Davis v. Warden

Filing 15

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Granting Leave to Appeal in Forma Pauperis. Signed by District Judge Denise Page Hood. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEON DAJUAN DAVIS,

CASE NO. 17-cv-13378
HON. DENISE PAGE HOOD

v.
WARDEN WILLIS CHAPMAN,
________________________________/

OPINION AND ORDER
DENYING THE HABEAS CORPUS PETITION,
DENYING A CERTIFICATE OF APPEALABILITY, AND
GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Keon Dajuan Davis filed a pro se habeas corpus petition
challenging his Michigan conviction for second-degree murder, Mich. Comp. Laws
§ 750.317. (ECF No. 1.) The petition raises eight claims about the admission of
certain evidence, the sufficiency and weight of the evidence at trial, the state trial
court’s jury instructions, the prosecutor’s conduct, trial counsel, and the totality of
trial errors. (Id. at PageID.5-11, 35-37.) The State urges the Court to deny the
habeas petition on grounds that Petitioner’s claims are not cognizable on habeas
review, are procedurally defaulted, or were reasonably decided by the Michigan
Court of Appeals on direct review. (ECF No. 6, PageID.128-131.) Having reviewed
the pleadings and the state-court record, the Court concludes that Petitioner’s claims
do not warrant habeas corpus relief. The Court, therefore, will deny the petition.

1

I. Background
Petitioner was charged with open murder in Wayne County, Michigan. 1 The
charges arose from the fatal shooting of Calvin Warrington Bryant. Petitioner was
tried jointly with his co-defendant, Damontay Harvey (“Harvey), in Wayne County
Circuit Court.2 The Michigan Court of Appeals summarized the facts as follows:
The victim was fatally shot near the intersection of West Warren and
McKinley in the city of Detroit on December 1, 2012, at approximately
10:30 p.m. as he was walking away from the Yellow Apple market.
There were no witnesses to the shooting. Several surveillance videos
obtained from the market were used to identify the victim and the two
defendants at the market. Defendants Davis and Harvey separately
identified themselves in the videos.
Both defendants arrived at the market in a blue Buick. Video
surveillance cameras showed the victim and defendants in the market,
each approaching the counter at different times. The videos depicted
the victim leaving the store and defendants bypassing the blue Buick
and following the victim on foot across Warren. The Buick then
followed. The videos did not show the shooting or either defendant in
possession of a gun. The videos did include footage of a person
entering the Buick after the shooting, after which the vehicle drove
away. The prosecution’s theory at trial was that defendants were the
two males who followed the victim after he left the Yellow Apple
market, shot him a short distance from the market, and then left the
scene in the blue Buick that was waiting nearby.

The open murder charge included first-degree premeditated murder, first-degree
felony murder, and second-degree murder. (10/29/13 Trial Tr., ECF No. 7-14,
PageID.1016.)
1

2

The two defendants had separate juries.
2

People v. Davis, No. 319483, 2015 WL 8953522, at *1 (Mich. Ct. App. Dec. 15,
2015).
Petitioner did not testify or present any witnesses. His defense was that the
prosecution failed to prove its case beyond a reasonable doubt. The jury apparently
was unpersuaded by the argument, and on October 31, 2013, it found Petitioner
guilty of second-degree murder. (10/31/13 Trial Tr., ECF No. 7-16, PageID.1040.)
On November 19, 2013, the trial court sentenced Petitioner to prison for thirty to
sixty years with credit for 344 days served in jail. (11/19/13 Sentence Tr., ECF No.
7-17, PageID.1055.)
Petitioner raised his habeas claims and two additional claims about the scoring
of the sentencing guidelines and the trial court’s assessment of court costs in an
appeal as of right. On December 15, 2015, the Michigan Court of Appeals affirmed
Petitioner’s convictions, but remanded his case to the trial court for a determination
of the factual basis for the costs imposed and for consideration of whether
resentencing was appropriate under People v. Lockridge, 498 Mich. 358; 870
N.W.2d 502 (2015).
Petitioner raised his habeas claims in a subsequent application for leave to
appeal in the Michigan Supreme Court. On July 26, 2016, the state supreme court
denied leave to appeal because it was not persuaded to review the issues. See People
v. Davis, 499 Mich. 987; 882 N.W.2d 149 (2016).
3

Petitioner filed his habeas corpus petition on October 13, 2017.

His

supporting brief is the brief that he presented to the Michigan Supreme Court. The
Court proceeds to address Petitioner’s claims, using the following standard.
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
requires prisoners who challenge “a matter ‘adjudicated on the merits in State court’
to show that the relevant state court ‘decision’ (1) ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law,’ or (2) ‘was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.’ ” Wilson v. Sellers, 138 S. Ct. 1188, 1191 (2018) (quoting
28 U.S.C. §§ 2254(d)(1) and (d)(2)). “[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. Rather, that application must also be unreasonable.” Williams v. Taylor,
529 U.S. 362, 411 (2000).
“AEDPA thus imposes a ‘highly deferential standard for evaluating statecourt rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S. Ct. 2059, 138
L.Ed.2d 481 (1997), and ‘demands that state-court decisions be given the benefit of
the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357, 154 L. Ed. 2d 279
(2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “A state court’s
4

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) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). Only an ‘objectively unreasonable’ mistake, . . . , one
‘so lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement,’ slips through
the needle’s eye of § 2254.” Saulsberry v. Lee, 937 F.3d 644, 648 (6th Cir.) (quoting
Richter, 562 U.S. at 103), cert. denied, 140 S. Ct. 445 (2019).
The Court’s review generally is “limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170,
181 (2011). The Court presumes that a state-court’s factual determinations are
correct unless the petitioner rebuts the presumption with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
III. Discussion
A. Testimony about the Surveillance Videotapes
Petitioner alleges first that the trial court violated his right of confrontation
and his rights to due process and a fair trial by allowing two police officers to present
improper testimony about surveillance videotapes taken from the market where
Petitioner first encountered the victim.

