Davis v. Burgess

Filing 14

Opinion and Order Denying Petition for Writ of Habeas Corpus; Denying Motions for Appointment of Counsel, To Expand Record, and For Evidentiary Hearing; Declining to Issue Certificate of Appealability; and Denying Petitioner Leave to Appeal In Forma Pauperis. Signed by District Judge Susan K. DeClercq. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FELIX ANTONIO DAVIS III,
Petitioner,

Case No. 2:23-cv-11532

v.

Honorable Susan K. DeClercq
United States District Judge

MICHAEL BURGESS,
Respondent.
_______________________________/
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS (ECF No. 1); DENYING MOTIONS FOR APPOINTMENT OF
COUNSEL (ECF No. 7), TO EXPAND RECORD (ECF No. 8), AND FOR
EVIDENTIARY HEARING (ECF No. 9); DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY; AND DENYING PETITIONER
LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner Felix Davis, confined at the Oaks Correctional Facility in Manistee,
Michigan, seeks the issuance of a writ of habeas corpus under 28 U.S.C. § 2254. In
his pro se application, Petitioner challenges his conviction for three counts of firstdegree criminal sexual conduct, MICH. COMP. LAWS § 750.520b; one count of
second-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520c; one count
of assault with intent to do great bodily harm less than murder, MICH. COMP. LAWS
§ 750.84, one count of felon in possession of a firearm, MICH. COMP. LAWS §
750.224f, and one count of possession of a firearm in the commission of a felony,

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MICH. COMP. LAWS § 750.227b. For the reasons stated below, the application for a
writ of habeas corpus is denied.
I. BACKGROUND
Petitioner was convicted following a jury trial in the Wayne County Circuit
Court. This Court recites verbatim the relevant facts relied upon by the Michigan
Court of Appeals, which are presumed correct on habeas review under 28 U.S.C. §
2254(e)(1), see Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
Defendant found the victim’s profile on a social media website and
contacted her. Defendant and the victim agreed to “chill” and smoke
marijuana together. Defendant picked up the victim and drove her to
his home. When the victim first arrived, she was not feeling well, so
she took a nap. When she woke up, defendant asked if he could pay her
for sex. The victim declined. Defendant then raped the victim three
times. He also punched her in the face, pulled out her weave, and
temporarily locked her in the basement. The victim escaped after
defendant left her alone when he went to answer the door. The victim
ran to a gas station, and individuals there called the police. Four months
after the incident, the police found and arrested defendant. Defendant
was then charged, convicted, and sentenced.
People v. Davis, No. 345792, 2020 WL 2501709, at *1 (Mich. Ct. App. May 14,
2020) (per curiam), appeal denied, 949 N.W.2d 712 (Mich. 2020).
In addition to the victim’s testimony, the prosecution presented testimony that
Petitioner had been convicted of the statutory rape of a minor victim:
At trial, MG testified that in 2008, when she was a minor, she lived with
defendant. At that time, defendant was a pimp, and would use other
minor children who lived with him as prostitutes. Although defendant
used MG as a police lookout instead of a prostitute, MG described a
sexual encounter with defendant. MG told defendant to stop, but
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defendant refused and continued to have sex with MG. MG also
testified to an instance where defendant physically assaulted her after
MG spent the night at another man’s home. When MG returned to
defendant’s home, defendant ran outside with a gun and yelled at the
man. Defendant locked MG out of the house, but MG was able to find
a way inside. Later that night, defendant smacked MG, locked her in a
closet for an unknown length of time, and pulled MG’s hair. MG also
testified that she had seen defendant with a gun on other occasions.
Id. at *5.
Petitioner’s conviction was affirmed on appeal. Id.
Petitioner filed a postconviction motion for relief from judgment with the trial
court, which was denied. People v. Davis, No. 18-003417-FC (Wayne Cty. Cir. Ct.
Nov. 4, 2021); ECF No. 12-16 at PageID.1409–19. Both the Michigan Court of
Appeals and the Michigan Supreme Court denied Petitioner leave to appeal. People
v. Davis, No. 361156 (Mich. Ct. App. Aug. 18, 2022) (ECF No. 12-21 at
PageID.1741), appeal denied, 985 N.W.2d 518 (Mich. 2023) (mem.) (ECF No. 1223 at PageID.1960).
Petitioner seeks a writ of habeas corpus on the following grounds: (1)
Petitioner was denied his Sixth Amendment right to self-representation, (2)
Petitioner was denied the effective assistance of trial counsel, (3) Petitioner was
denied the effective assistance of appellate counsel, (4) Petitioner was denied a fair
trial by the admission of prior bad-acts evidence, and (5) Petitioner was denied a fair
trial because of prosecutorial misconduct. See ECF No. 1 at PageID.19.

