence. The state courts thus clearly relied upon a procedural default to deny Petitioner relief
on these claims. Accordingly, Petitioner’s first two claims are procedurally defaulted.
A state prisoner who fails to comply with a state’s procedural rules waives the right to
federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting
from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice.
Coleman, 501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). To establish
cause, a petitioner must establish that some external impediment frustrated his or her ability to
comply with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). A
petitioner must present a substantial reason to excuse the default. Amadeo v. Zant, 486 U.S. 214,
223 (1988). Such reasons include interference by officials, attorney error rising to the level of
ineffective assistance of counsel, or a showing that the factual or legal basis for a claim was not
reasonably available. McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).
Petitioner asserts ineffective assistance of appellate counsel as cause to excuse his
procedural default. The Sixth Amendment to the United States Constitution guarantees a criminal
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defendant the right to the effective assistance of counsel. In Strickland v. Washington, 466 U.S.
668 (1984), the Supreme Court set forth a two-prong test for determining whether a habeas
petitioner has received ineffective assistance of counsel. First, a petitioner must prove that
counsel’s performance was deficient. This requires a showing that counsel made errors so serious
that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. Strickland,
466 U.S. at 687. Second, the petitioner must establish that counsel’s deficient performance
prejudiced the defense. Counsel’s errors must have been so serious that they deprived the
petitioner of a fair trial or appeal. Id.
To satisfy the performance prong, a petitioner must identify acts that were “outside the
wide range of professionally competent assistance.” Id. at 690. The reviewing court’s scrutiny
of counsel’s performance is highly deferential. Id. at 689. There is a strong presumption that trial
counsel rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. Id. at 690. The petitioner bears the burden of overcoming the
presumption that the challenged actions were sound trial strategy.
As to the prejudice prong, a petitioner must show that “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. A reasonable probability is one that is sufficient to undermine confidence
in the outcome of the proceeding. Id. “On balance, the benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the [proceeding] cannot be relied on as having produced a just result.”
Strickland, 466 U.S. at 686.
The Supreme Court has confirmed that a federal court’s consideration of ineffective
assistance of counsel claims arising from state criminal proceedings is quite limited on habeas
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review due to the deference accorded trial attorneys and state appellate courts reviewing their
performance. “The standards created by Strickland and § 2254(d) are both ‘highly deferential,’
and when the two apply in tandem, review is ‘doubly’ so.” Harrington, 562 U.S. at 105 (internal
and end citations omitted). “When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id.
It is well-established that a criminal defendant does not have a constitutional right to have
appellate counsel raise every non-frivolous issue on appeal. See Jones v. Barnes, 463 U.S. 745,
751 (1983). The Supreme Court has explained:
For judges to second-guess reasonable professional judgments and impose on
appointed counsel a duty to raise every “colorable” claim suggested by a client
would disserve the … goal of vigorous and effective advocacy …. Nothing in the
Constitution or our interpretation of that document requires such a standard.
Id. at 754. Strategic and tactical choices regarding which issues to pursue on appeal are “properly
left to the sound professional judgment of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th
Cir. 1990). In fact, “the hallmark of effective appellate advocacy” is the “process of ‘winnowing
out weaker arguments on appeal and focusing on’ those more likely to prevail.” See Smith v.
Murray, 477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). “Generally, only when
ignored issues are clearly stronger than those presented will the presumption of effective
assistance of appellate counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir.
2002).
Petitioner fails to show that by omitting the claims presented in his motion for relief from
judgment, appellate counsel’s performance fell outside the wide range of professionally
competent assistance. Appellate counsel raised substantial claims on direct appeal, including
claims concerning the exclusion of Richard Lewis’ criminal record, the prosecutor’s discovery
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release delay, a limitation on rebuttal testimony, and the scoring of the sentencing guidelines.
Such claims, while not successful, were nonetheless reasonable and constituted sound advocacy.