Petitioner’s claim arises from the trial

court’s construction of Michigan Rules of Evidence 701 and 702. He asserts that :
5

(1) some of the videotapes were cropped and enlarged to the point of being
impossible to view; (2) the two police officers testified to being able to see things
that cannot be seen in the videotapes; (3) the officers’ testimony was inadmissible
hearsay and violated his right of confrontation; and (4) the officers’ testimony
impermissibly encroached on the jury’s province. (ECF No. 1, PageID.52-53.)
Sergeant Ron Gibson testified about the content of a videotape which was
shown to the jurors. According to his narration at trial, the videotape showed the
following activity. “Subject A” got out of the rear door of a vehicle and entered the
party store. The victim subsequently exited the store with a white bag and stopped
to talk to someone in a small white or silver car. As the victim was conversing with
someone in the small car, “Subject B” exited the front passenger side of the subjects’
vehicle and glanced at the victim. Subject B then entered the store and appeared to
say something to Subject A. Subjects A and B then walked out of the store and
followed the victim who was walking down Warren Avenue by then. The vehicle
in which the two subjects arrived at the store subsequently pulled out of the parking
lot, traveled in the same direction as Subjects A and B, and then turned left.
Sergeant Gibson explained that the videotape became extremely pixillated at
some point and that the individuals appeared as pixels moving in the dark. He
thought that the two subjects closed the gap between themselves and the victim and
that the victim stood still when the two other subjects approached him. Something
6

white, consistent with the victim’s white bag, quickly crossed Warren Avenue,
followed by two other individuals. The individuals were no longer visible at that
point, but the vehicle stopped, and an area lighted up, consistent with a car door
opening. The vehicle then moved out of view. (10/25/13 Trial Tr., ECF No. 7-12,
PageID.823-835); 10/28/213 Trial Tr., ECF No. 7-13, PageID.843-860.)
Petitioner claims that the jury was permitted to treat Gibson’s speculative
testimony about what the videotapes depicted as reliable expert opinion, even though
most of Gibson’s testimony did not qualify as expert testimony under Michigan Rule
of Evidence 702 (“Testimony by Experts”). (ECF No. 1, PageID.61-65.) Petitioner
asserts that Gibson’s testimony was prejudicial because he communicated to the jury
that Petitioner was one of the perpetrators of the crime. (Id. at PageID.67-68.)
Sergeant Edward Brannock likewise testified about the content of the
videotapes. (10/24/13 Trial Tr., ECF No. 7-11, PageID.602-606, 609, 614-615, 624627.) Petitioner claims that Brannock’s testimony was improperly admitted as lay
opinion because Brannock narrated the videos and interpreted the videos to support
the prosecution’s theory even though the jury was as capable of observing the videos
as Sergeant Brannock. (ECF No. 1, PageID.56.)
`

Petitioner states that Brannock and Gibson should not have been allowed to

tell the jury what conclusions to draw from the videos, because in doing so, the
officers invaded the province of the jury. (Id. at PageID.70.) Petitioner concludes
7

that he was convicted primarily on the officers’ speculative and conclusory
testimony, not proper evidence. (Id. at PageID.68, 70.)
1. Clearly Established Federal Law
The Michigan Court of Appeals concluded on review of Petitioner’s claim
that the trial court did not abuse its discretion in admitting the challenged testimony.
This Court finds no merit in Petitioner’s claim because it is based primarily on
Michigan Rules of Evidence 701 and 702.
Federal habeas courts usually do not question state-court rulings on the
admission of evidence under state law, Cooper v. Sowders, 837 F.2d 284, 286 (6th
Cir. 1988), and the contention that the state court violated Michigan’s Rules of
Evidence is not a cognizable claim on federal habeas corpus review. Hall v.
Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009). When “conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Although Petitioner alleges that the officers’ testimony also violated his rights
to due process and a fair trial, “states have wide latitude with regard to evidentiary
matters under the Due Process Clause.” Wilson v. Sheldon, 874 F.3d 470, 476 (6th
Cir. 2017). “[T]he Due Process Clause does not permit the federal courts to engage
in a finely tuned review of the wisdom of state evidentiary rules,” Marshall v.
Lonberger, 459 U.S. 422, 438 n. 6 (1983), and “[a] habeas petitioner’s challenge to
8

an evidentiary ruling cannot satisfy § 2254(d)(1) unless the petitioner identifies a
Supreme Court case establishing a due process right with regard to [the] specific
kind of evidence at issue.” Keahey v. Marquis, 978 F.3d 474, 479 (6th Cir. 2020)
(citing Stewart v. Winn, 967 F.3d 534, 538 (6th Cir. 2020)) (second alteration and
emphasis in original; quotation marks omitted). A state court’s evidentiary error
does not rise to the level of a federal constitutional claim warranting habeas corpus
relief unless the error rendered “the proceeding so fundamentally unfair as to deprive
the petitioner of due process under the Fourteenth Amendment.” McAdoo v. Elo,
365 F.3d 487, 494 (6th Cir. 2004).
Petitioner also claims that the officers violated his Sixth Amendment right to
be confronted with the witnesses against him. This right is “applicable to the States
through the Fourteenth Amendment,” Idaho v. Wright, 497 U.S. 805, 813 (1990),
and it “includes the right to cross-examine witnesses.” Richardson v. Marsh, 481
U.S. 200, 206 (1987).
2. Application
Sergeant Gibson was qualified as an expert witness in video extraction and
analysis. (10/25/13 Trial Tr., ECF No. 7-12, PageID.803-804.) Of particular
significance here is his testimony that he never identified Petitioner as one of the
subjects in the videotapes. (10/28/13 Trial Tr., ECF No. 7-13, PageID.871.) Further,
as noted by the Michigan Court of Appeals, Gibson “explained how to interpret the
9

enlarged video, which to the untrained eye appears to be dots of light moving in
darkness.” Davis, 2015 WL 8953522, at *7. The Court of Appeals opined that,
“[a]lthough most lay persons could probably figure out that the pairs of lights
moving in a straight direction were headlights of a car, most lay persons would
require instruction to recognize that the moving pixels depict people walking, or to
recognize that a white image is a plastic store bag.” Id.
The Court of Appeals concluded that “Gibson’s testimony explaining how the
enlarged images relate to the images in the original video was within the scope of
his expertise on ‘scientific, technical, or otherwise specialized knowledge’ that
would ‘assist the trier of fact to understand the evidence or to determine a fact in
issue.’ ” Id. (quoting Michigan Rule of Evidence 702 on expert testimony). The
Court of Appeals also stated: “Sergeant Gibson’s testimony that the moving figures
in the enlarged video corresponded to the moving persons in the normal size video,
was rationally based on his own observations of the video.”
The Court of Appeals also rejected Petitioner’s claim about Sergeant
Brannock, stating that Brannock did not give improper lay witness opinion
testimony. The Court of Appeals noted that “Brannock testified from his own
observations of the surveillance video and the driver’s license copy provided by the
store employee, that Davis . . . was one of the persons who followed the victim out
of the store and across Warren.” Id. Petitioner, in fact, stipulated that he was one of
10

the suspects depicted in a videotape inside the market and that an employee of the
market had identified him in the videotape as a regular customer. (10/24/13 Trial
Tr., ECF No. 7-11, PageID.608-610.)
Petitioner has not pointed to any Supreme Court decision that prohibits state
prosecutors from relying on expert or lay opinion testimony about surveillance
videotapes. And for reasons given by the Michigan Court of Appeals, it was not
fundamentally unfair to admit Gibson’s and Brannock’s testimony regarding the
videotapes at issue in Petitioner’s case. Petitioner’s right to due process was not
violated by the officers’ testimony.
Although Petitioner contends that the videotapes were hearsay and that the
officers’ testimony violated Michigan’s rules on hearsay and his right to confront
the evidence against him (ECF No. 1, PageID.64-65), the Michigan Court of Appeals
rejected this argument. The Court of Appeals stated that the videos did not qualify
as hearsay under state law and that Petitioner was afforded an opportunity to crossexamine Sergeants Gibson and Brannock. Davis, 2015 WL 8953522, at *8.
“[F]ederal habeas corpus relief does not lie for errors of state law.” Lewis v.
Jeffers, 497 U.S. 764, 780 (1990), and the state appellate court’s interpretation of
Michigan’s hearsay rules binds this Court on habeas review, Bradshaw v. Richey,
546 U.S. 74, 76 (2005). The state court’s rejection of Petitioner’s argument under