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II. STANDARD OF REVIEW
28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas
cases:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim–
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.

A state-court decision is “contrary to” clearly established federal law if the
state court arrives at a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case differently than the Supreme
Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S.
362, 405 (2000). An “unreasonable application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the facts of a prisoner’s
case.” Id. at 409. A federal habeas court may not “issue the writ simply because that
court concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly.” Id. at 411. “A
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state court’s determination that a claim lacks merit precludes federal habeas relief so
long as ‘fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
Petitioner raised his first, second, third, and fifth claims in his postconviction
motion for relief from judgment. ECF No. 12-16 at PageID.1410–11. In reviewing
a claim under AEDPA, this Court must give deference to “the last state court to issue
a reasoned opinion on the issue.” Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir.
2010) (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005). The Michigan Court
of Appeals and the Michigan Supreme Court both denied petitioner’s postconviction
application for leave to appeal in unexplained one-sentence orders. See ECF Nos.
12-21 at PageID.1741; 12-23 at PageID.1960.
Accordingly, this Court must “look through” these decisions to the Wayne
County Circuit Court opinion denying the motion for relief from judgment, which
was the last state court to issue a reasoned opinion. Hoffner, 622 F.3d at 505. Then
this Court can decide whether that court’s adjudication of Petitioner’s first, second,
third, and fifth claims was “contrary to,” or “an unreasonable application of” clearly
established federal law as determined by the United States Supreme Court. See
Hamilton v. Jackson, 416 F. App’x 501, 505 (6th Cir. 2011).