Additionally, appellate counsel may have not raised claims regarding the partial closure of
the courtroom during jury voir dire and trial counsel’s lack of objection claims because the
Supreme Court had not yet ruled that a defendant’s Sixth Amendment right to a public trial
extends to jury voir dire. The Supreme Court first did so in Presley v. Georgia, 558 U.S. 209
(2010), which was decided several years after the conclusion of Petitioner’s direct appeal. See
Woodson v. Hutchinson, 52 F. App’x 195, 198 (5th Cir. 2002) (ruling that petitioner’s attorneys
could reasonably have questioned whether he had a constitutional right to an open courtroom
during jury voir dire where the Supreme Court had not yet applied the public trial right of the
Sixth Amendment to jury selection); Riggins v. Rivard, No. 09-CV-13144, 2015 WL 2185901,
*8 (E.D. Mich. May 11, 2015) (stating that “it was unclear whether the Sixth Amendment public
trial right applied to the voir dire process” at the time of the petitioner’s 2006 trial); Christian v.
Hoffner, No. 13-CV-11491, 2014 WL 5847600, *8 (E.D. Mich. Nov. 12, 2014) (finding that there
was “some question” as to whether the Sixth Amendment public trial right applied to jury voir
dire before Presley was decided and ruling that trial counsel was not ineffective for failing to
object to a jury voir dire courtroom closure which predated Presley).
Similarly, appellate counsel may have not raised the issues on direct appeal because the
courtroom closure was only a partial one (the deceased victim’s mother remained in the courtroom
during jury voir dire, see 5/8/01 Trial Tr. p. 10) and Supreme Court cases had involved complete
courtroom closures. See, e.g., Waller v. Georgia, 467 U.S. 39 (1984) (ruling that the complete
exclusion of the public from the courtroom during a suppression hearing was unjustified and
identifying four factors a court should consider before closing a courtroom to the public); Press-
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Enterprise Co. v. Superior Ct. of Calif., 464 U.S. 501, 512 (1984) (ruling that exclusion of all
press and public from jury voir dire during rape trial violated First Amendment right of public
access); Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 U.S. 596 (1982) (complete
exclusion of press and public from courtroom during criminal trial). One case stated that when a
limited disclosure is ordered, “the constitutional values sought to be protected by holding open
proceedings may be satisfied later by making a transcript of the closed proceedings available
within a reasonable time.” Press-Enterprise Co., 464 U.S. at 512. See Drummond v. Houk, 797
F.3d 400, 403 (6th Cir. 2015) (stating that “there is no clearly established Supreme Court law as
to how the rules in Waller apply in cases, like Petitioner’s, where some spectators, but not all of
them, were removed from the courtroom”); Bickham v. Winn, No. 2:14-CV-14560, 2016 WL
3902746, *7 (E.D. Mich. June 19, 2016) (discussing Drummond and indicating that clearly
established Supreme Court law only applies to full courtroom closures), aff’d., 888 F.3d 248 (6th
Cir. 2018). In this case, the courtroom closure was partial and a transcript of the jury voir dire
was available at the time of trial and appeal.
Appellate counsel may have also determined that raising the partial courtroom closure
during jury voir dire issue on appeal would be futile because trial counsel did not object to the
closure at the time of trial, thereby waiving that issue. See Weaver v. Massachusetts, _ U.S. _,
137 S. Ct. 1899, 1910-11 (2017) ; Peretz v. United States, 501 U.S. 923, 936-37 (1991); Bickham,
888 F.3d at 251-52 (citing cases and discussing contemporaneous objection rule and waiver of
public trial right); Johnson v. Sherry, 586 F.3d 439, 444 (6th Cir. 2009) (citing Freytag v.
Comm’r, 501 U.S. 868, 896 (1991)); see also People v. Smith, 90 Mich. App. 20, 282 N.W.2d
227 (1979) (ruling that a defendant may waive the right to a public trial expressly or by failing to
timely object at trial).
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Appellate counsel may have similarly decided not to raise the related ineffective assistance
of trial counsel claim on appeal because he could not show that trial counsel was deficient for not
objecting to the partial courtroom closure and/or that Petitioner was prejudiced by trial counsel’s
conduct as required under Strickland. As to trial counsel’s performance, appellate counsel may
have believed that trial counsel made a strategic decision not to object to the closure because it
was done due to space limitations, there were no reasonable alternatives, it would not affect the
defense case, and/or he did not want to antagonize the judge. See, e.g., Johnson v. Sherry, 465 F.