11

the Confrontation Clause is supported by the record. As pointed out by the Michigan
Court of Appeals, defense counsel
questioned Gibson about the range of the camera, and his compilation
of the sequential video. He elicited Gibson’s admission that the
defendants did not participate in the compilation of the sequential
video. He also elicited Gibson’s admission that Gibson did not see a
weapon discharge, and that he did not identify the subjects in the videos
as defendants. Gibson also admitted that he lost sight of the subjects
after they crossed Warren.
Davis, 2015 WL 8953522, at *8.
Petitioner was given an opportunity to cross-examine Sergeants Gibson and
Brannock, and he made good use of the opportunity. The state court’s rejection of
Petitioner’s claim under the Confrontation Clause was not contrary to, or an
unreasonable application, of Supreme Court precedent.

Habeas relief is not

warranted on Petitioner’s claim about the police officers’ expert and lay opinion
testimony.
B. The Expert Witness’s Methodology and Manipulation of the Videotapes
Petitioner’s second claim is a challenge to Sergeant Gibson’s method of
enlarging, cropping, and otherwise manipulating the surveillance videotapes.
According to Petitioner, the prosecutor failed to establish that Sergeant Gibson’s
technical methodology was based on principles and methods generally accepted
within the scientific community. (ECF No. 1, PageID.71, 74.) Petitioner further

12

alleges that the trial court erred by permitting Sergeant Gibson to testify as an expert
witness on his manipulation of the videotapes. (Id. at PageID.71.)
Petitioner concedes that Gibson could testify about the processes he used to
enlarge and manipulate the videos in an attempt to see what was in them, but he
contends that it was improper for Sergeants Gibson and Brannock to tell the jury
what was depicted in the videos. (Id. at PageID.74.) Petitioner claims that Gibson’s
testimony was prejudicial because Gibson used the videotapes to inform the jurors
that Petitioner and Harvey were Subjects A and B, that the two subjects could be
seen following the victim to the area where the victim was shot, and that the two
subjects were the only people around at the time of the shooting. (Id.) Petitioner
reiterates that, not only did the admission of the officers’ testimony violate Rule 702
of the Michigan Rules of Evidence, the testimony violated his rights to a fair trial
and to confront and cross-examine the evidence against him. (Id. at PageID.74-75.)
Petitioner’s claim that Gibson’s expert testimony did not qualify as expert
testimony under the Michigan Rules of Evidence lacks merit because it is a statelaw claim, which is not a basis for granting the writ of habeas review. See Lewis,
497 U.S. at 780; McGuire, 502 U.S. at 68; Hall, 563 F.3d at 239.

Further, as

succinctly expressed by the Michigan Court of Appeals, “Gibson’s testimony was
based on his technical knowledge of cropping and enlarging videos, and his

13

experience in enlarging videos and identifying subjects composed of enlarged
pixels.” Davis, 2015 WL 8953522, at *8.
The Court of Appeals agreed with Petitioner that the trial court erred in
allowing Gibson to testify regarding his enhancement of a still photograph to read
the license plate on the subjects’ vehicle. Id. But the Court of Appeals determined
that the error was harmless, and the court’s analysis was based on both Michigan
Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceutical, Inc., 509 U.S. 579 (1993).
In Daubert, the Supreme Court held that district courts must act as
“gatekeepers” to protect juries from misleading or unreliable expert
testimony by assessing the reliability of the expert’s principles and
methodologies used to reach the expert opinion or conclusion. Daubert,
509 U.S. at 589, 592–93, 113 S.Ct. 2786. Factors to be considered in
assessing reliability include whether the expert’s theory may be tested
or refuted, the degree of acceptance of the theory or technique within
the relevant community, and whether the theory has been a subject of
peer review or publication. Id. at 593–94, 113 S.Ct. 2786.
Deal v. Hamilton Cty. Bd. of Educ., 392 F.3d 840, 851 (6th Cir. 2004).
“The Supreme Court did not set a constitutional floor for the reliability of
scientific evidence in Daubert, see Norris v. Schotten, 146 F.3d 314, 335 (6th Cir.
1998), and screening evidence through Daubert’s standards is not constitutionally
required.” Bojaj v. Berghuis, 702 F. App’x 315, 321 (6th Cir. 2017). Daubert
“concerned the Federal Rules of Evidence which [are] not relevant to [Petitioner’s]
conviction.” Norris, 146 F.3d at 335.
14

Sergeant Gibson, moreover, testified that he did not alter the substance of the
original videotapes, that the original data was available for viewing, and that he
merely changed the format. (10/25/13 Trial Tr., ECF No. 7-12, PageID.813-816.)
Petitioner has no right to relief on his claim about Sergeant Gibson’s use of technical
methodology to enlarge, crop, and otherwise manipulate the surveillance videotapes.
C. The Prosecutor’s Use of Photographs and Videotapes
Petitioner alleges that the prosecutor violated his right to a fair trial by relying
on five photographs and a videotape that were not admitted in evidence. (ECF No.
1, PageID.76.) The five photographs were proposed exhibits 66-69 and 73, and the
videotape was a compilation of segments from the original videotapes placed in
chronological order. Petitioner argues under state law that these items should not
have been shown to the jury because they were not admitted in evidence. (Id. at
PageID.76-78.)
The Court “may not issue the writ on the basis of a perceived error of state
law.” Pulley v. Harris, 465 U.S. 37, 41 (1984). The transcript of trial, moreover,
indicates that the prosecutor moved to admit the photographs before a brief recess
in the trial. (10/25/13 Trial Tr., ECF No. 7-12, PageID.822.) Although there was
no express ruling on the exhibits after the recess, the prosecutor stated that the xhibits
were admitted. (Id. at PageID.823.)

15

Even if there was no formal admission of the photographs in evidence, they
were derived from the videotapes, which were admitted as exhibits 104 and 105. (Id.
at PageID.812-818.)