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III. ANALYSIS
A. Motions for Counsel and Evidentiary Hearing
Petitioner filed motions for appointment of counsel and for an evidentiary
hearing. ECF Nos. 7; 9.
There is no constitutional right to counsel in habeas proceedings. Cobas v.
Burgess, 306 F.3d 441, 444 (6th Cir. 2002) (citing McCleskey v. Zant¸ 499 U.S. 467,
495 (1987)). As discussed below, Petitioner’s claims lack merit. Thus, this Court
will deny Petitioner’s request for the appointment of counsel, see Lemeshko v.
Wrona, 325 F. Supp. 2d 778, 788 (E.D. Mich. 2004).
Because his claims lack merit, Petitioner is also not entitled to an evidentiary
hearing. See Stanford v. Parker, 266 F.3d 442, 459–60 (6th Cir. 2001).
B. Motion to Expand Record
Petitioner moved to expand the record to include evidence that he filed a
grievance against his second appellate attorney for failing to timely file his pro per
supplemental brief on appeal with the Michigan Court of Appeals, which led to her
suspension from practicing law for 90 days. ECF No. 8 at PageID.217.
Under Rule 7(a) of the Rules Governing § 2254 Cases, if a habeas petition is
not summarily dismissed, then the district court “may direct the parties to expand
the record by submitting additional materials relating to the petition.” This is one of
several measures that courts may use in habeas cases “to avoid the need for an
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evidentiary hearing.” Blackledge v. Allison, 431 U.S. 63, 81–82 (1977). The decision
to expand a habeas record is within the sound discretion of the district court. See
West v. Bell, 550 F.3d 542, 551 (6th Cir. 2008).
However, as discussed below, Petitioner fails to state a claim as to his
ineffective assistance of appellate counsel claim. See Part III.E., infra. Despite the
limited factual record, any expansion of the record would not change this Court’s
ruling as to this claim. As such, the motion to expand the record will be denied.
C. Claim 1: Self-Representation
Petitioner first argues he was denied his right to self-representation. Petitioner
claims that he requested to represent himself at a pretrial conference on August 8,
2018, at a second pretrial conference on August 24, 2018, and on the first day of
trial, August 27, 2018. ECF No. 1 at PageID.29.
Petitioner’s claim was rejected by the trial court on postconviction review:
The defendant alleges that the trial court erred when it ignored his
request to proceed pro se after the court denied his request for a new
attorney. At a pretrial hearing on August 8, 2018, the defendant
complained about his trial attorney and alleged that he withheld
evidence from him, which he quickly retracted when the court
questioned him. He alleged that he didn’t trust his attorney and
wouldn’t go to trial with him. The attorney stated that the defendant
was insisting that he file motions that were legally untenable and
frivolous. The trial court noted that it was less than 3 weeks until the
trial and the defendant had not mentioned any problems with his
attorney before that point. The defendant alleges that when he told the
court, ‘So, I can stand on my own now,’ he was asserting his right to
represented himself at trial.
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********************************************************
The defendant did not express that he wanted to represent himself at
trial when he made a vague statement about ‘standing on his own.’
At the next pretrial hearing the defendant again complained about his
attorney and alleged that his attorney wasn’t representing him. The
defendant swore at the court and stated that he wasn’t going to
participate in his trial. The defendant left the courtroom before the
hearing was completed after telling the court that he wanted to leave.
At no time did he express a desire to represent himself at trial.
On the morning of trial the defense attorney told the court that the
defendant wanted to represent himself. The defendant refused to come
out of the holding cell to the courtroom and refused to go to the room
that had been set up with a camera for him to watch the proceedings.
The trial court found that the defendant had purposely absented himself
from the trial by his disruptive conduct. The court noted that the
defendant had previously behaved disrespectfully and had sworn at the
court. The court’s deputy testified that the defendant told him that he
intended to make a scene at his trial and that he wasn’t going to trial.
The defendant’s right to represent himself was forfeited by his
disruptive conduct and his statements that he wasn’t going to go to trial.
At no time did the defendant make an unequivocal statement that he
wanted to represent himself. This claim has no merit.
ECF No. 12-16 at PageID.1411–12.
Criminal defendants have a constitutional right to conduct their own defense
at trial if they voluntarily and intelligently elect to do so. Martinez v. Court of Appeal
of California, Fourth App. Dist., 528 U.S. 152, 154 (2000); Faretta v. California,
422 U.S. 806, 807 (1975). However, the right to self-representation is not absolute.
Martinez, 528 U.S. at 161.
Moreover, a defendant’s request for self-representation must be made clearly
and unequivocally. See Faretta, 422 U.S. at 835; see also United States v. Martin,
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25 F.3d 293, 295 (6th Cir. 1994) (“To assert the right of self-representation, a
defendant must do so unequivocally.”) (citing Hamilton v. Vasquez, 17 F.3d 1149
(9th Cir. 1994), abrogated on other grounds by Calderon v. Coleman, 525 U.S. 141
(1998)).
Finally, a defendant’s invocation of his right of self-representation must be
timely made. See Moore v. Haviland, 531 F.3d 393, 403 (6th Cir. 2008). “Courts
will balance any such assertion [of the right of self-representation] against
considerations of judicial delay.” United States v. Martin, 25 F.3d at 295–96
(footnote omitted). Although “Faretta did not establish a bright-line rule for
timeliness,” it “necessarily incorporate[d] a loose timing element.” Hill v. Curtin,
792 F.3d 670, 678 (6th Cir. 2015). The Sixth Circuit noted that “to the extent that
Faretta addresses timeliness, as a matter of clearly established law it can only be
read to require a court to grant a self-representation request when the request occurs
weeks before trial.” Id.
Petitioner is not entitled to habeas relief on his self-representation claim for
several reasons.
The First Pretrial Conference. Petitioner’s statement at the pre-trial hearing
on August 8, 2018, “so I can stand on my own now?” was not a sufficient invocation
of the right to self-representation. Rather, petitioner made a “single, off-the-cuff
remark” at his pretrial conference, which was not clear and unequivocal for purposes
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of the Sixth Amendment right to self-representation. United States v. Manthey, 92
F. App’x 291, 295 (6th Cir. 2004).
The Second Pretrial Conference. Petitioner claims he again invoked his right
to self-representation at the pre-trial conference on August 24, 2018, when he
informed the judge, during a discussion about possible plea offers, that counsel “does
not speak for me. He doesn’t represent me, he doesn’t speak [o]n my behalf or for
me.” ECF Nos. 1 at PageID.35; 12-9 at PageID.580. Petitioner then went on to
complain about counsel, indicating that that the attorney-client relationship had
fallen apart. ECF No. 12-9 at PageID.580–82. This too does not constitute a clear
and unequivocal invocation of the right to self-representation because in the context
that it was made, Petitioner “was motivated less by a desire to engage in selfrepresentation and more by extreme dissatisfaction with” counsel. United States v.
Jackson, 304 F. App’x 424, 428 (6th Cir. 2008).
Moreover, any request by Petitioner to represent himself only three days
before trial would be untimely. Hill, 792 F.3d at 678.
The First Day of Trial. Finally, any request by Petitioner to represent himself
on the morning of trial was properly rejected as untimely. “A trial judge may fairly
infer on the day of trial—as the jurors are on their way to the courtroom—that a
defendant’s last-minute decision to represent himself would cause delay, whether or
not the defendant requests a continuance.” Hill, 792 F.3d at 681; see also Robards
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v. Rees, 789 F.2d 379, 383–84 (6th Cir. 1986) (holding that state trial court properly
denied motion for self-representation because it was made the first day of trial and
after the clerk had called roll of jurors, and so it “would have impermissibly delayed
the commencement of the trial”).
The trial judge, both at trial and on postconviction review, reasonably
concluded that Petitioner waived his right to self-representation both through his
disruptive conduct, including leaving the courtroom, at the second pretrial
conference, and his initial refusal to enter the courtroom on the first day of trial.
Although a criminal defendant has a right to conduct his own defense, he must
be “able and willing to abide by rules of procedure and courtroom protocol.”
McKaskle v. Wiggins, 465 U.S. 168, 173 (1984). Indeed, a “trial judge may terminate
self-representation by a defendant who deliberately engages in serious and
obstructionist misconduct.” Faretta, 422 U.S. at 834 n.46 (citing Illinois v. Allen,
397 U.S. 337 (1970)). Further, “[t]he right of self-representation is not a license to
abuse the dignity of the courtroom. Neither is it a license not to comply with relevant
rules of procedural and substantive law.” Id.
At the second pre-trial conference on August 24, 2018, the trial judge put on
the record that he had been made aware that Petitioner “is going to make a scene, or
may make a scene if this goes to trial.” ECF No. 12-9, PageID.579. The judge
warned Petitioner that if he engaged in disruptive behavior, he would be removed
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from the courtroom and have to watch the trial remotely from another room. Id. at
PageID.579. The judge warned Petitioner not to “make a scene” or “there will be
consequences.” Id. at PageID.580. During the pretrial conference, Petitioner
continued using profanity and repeatedly interrupted the judge before leaving the
courtroom. Id. at PageID.581–83. After Petitioner left the courtroom, the judge
placed on the record that Petitioner had been disrespectful and had sworn at the court
before leaving. Id. at PageID.583–84. The judge concluded that Petitioner’s actions
confirmed that he intended to make a scene at his upcoming trial. Id.
On the first day of trial, Petitioner initially refused to come into the courtroom.
ECF No. 12-10 at PageID.590. A courtroom deputy informed the judge that
Petitioner indicated that as long as he was represented by his current lawyer, he
refused to leave the lock-up and come into the courtroom, nor would he agree to
watch the trial remotely from another room. Id. at PageID.590–91. Although trial
counsel informed the judge that Petitioner said he wished to represent himself, id. at
PageID.591, the courtroom deputy indicated that when he asked Petitioner if he
wanted to represent himself, Petitioner only replied that he did not want to be
represented by his current attorney. Id. at PageID.600. The judge specifically ruled