App’x 477, 481 (6th Cir. 2012) (denying habeas relief on similar ineffective assistance of trial
counsel claim, explaining that counsel “apparently weighed the minimal benefits against the
significant costs of objecting to the closure, and then decided against it. The Constitution
permitted him that choice.”); Bucci v. United States, 662 F.3d 18, 32 (1st Cir. 2011) (ruling that
competent counsel could reasonably conclude that even a successful challenge to a partial
courtroom closure would do little to increase the chance of acquittal). Appellate counsel may
have also believed that trial counsel did not object to the closure because he thought that jurors
would be more forthcoming with fewer people in the courtroom.
See, e.g., Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 559-60 (1980); United States v. Koubriti, 252 F.
Supp. 2d 424, 431 (E.D. Mich. 2003).
As to prejudice, appellate counsel may have reasonably determined that he could not show
that Petitioner was prejudiced by trial counsel’s lack of objection to the partial courtroom closure
during jury voir dire because such conduct was not outcome determinative. See Weaver, 137 S.
Ct. at 1912-13 (rejecting argument that, because an improper courtroom closure is a structural
error, prejudice for purposes of an ineffective assistance of counsel claim is presumed and,
instead, ruling that a petitioner is required to show a reasonable probability of a different outcome
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but for counsel’s failure to object). To be sure, a review of the record reveals that the parties
conducted a lengthy jury voir dire and defense counsel expressed satisfaction with the selected
jury, see 5/8/01 Trial Tr. pp. 10-165, that the prosecution presented significant evidence of
Petitioner’s guilt at trial, particularly the testimony of the surviving shooting victim, and that there
is no indication that the partial courtroom closure affected the fundamental fairness of the trial or
the outcome at trial.
Furthermore, even if appellate counsel erred, Petitioner cannot show that he was prejudiced
by appellate counsel’s conduct (to establish prejudice to excuse the procedural default) as he fails
to show that the result of his direct appeal would have been different. As discussed above, his
claim regarding the partial courtroom closure during jury voir dire was waived by the lack of
objection at the time of trial. His underlying ineffective assistance of trial counsel claim lacks
merit because Petitioner fails to show that trial counsel was deficient or erred and that he was
prejudiced by counsel’s conduct. Petitioner thus fails to establish that appellate counsel was
ineffective under the Strickland standard. Consequently, Petitioner fails to establish cause and
prejudice to excuse his procedural default.
Petitioner also fails to demonstrate that a fundamental miscarriage of justice has occurred.
The miscarriage of justice exception requires a showing that a constitutional violation probably
resulted in the conviction of one who is actually innocent. Murray v. Carrier, 477 U.S. 478, 47980 (1986). To be credible, such a claim requires a petitioner to provide new, reliable evidence
that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Moreover, actual
innocence means factual innocence, not mere legal insufficiency. Bousley v. United States, 523
U.S. 614, 623 (1998).
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Petitioner makes no such showing. While he cites affidavits from Laron Burn and Defan
Pringle, which indicate that a man named Shelton Golden may have been responsible for the
shooting at issue, he fails to show that those affidavits are newly-discovered (in that they contain
information that could not have been obtained at the time of trial or direct appeal) and/or that they
constitute reliable evidence of his actual innocence. To be sure, as discussed by the trial court in
denying Petitioner’s motion for relief from judgment on these issues, Laron Burn testified at trial
and when he was asked if he knew who shot the victims, he was precluded from answering based
upon a defense objection. Petitioner fails to sufficiently explain why he was unable to obtain
information from Laron Burns or Defan Pringle at the time of his trial or direct appeal.
Moreover, both of the affidavits are inherently suspect and unreliable, having been signed
more than 12 years after the incident and the trial and 10 years after the conclusion of direct
appeal. See, e.g., Schlup, 513 U.S. at 331; Freeman v. Trombley, 483 F. App’x 51, 59-60 (6th Cir.