The Michigan Court of Appeals reasonably concluded that

any error in the admission of the photographs was harmless. Davis, 2015 WL
8953522, at *7. The Court of Appeals also determined that the failure to admit the
composite videotape was harmless error, because it was a compilation of still
photographs taken from other videotapes. Id.
On habeas review, an error is harmless unless it had a “substantial and
injurious effect or influence” on the verdict, Brecht v. Abrahamson, 507 U.S. 619,
623 (1993), and the state error resulted in actual prejudice, O’Neal v. Balcarcel, 933
F.3d 618, 624 (6th Cir. 2019) (quoting Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015)).
The alleged failure to admit the photographs and composite videotape did not result
in actual prejudice and could not have had a substantial or injurious effect on the
jury’s verdict because the evidence was duplicative of other evidence. Habeas relief
is not warranted on Petitioner’s claim.
D.

Sufficiency of the Evidence
Petitioner argues that the jury’s verdict was against the great weight of the

evidence and that the evidence at trial was insufficient to sustain his conviction. He
asserts that there was insufficient evidence to conclude that he shot the victim or that
he was anything more than merely present during the shooting.
16

There was no

testimony at trial that Petitioner possessed or fired a gun, and Petitioner maintains
that it is as reasonable to infer that he was merely present during the shooting as it is
to infer that he played some role in the shooting. (ECF No. 1, PageID.78-79.)
Petitioner also contends there was insufficient evidence that he aided and abetted the
shooter or intended to commit second-degree murder, as opposed to some other
crime, such as robbery or larceny. (Id. at 80.)
1. Clearly Established Federal Law
The contention that the jury’s verdict was against the weight of the evidence
is a state-law argument, and a federal habeas court may only review issues of federal
law. Nash v. Eberlin, 258 F. App’x 761, 764 n.4 (6th Cir. 2007). The only question
on habeas review of a challenge to the sufficiency of the evidence is whether “after
viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The
Court’s “review of a state-court conviction for sufficiency of the evidence is very
limited” because the Court “give[s] two layers of deference to state-court
convictions.” Thomas v. Stephenson, 898 F.3d 693, 698 (6th Cir. 2018).
First, on direct appeal, it is the responsibility of the jury—not the
court—to decide what conclusions should be drawn from evidence
admitted at trial. A reviewing court may set aside the jury’s verdict on
the ground of insufficient evidence only if no rational trier of fact could
have agreed with the jury. And second, on habeas review, a federal
court may not overturn a state court decision rejecting a sufficiency of
17

the evidence challenge simply because the federal court disagrees with
the state court. The federal court instead may do so only if the state
court decision was objectively unreasonable.
Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (citations and internal
quotation marks omitted). “Circumstantial evidence may support a conviction,
McKenzie v. Smith, 326 F.3d 721, 727 (6th Cir. 2003), and such evidence need not
remove every reasonable hypothesis except that of guilt. Walker v. Russell, 57 F.3d
472, 475 (6th Cir. 1995).” Apanovitch v. Houk, 466 F.3d 460, 488 (6th Cir. 2006).
The Jackson standard “must be applied with explicit reference to the
substantive elements of the criminal offense as defined by state law,” Jackson, 443
U.S. at 324 n.16, and in Michigan,
[t]he elements of second-degree murder are: (1) a death, (2) caused by
an act of the defendant, (3) with malice, and (4) without justification or
excuse. People v. Bailey, 451 Mich. 657, 669, 549 N.W.2d 325 (1996).
Malice is defined as the intent to kill, the intent to cause great bodily
harm, or the intent to do an act in wanton and wilful disregard of the
likelihood that the natural tendency of such behavior is to cause death
or great bodily harm. People v. Aaron, 409 Mich. 672, 728, 299
N.W.2d
304
(1980).
People v. Goecke, 457 Mich. 442, 463; 579 N.W.2d 868, 878 (1998). “The facts
and circumstances of the killing may give rise to an inference of malice. . . . Malice
may also be inferred from the use of a deadly weapon.” People v. Carines, 460
Mich. 750, 759; 597 N.W.2d 130, 136 (1999).
Mere presence, even with knowledge that an offense is about to be
committed or is being committed, is insufficient to show that a person
18

is an aider and abettor. People v. Rockwell, 188 Mich. App. 405, 412,
470 N.W.2d 673 (1991). The phrase “aiding and abetting” describes
all forms of assistance rendered to the perpetrator of a crime. Id. at 411,
470 N.W.2d 673. It includes all words or deeds that may support,
encourage, or incite the commission of a crime. People v. Palmer, 392
Mich. 370, 220 N.W.2d 393 (1974).
People v. Wilson, 196 Mich. App. 604, 614; 493 N.W.2d 471, 476 (1992).
2. Application
A death obviously occurred, and the victim’s three gunshot wounds suggest
that the shooter or shooters acted with malice.

The events depicted on the

videotapes indicated that there was no justification or excuse for the shooting. The
victim made a purchase at the market and apparently had no interaction with the
suspects before he walked down Warren Avenue and was followed by the suspects.
The main question was whether Petitioner caused the death or aided and
abetted someone else in shooting and killing the victim. The evidence at Petitioner’s
trial
established that Davis and Harvey arrived at the market together, in a
blue Buick driven by a third person. They entered the store separately,
but met inside the store and left together. However, they did not leave
in the car, and instead followed the victim out of the parking lot and
across the street on foot. They moved quickly toward the victim,
coming closer to him. A very short time after they left the camera
ranges, the victim was shot, and Harvey or Davis got into the Buick,
which the driver had moved to the location of the shooting.
Davis, 2015 WL 8953522, at *9.

19

A rational juror could have concluded from the evidence taken in the light
most favorable to the prosecution that Petitioner shot the victim or aided and abetted
Harvey in shooting the victim. In the state court’s words, “Harvey and Davis’s
coordinated plan and movement supports an inference that they acted jointly,
pursuant to a common plan, although only one of them fired a weapon.” Id. Further,
[t]here were no apparent alternate explanations for why the defendants
followed the victim instead of getting back into the Buick they came in,
or why they immediately left the scene after the victim was shot. There
also was no evidence suggesting another perpetrator.
Id. at *10.
Petitioner, nevertheless, contends that there was insufficient evidence that the
victim of the crime for which he was charged was Warrington Calvin Bryant.
Although one of Mr. Bryant’s daughters identified Mr. Bryant at the morgue,
Petitioner points out that the daughter did not testify about where her father died,
when he died, or how he died, and the medical examiner who performed the autopsy
on Mr. Bryant did not connect Mr. Bryant to the body found by the police. (ECF
No. 1, PageID.81-82.) The Court of Appeals found no merit in this argument
because
[t]he combination of the video evidence, the testimony of the officers
who arrived at the homicide scene, and the identification testimony of
the victim’s daughter was sufficient to establish beyond a reasonable
doubt that the identified victim was the same person who walked away
from the market and was fatally shot a short distance from the market.
Davis, 2015 WL 8953522, at *10. This Court agrees.
20