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that Petitioner waived his right to self-representation by being disruptive. Id. at
PageID.595–96.1
Because Petitioner disrupted the proceedings and engaged in erratic behavior,
the trial court did not abuse its discretion in denying Petitioner’s request for selfrepresentation. See Lewis v. Robinson, 67 F. App’x 914, 919 (6th Cir. 2003).
Moreover, contrary to Petitioner’s argument, the judge had no duty to warn
Petitioner that disruptive behavior would result in his right being forfeited. See
Ainsworth v. Virga, No. CV 10-6602, 2012 WL 7984098, at *9 (C.D. Cal. Aug. 13,
2012) (noting that court had no obligation to warn petitioner not to misbehave before
denying his Faretta motion), report and recommendation adopted, No. CV 10-6602,
2013 WL 1707918 (C.D. Cal. Apr. 19, 2013).
Finally, the judge reasonably concluded that by removing himself from the
second pretrial conference and by initially refusing to come to court for the
beginning of trial, Petitioner forfeited his right to self-representation. There is no
clearly established federal law holding otherwise. See Kammeraad v. Campbell, No.
1:16-cv-00349, 2017 WL 5036751, at *9–11 (W.D. Mich. Aug. 29, 2017), report
and recommendation adopted by 2017 WL 4962769, at *1 (W.D. Mich. Nov. 1,
2017) (holding that determination that defendant forfeited his right to self-