2012) (discounting credibility of girlfriend’s alibi affidavit submitted long after petitioner’s trial);
Lewis v. Smith, 110 F. App’x 351, 355 (6th Cir. 2004) (district court properly rejected as
suspicious a recanting affidavit made two years after trial). Such statements are viewed with “a
fair degree of skepticism.”
Herrera v. Collins, 506 U.S. 390, 423 (1993) (O'Connor, J.,
concurring); Harris v. Smith, No. 2:12-CV-14210, 2013 WL 3873168, *5 (E.D. Mich. July 25,
2013) (“Long delayed statements are viewed with extreme suspicion.”); see also McQuiggan v.
Perkins, 569 U.S. 383, 387 (2013) (stating that a court should consider “unjustifiable delay on a
habeas petitioner’s part . . . as a factor in determining whether actual innocence has been reliably
shown”). Both affidavits also consist of hearsay statements and do not provide direct evidence
of Petitioner’s innocence. Hearsay is presumptively unreliable and insufficient to establish actual
innocence. See Bell v. Howes, 701 F. App’x, 408, 412 (6th Cir. 2017) (citing Herrera v. Collins,
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506 U.S. 390, 417 (1993)); Knickerbocker v. Wolfenbarger, 212 F. App’x 426, 433 (6th Cir.
2007).
Lastly, the Court notes that Petitioner’s own self-serving, conclusory assertions of
innocence are insufficient to support his actual innocence claim. “A reasonable juror surely could
discount [a petitioner’s] own testimony in support of his own cause.” McCray v. Vasbinder, 499
F.3d 568, 573 (6th Cir. 2007) (citing cases). Petitioner fails to show that he is actually innocent.
His habeas claims concerning the partial closure of the courtroom during jury voir dire and the
effectiveness of trial counsel are thus barred by procedural default and do not warrant habeas
relief.
B.
Petitioner also raises an independent claim that appellate counsel was ineffective for failing
to raise the foregoing two claims on direct appeal in the state courts. Respondent contends that
this claim lacks merit.
The state trial court denied relief on this claim on collateral review, finding that Petitioner
failed to establish that appellate counsel erred or that he was prejudiced by counsel’s conduct.
See Davis, No. 01-7622-FC at *4-7. The state court’s decision is neither contrary to Supreme
Court precedent nor an unreasonable application thereof. The ineffective assistance of appellate
counsel claim, while not itself procedurally defaulted, nonetheless lacks merit. As discussed
supra, Petitioner has failed to establish that appellate counsel was ineffective under the Strickland
standard. More importantly, for purposes of habeas review, this Court cannot conclude that the
state court’s determination to that effect was unreasonable. Habeas relief is not warranted on this
claim.
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IV.
Before Petitioner may appeal the Court’s decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability
may issue “only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on the merits, the substantial showing
threshold is met if the petitioner demonstrates that reasonable jurists would find the court’s
assessment of the claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
When a court denies relief on procedural grounds without addressing the merits, a certificate of
appealability should issue if it is shown that jurists of reason would find it debatable whether the
petitioner states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the court was correct in its procedural ruling. Id. In this case, jurists of
reason could not debate the correctness of the Court’s procedural ruling as to the partial courtroom
closure during jury voir dire the ineffective assistance of trial counsel claims and that Petitioner
fails to make a substantial showing of the denial of a constitutional right as to his ineffective
assistance of appellate counsel claim. Lastly, the Court concludes that an appeal from this
decision cannot be taken in good faith. See FED. R. APP. P. 24(a).
Accordingly, it is ORDERED that Petitioner’s petition for a writ of habeas corpus is
DISMISSED WITH PREJUDICE.
It is further ORDERED that a certificate of appealability and permission to appeal in forma
pauperis are DENIED.
Dated: May 4, 2020
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Case 1:17-cv-11409-TLL-PTM ECF No. 16 filed 05/04/20
PageID.2487
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney of record herein by electronic means and to Jaroy
Davis #368513, CHIPPEWA CORRECTIONAL FACILITY,
4269 W. M-80, KINCHELOE, MI 49784 by first class U.S. mail on
May 4, 2020.
s/Kelly Winslow
KELLY WINSLOW, Case Manager
Page 17 of 17
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