The evidence was sufficient to sustain Petitioner’s conviction, and the state
appellate court’s rejection of Petitioner’s claim was not contrary to, or an
unreasonable application of, Jackson. Petitioner is not entitled to habeas corpus
relief on his challenge to the sufficiency or weight of the evidence.
E. The Jury Instructions
Petitioner asserts that the trial court violated his rights to due process and a
fair trial by instructing the jury on flight and by declining to instruct the jury on
voluntary manslaughter. (ECF No. 1, PageID.83-85.) The Michigan Court of
Appeals rejected both arguments.
1. Voluntary Manslaughter
Petitioner contends that the trial court should have instructed the jury on
voluntary manslaughter as a lesser-included offense of murder, because there was
evidence of provocation. To support this contention, Petitioner points out that the
victim had two contusions on his arms and that he was armed with a gun. According
to Petitioner, this was strong circumstantial evidence that there was a physical fight
or altercation of some kind and that the shots were fired during an affray and in the
heat of passion. (Id. at PageID.84-85.) The Michigan Court of Appeals disagreed
and concluded that the trial court did not abuse its discretion by failing to instruct
the jury on voluntary manslaughter, because there was no evidence of provocation,
an essential element of voluntary manslaughter.
21

This Court finds no merit in Petitioner’s claim, because the Supreme Court
has not determined whether the failure to give jury instructions on lesser-included
offenses in non-capital cases violates the right to due process. See Beck v. Alabama,
447 U.S. 625, 638 n.14 (1980) (stating that “[w]e need not and do not decide whether
the Due Process Clause would require the giving of such instructions in a noncapital
case”). The “failure to instruct on a lesser included offense in a noncapital case is
not ‘such a fundamental defect as inherently results in a miscarriage of justice or an
omission inconsistent with the rudimentary demands of fair procedure.’ ” Scott v.
Elo, 302 F.3d 598, 606 (6th Cir. 2002) (quoting Bagby v. Sowders, 894 F.2d 792,
797 (6th Cir. 1990) (en banc)). “Declining to grant a request to ‘present a statecreated, not federally required, defense is . . . at worst . . . an error of state law; and
. . . . a violation of state law does not violate the Constitution.” Keahey, 978 F.3d at
479 (quoting Eaglin v. Welborn, 57 F.3d 496, 501 (7th Cir. 1995) (en banc)).
Even if Petitioner’s claim were cognizable here, the element of provocation is
what distinguishes manslaughter from murder. People v. Pouncey, 437 Mich. 382,
388; 471 N.W.2d 346, 350 (1991). Voluntary manslaughter has the following
components:
First, the defendant must kill in the heat of passion. Second, the passion
must be caused by an adequate provocation. Finally, there cannot be a
lapse of time during which a reasonable person could control his
passions.

22

Id. The provocation is adequate if it would cause a reasonable person to lose control.
Id., 437 Mich. at 389; 471 N.W.2d at 350.
There was no evidence at trial that the victim did anything to provoke
Petitioner or Harvey or even that he interacted with them before they pursued him.
Petitioner, nevertheless, argues that contusions or bruises on the victim’s arms were
proof that there was an altercation and provocation.
The medical examiner’s testimony undermines Petitioner’s argument. She
testified that the victim was shot three times and that one of the potentially
incapacitating injuries was consistent with the victim’s arm being down when he
was shot.

(10/24/13 Trial Tr., ECF No. 7-11, PageID.670-671.) Another bullet

entered the victim from the back (id. at PageID.671-673), and the contusions were
consistent with an assault (id. at PageID.681). The victim apparently was carrying
a weapon on his person before the shooting, but his daughter testified that he carried
the gun for protection because the neighborhood was not safe. (Id. at PageID.697.)
In the absence of any evidence of provocation, the trial court did not violate
Petitioner’s rights to due process or a fair trial by failing to instruct the jury on
voluntary manslaughter. The state appellate court’s rejection of Petitioner’s claim
for lack of merit was not contrary to, or an unreasonable application of, any Supreme
Court decision.

23

2. Flight3
Petitioner asserts that the trial court should not have instructed the jury on
flight because, at most, he left the scene of a violent event and that is not evidence
of flight. The Michigan Court of Appeals disagreed and concluded that “the flight
instruction was appropriate.” Davis, 2015 WL 8953522, at *11. The Court of
Appeals reached this conclusion after summarizing the evidence as follows:
The evidence indicated that Harvey and Davis arrived at the market in
a blue Buick, but left the market’s parking lot on foot, proceeding in the
same direction as the victim. After the victim was shot, the suspects
entered a waiting car and left the scene in the car. This evidence
supported an inference that Davis fled the crime scene because of his
involvement in the victim’s shooting death.
Davis, 2015 WL 8953522, at *11.
Petitioner argues that the Michigan Court of Appeals misread the trial
testimony when it stated that the suspects entered a waiting car and left the scene in
the car. There was no direct evidence that the two suspects who followed the victim
entered a waiting car after the shooting, and the Supreme Court “has consistently
doubted the probative value in criminal trials of evidence that the accused fled the
scene of an actual or supposed crime.” Wong Sun v. United States, 371 U.S. 471,
483 n.10 (1963).
Petitioner’s argument on this issue appears on page 39 of his state appellate brief.
That page is missing from the scanned copy of the habeas petition, but it is visible
in the volume containing the parties’ briefs in the Michigan Supreme Court. See
ECF No. 7-19, PageID.1461.

3

24

But one witness testified that he saw a person run to a car on McKinley Street
at the time of the shooting; although the witness did not see the person get in the car,
he saw the car drive away. (10/25/13 Trial Tr., ECF No. 7-12, PageID.715-716,
721). Another witness admitted that, in his statement to the police on the day after
the shooting, he informed the police that a man jumped into a car which drove
southbound on McKinley Street. (Id. at PageID.729-733.) Ms. Pullen saw a car
cross Warren Avenue on McKinley Street after she heard three gunshots. The car
stopped briefly and then sped away. (Id. at PageID.744-747, 758.) And according
to Sergeant Gibson’s interpretation of the videotape, the car stopped, a light came
on consistent with a car door opening, and the car then moved out of sight. (10/28/13
Trial Tr., ECF No. 7-13, PageID.859-860.)
The jurors could have inferred from this evidence that the two suspects fled
from the scene of the crime after the shooting. Under state law, “[t]he term ‘flight’
has been applied to such actions as fleeing the scene of the crime . . . .” People v.
Coleman, 210 Mich. App 1, 4; 532 NW2d 885, 887 (1995) (citing 29 AmJur2d,
Evidence, § 532, p. 608). The trial court, therefore, did not violate Petitioner’s rights
to due process and a fair trial by instructing the jury on flight.
Even if the trial court erred by instructing on flight, “instructions that contain
errors of state law may not form the basis for federal habeas relief,” Gilmore v.

25

Taylor, 508 U.S. 333, 342 (1993), and the trial court did not say that flight was proof
of guilt. Instead, the court said:
Now there has been some evidence that the defendant ran away after
the alleged crime. This evidence does not prove guilt. A person may
run or change his hair style for innocen[t] reasons.
(10/29/13 Trial Tr., ECF No. 7-14, PageID.1008.) The court subsequently gave
another instruction on flight, stating:
There may have been some evidence that the defendant tried to
run away after the alleged crime. This evidence does not prove guilt.
A person may run or hide for innocent reasons such as panic,
mistake or fear. However, a person may also run or hide because of a
consciousness of guilt.
You must decide whether the evidence is true and if true whether
it shows that the defendant had a guilty state of mind.
(Id. at PageID.1014-1015.)
These instructions did not undermine the presumption of innocence, and
because there was circumstantial evidence that Petitioner left the area after the
shooting, he has no right to relief on his claim about the jury instruction on flight.
F. The Prosecutor
Petitioner alleges that repeated instances of prosecutorial misconduct during
closing arguments deprived him of due process and a fair trial. (ECF No. 1,
PageID.86.) Petitioner asserts that the prosecutor argued facts not in evidence,

26

appealed to the jury’s sympathy, and vouched for Sergeant Gibson’s credibility. (Id.
at PageID.87-89.)
Petitioner maintains that the prosecutor’s conduct was not harmless and that,
even if the individual instances of prosecutorial misconduct are not considered
reversible, they require reversal when viewed in the aggregate. (Id. at PageID.90.)
Petitioner also argues that, if the Court considers his argument forfeited due to his
trial attorney’s failure to object to the prosecutor’s conduct, relief should be granted
on the ground of ineffective assistance of trial counsel. (Id.)
The Michigan Court of Appeals reviewed Petitioner’s claim for “plain error
affecting [Petitioner’s] substantial rights” because Petitioner did not object to the
prosecutor’s remarks at trial. Davis, 2015 WL 8953522 at *12. The Court of
Appeals then stated that, to the extent the prosecutor mischaracterized Ms. Pullen’s
testimony, the misstatement did not materially detract from, or add to, the
prosecution’s proofs, and the trial court’s instruction -- that the attorneys’ statement
and arguments were not evidence – dispelled any prejudice and protected
Petitioner’s rights. Id.
The Court of Appeals opined that the prosecutor’s remarks about ballistics
were not improper. As for the prosecutor’s remarks about the victim, the Court of
Appeals stated that the remarks were not a blatant appeal to the jury’s sympathy, and
even if the remarks were considered improper, the trial court’s jury instruction -- that
27

the jury should not be influenced by sympathy -- protected Petitioner’s rights. Id.
The Court of Appeals did not address Petitioner’s argument that the prosecutor
vouched for Sergeant Gibson’s credibility.
1. Procedural Default
The State argues that Petitioner’s claim is procedurally defaulted because the
Michigan Court of Appeals reviewed Petitioner’s claim for “plain error.” The
doctrine of procedural default generally precludes a federal court from reviewing the
merits of a state prisoner’s claims when the state court declined to hear the claims
due to the prisoner’s failure to abide by a state procedural rule. Martinez v. Ryan,
566 U.S. 1, 9 (2012). Stated differently, “[w]hen a state court refuses to consider a
habeas claim ‘due to a state procedural rule that prevents the state courts from
reaching the merits of the petitioner’s claim, that claim is procedurally defaulted and
may not be considered by the federal court on habeas review.’ ” Kissner v. Palmer,
826 F.3d 898, 904 (6th Cir. 2016) (quoting Seymour v. Walker, 224 F.3d 542, 54950 (6th Cir. 2000) (citing Wainwright v. Sykes, 433 U.S. 73, 80, 84-87 (1977)).
A petitioner may avoid this procedural default only by showing that
there was cause for the default and prejudice resulting from the default,
or that a miscarriage of justice will result from enforcing the procedural
default in the petitioner’s case. See Sykes, 433 U.S. at 87, 90-91, 97 S.
Ct. 2497. In order to establish cause, a habeas corpus petitioner must
show that “some objective factor external to the defense” prevented the
petitioner’s compliance with a state procedural rule. Murray v. Carrier,
477 U.S. 478, 488, 106 S. Ct. 2639, 91 L.Ed 2d 397 (1986).
Id.
28

The relevant state procedural rule here is Michigan’s contemporaneousobjection rule, which requires defendants in criminal cases to preserve an issue of
prosecutorial misconduct by making a timely contemporaneous objection and
requesting a curative jury instruction. People v. Bennett, 290 Mich. App. 465, 475;
802 N.W.2d 627, 634-35 (2010). Petitioner violated this rule by failing to object at
trial to the prosecutor’s closing argument.
The Michigan Court of Appeals enforced the contemporaneous-objection rule
by reviewing Petitioner’s claim for “plain error.” Michigan’s contemporaneousobjection rule is an adequate and independent state ground for denying review of a
federal constitutional claim, because it is both well-established and normally
enforced. Taylor v. McKee, 649 F.3d 446, 450-51 (6th Cir. 2011). The remaining
issue is whether Petitioner has shown “cause” for his procedural default and resulting
prejudice.
Petitioner asserts that his trial attorney’s ineffectiveness was cause for his
failure to object to the prosecutor’s disputed remarks. (ECF No. 1, PageID.96.)
Constitutionally ineffective assistance of counsel can be cause for a procedural
default. Carrier, 477 U.S. at 488; Hodges v. Colson, 727 F.3d 517, 530 (6th Cir.
2013). But to prevail on a claim about trial counsel, Petitioner must show that his
trial “counsel’s performance was deficient” and “that the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
29

To evaluate whether trial counsel was ineffective, the Court looks to
Petitioner’s underlying claims about the prosecutor’s remarks.

The relevant

question on review of a prosecutor’s closing argument “is whether the prosecutor[’s]
comments ‘so infected the trial with unfairness as to make the resulting conviction
a denial of due process.’ ” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
2. Facts not in Evidence
a. Ms. Pullen’s testimony
Petitioner claims that the prosecutor distorted Purvis Charlene Pullen’s
testimony when he said that Ms. Pullen: ran to her window, looked out and saw an
argument (10/28/13 Trial Tr., ECF No. 7-13, PageID.935-36); heard some yelling
(id. at PageID.940); heard some shots on one side of the road, and then heard shots
coming from the car (id. at PageID.942-43).
Petitioner is correct that Ms. Pullen did not testify that she heard an argument,
yelling, or any shots coming from the car. Instead, she testified that she heard a
voice or voices coming from the car and that she heard three gunshots before she
went to the window. (10/25/13 Trial Tr., ECF No. 7-12, PageID.744, 747, 753-754,
756.)
“It is improper for a prosecutor, during closing arguments, to bring to the
attention of the jury any ‘purported facts that are not in evidence and are prejudicial.’
30

” Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000) (quoting United States v.
Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995)). But the prosecutor’s misstatement about
Ms. Pullen’s testimony did not prejudice Petitioner, because the prosecutor told the
jurors two times that, if he said something about the evidence that was not what they
recalled, they should ignore him and not listen to him, because they were the judges
of the facts. (10/28/13 Trial Tr., ECF No. 7-13, PageID.740-741.)
What is more, whether Ms. Pullen heard voices or whether she heard an
argument and yelling was inconsequential. Even the misstatement that Pullen heard
gunshots coming from the car was inconsequential, because the videotapes showed
Petitioner and Harvey following the victim on foot. For these reasons, trial counsel
was not ineffective for failing to object to the prosecutor’s remarks about Ms.
Pullen’s testimony.
b. Ballistics
Petitioner next contends that the prosecutor relied on facts not in evidence by
giving the jury the following “lesson” on ballistics:
But we have two bullets here both 40 calibers[.] Michigan State Police
report says they were both 40 calibers. But not only were they both
calibers but they had the same number [of] what they call land and
grooves through the barrel which are rigid and which makes the bullet
spin.
The same number meaning of the similar manufacturer barrel
and the same caliber.

31

(Id. at PageID.942.) According to Petitioner, these comments were meant to
convince the jury that a bullet taken from the victim’s body and a bullet of unknown
origin were fired from the same weapon.
Petitioner fails to point out that, immediately after making the remarks quoted
in the previous paragraph, the prosecutor said that the person who analyzed the
bullets “couldn’t say exactly [if] it was from the same gun[;] it wasn’t enough details
to compare.” (Id). The parties also stipulated that the two bullets “could not be
identified or eliminated as having been fired in the same barrel due to the lack of
microscopic markings in sufficient agreement.” (Id. at PageID.926-927.) Because
the prosecutor’s “lesson on ballistics” was not prejudicial, trial counsel was not
ineffective for failing to object to the remarks.
3. Appealing to the Jury’s Sympathy
Petitioner claims that the prosecutor made an improper appeal to the jury’s
sympathy when he said:
Calvin Warrington Bryant was a man and father. A man that
lived in our community and he is no longer with us[;] he’s dead.
He was shot to death on December 1st, 2012. We never got to
hear from him.
(Id. at PageID.933.)
Prosecutors have a “duty to refrain from improper methods calculated to
produce a wrongful conviction,” Viereck v. United States, 318 U.S. 236, 248 (1943),
32

and “numerous cases hold that prosecutorial statements solely designed to inflame
the jurors’ passions are not appropriate.” United States v. Beasley, 700 F. App’x
394, 398 (6th Cir. 2017) (internal and end citations omitted). But the prosecutor’s
comments about Mr. Bryant were based on obvious facts gleaned from the testimony
at trial.
The trial court, moreover, charged the jury not to let sympathy influence their
decision (10/29/13 Trial Tr., ECF 7-14, PageID.1003), and juries are presumed to
follow a court’s instructions to them. Richardson v. Marsh, 481 U.S. 200, 211
(1987); Stanford v. Parker, 266 F.3d 442, 459 (6th Cir. 2001). Trial counsel’s failure
to object to the prosecutor’s remarks about the victim did not prejudice the defense.
4. Vouching for Sergeant Gibson’s Credibility
Petitioner’s final argument about the prosecutor is that the prosecutor vouched
for Sergeant Gibson’s credibility when he said:
The video production[;] a lot of suggestions [were] put out there
for you to conclude that Sergeant Gibson made this video up.
You think there was evidence of that [then] God bless you[,] I
don’t. Sergeant Gibson didn’t alternate (sic)[;] he cropped and
enlarged[;] that’s what he testified to you.
(10/29/13 Trial Tr., ECF No. 7-14, PageID.1001.)
Improper vouching occurs when a prosecutor supports the credibility
of a witness by indicating a personal belief in the witness’s credibility
thereby placing the prestige of the office of the [prosecuting attorney]
behind that witness. See, e.g., Taylor v. United States, 985 F.2d 844,
33

846 (6th Cir. 1993); United States v. Martinez, 981 F.2d 867, 871 (6th
Cir. 1992).
United States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999) (alteration added).
The prosecutor at Petitioner’s trial expressed his personal belief that Sergeant
Gibson did not fabricate the videotapes, but he did not imply that he had special
knowledge of facts not before the jury. He appears to have made the remark in
response to defense counsel’s remarks during closing argument where she said that:
the video had been amplified and altered, invisible things were inferred, and the
video did not seem to say what Sergeant Gibson said; Gibson put together a
production that was offensive and which meant that “you get to put things where
you want them and make it look like he did something;” the video was enhanced
three to five hundred percent even though the surveillance cameras went only 40
feet; Gibson “fixed” Ms. Pullen’s testimony that she did not see one person on the
street; Gibson said it looked like a car door opening even though he said that for the
first time at trial and previously testified that he lost sight of the car and did not know
where it went; Gibson was selling a story to the jury to save the day; and Gibson’s
video insulted her intelligence. (10/29/13 Trial Tr., ECF No. 7-14, PageID.979, 984985, 990, 995.)
The prosecutor was “entitled to wide latitude in rebuttal argument” and to
“fairly respond to arguments made by defense counsel.” Angel v. Overberg, 682
F.2d 605, 607-08 (6th Cir. 1982) (citing DeChristoforo, 416 U.S. 637). Trial
34

counsel’s failure to object to the prosecutor’s remarks, therefore, did not amount to
deficient performance.
The trial court, moreover, charged the jurors that it was their job to decide the
facts based on the admissible evidence and that they should decide which witnesses
they believed and how important they thought the testimony was. (10/29/13 Trial
Tr., ECF No. 7-14, PageID.1004, 1006-1007, 1009.) The court told the jurors that
they did not have to accept everything a witness said, not even an expert’s opinion,
and that they were free to believe all, none, or part of any person’s testimony. (Id.
at PageID.1009, 1011.) The trial court also stated that the lawyers’ statements and
arguments were not evidence and were only meant to help the jury understand the
evidence and each side’s legal theories. (Id. at PageID.1006.) In light of these
instructions, trial counsel’s failure to object to the prosecutor’s alleged vouching did
not prejudice the defense.
5. Summary
The prosecutor’s disputed remarks did not infect Petitioner’s trial with such
unfairness as to make the resulting conviction a denial of due process. Trial
counsel’s failure to object to the prosecutor’s remarks, therefore, was not
constitutionally ineffective assistance or “cause” for Petitioner’s procedural default,
and Petitioner has failed to show that he was prejudiced by his procedural default.

35

In the absence of “cause and prejudice,” a habeas petitioner may pursue a
procedurally defaulted claim only if he can demonstrate that failure to consider his
claim will result in a fundamental miscarriage of justice. Coleman v. Thompson,
501 U.S. 722, 750 (1991). “A fundamental miscarriage of justice results from the
conviction of one who is ‘actually innocent.’ ” Lundgren v Mitchell, 440 F.3d 754,
764 (6th Cir. 2006) (citing Carrier, 477 U.S. at 496.) “To be credible, [a claim of
actual innocence] requires [the] petitioner to support his allegations of constitutional
error with new reliable evidence – whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence – that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner has not presented the Court with any new and credible evidence of
actual innocence, and a miscarriage of justice will not occur as a result of the Court’s
failure to address the substantive merits of Petitioner’s prosecutorial-misconduct
claim. As a result, Petitioner’s prosecutorial-misconduct claim fails.
G. Denial of an Evidentiary Hearing; Trial Counsel
In his seventh claim, Petitioner asks to have his case remanded to the trial
court for an evidentiary hearing on his claims about his trial attorney. (ECF No. 1,
PageID.91-94.) Petitioner states that his attorney was ineffective because she did
not object to (1) the prosecutor’s allegedly improper remarks during closing

36

arguments (id. at PageID.92-93), and to (2) testimony about five photographs and a
chronological videotape that were never admitted in evidence (id. at PageID.93.)
The Michigan Court of Appeals denied Petitioner’s request for an evidentiary
hearing for more than one reason: Petitioner did not raise his ineffectiveness claim
in a motion for a new trial or an evidentiary hearing; his motion for a remand was
untimely; and the court rule that he cited for the state court’s remand authority was
inapplicable. Davis, 2015 WL 8953522, at *12. The Court of Appeals then cited
the correct standard of review for ineffective-assistance-of-counsel claims and
concluded that Petitioner’s ineffectiveness claim lacked merit. Id. at *13.
1. Legal Framework
Petitioner points to no Supreme Court holding that requires state courts as a
matter of due process to hold an evidentiary hearing on a claim about trial counsel.
And the contention that the state court improperly denied him an evidentiary hearing
on his claim about trial counsel is not cognizable in a habeas corpus proceeding.
Cornwell v. Bradshaw, 559 F.3d 398, 411 (6th Cir. 2009).
To prevail on his substantive claim about trial counsel, Petitioner must show
that trial “counsel’s performance was deficient” and “that the deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687. The deficient-performance
prong “requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
37

Petitioner “must show that counsel’s representation fell below an objective standard
of reasonableness.” Id. at 688.
The “prejudice” prong “requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.
Petitioner must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
“The standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter, 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.
2. Failure to Object
The Court concluded above that trial counsel was not ineffective for failing to
object to the prosecutor’s allegedly improper remarks during closing arguments.
See Section III.F.5. Petitioner’s only other claim about trial counsel is that she failed
to object to testimony about five photographs and a composite videotape that were
not admitted in evidence.
38

Trial counsel did object to Sergeant Gibson’s testimony about the composite
videotape. (10/28/13 Trial Tr., ECF No. 7-13, PageID.845, 848-850, 855.) She
made so many objections that the trial court suggested to counsel that she stop
making the same objection. (Id. at PageID.850.) Trial counsel also cross-examined
Gibson about the compilation videotape (id. at PageID.865-891), and as pointed out
above, a portion of her closing argument consisted of attacking Gibson’s production
of the videotape and his testimony about what the videotape depicted.
The Michigan Court of Appeals, moreover, stated that trial counsel was not
required to object to the photos and videotape because they were duplicative of other
evidence that was admitted. Davis, 2015 WL 8953522, at *13. Any objection to the
disputed items or to testimony about the items would have lacked merit, and
“[o]mitting meritless arguments is neither professionally unreasonable nor
prejudicial.” Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013).
The state appellate court’s rejection of Petitioner’s ineffectiveness claim was
not contrary to, or an unreasonable application of, Strickland. Petitioner, therefore,
has no right to relief on his claim.
H. Cumulative Errors
In his eighth and final claim, Petitioner argues that, even if no single
assignment of error is sufficient for reversal, the totality of trial errors deprived him
of a fair trial. (ECF No. 93-94.) The Michigan Court of Appeals rejected this claim
39

because, in its opinion, Petitioner had established only two meritorious issues, 4 the
errors were harmless, and when considered cumulatively, they did not deprive
Petitioner of a fair trial. Davis, 2015 WL 8953522, at *14.
This Court finds no merit in Petitioner’s argument because “the Supreme
Court has not recognized cumulative error as a basis for relief in non-capital cases.”
Kissner, 826 F.3d at 903–04. Therefore, it cannot be said that the decision of the
Michigan Court of Appeals was contrary to any Supreme Court decision so as to
warrant habeas relief under AEDPA. Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir.
2002).
IV. Conclusion
Petitioner’s prosecutorial-misconduct claim is procedurally defaulted, and the
state appellate court’s adjudication of his other claims was not objectively
unreasonable or so lacking in justification that there was an error beyond any
possibility for fairminded disagreement. The Court, therefore, denies the petition
for a writ of habeas corpus.
The Court declines to grant a certificate of appealability because reasonable
jurists could not disagree with the Court’s resolution of Petitioner’s claims, nor
The Court of Appeals stated that the two meritorious issues, were: “(1) the trial
court’s admission of Gibson’s testimony that he used unspecified technology to
‘flatten’ and read a photograph of an angled license plate, and (2) the failure of the
prosecutor to formally admit the sequential video into evidence.” Davis, 2015 WL
8953522, at *14.
4

40

conclude that the issues deserve encouragement to proceed further. Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484
(2000)). Petitioner, nevertheless, may proceed in forma pauperis on appeal if he
appeals this decision because an appeal could be taken in good faith. 28 U.S.C.
§1915(a)(3).

S/DENISE PAGE HOOD
DENISE PAGE HOOD
CHIEF JUDGE, UNITED STATES DISTRICT COURT
Dated: September 30, 2021

I hereby certify that a copy of the foregoing document was served upon counsel
of record or party on September 30, 2021, by electronic and/or ordinary mail.
S/Teresa McGovern
Case Manager

41