1

Petitioner eventually did agree to come into the courtroom and participated in the
trial. ECF No. 12-10, PageID.700–01. Moreover, Petitioner testified in his own
defense. ECF 12-13, PageID.1212–80.
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representation due to “severity of his misconduct and his absolute refusal to
participate in any manner in the proceedings” was not contrary to or an unreasonable
application of clearly established federal law).
Accordingly, Petitioner is not entitled to habeas relief on his first claim.
D. Claim 2: Ineffective Assistance of Trial Counsel
Petitioner next claims he was denied the effective assistance of counsel
because his trial attorney failed to effectively impeach the victim with her
preliminary examination testimony. ECF No. 1 at PageID.42.
For ineffective assistance of counsel, Petitioner must show that the state
court’s conclusion regarding these claims was contrary to, or an unreasonable
application of, Strickland v. Washington, 466 U.S. 668 (1984). See Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). Strickland established a two-pronged test for
claims of ineffective assistance of counsel: the petitioner must show (1) that
counsel’s performance was deficient, and (2) that the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687.
The trial judge denied Petitioner’s claim on postconviction review as follows:
The defendant alleges that his trial counsel should have impeached the
victim with the differences between her trial testimony and her
preliminary examination testimony regarding in what room she was
raped twice. The defendant alleges the victim lied when she testified
that the defendant raped her twice in the bedroom at the preliminary
exam but then testified at trial that he raped her twice in the bathroom.
The defendant testified that he had sex with the victim in the bedroom,
bathroom and the kitchen. The fact that the victim’s memory of the
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events was not perfectly clear is not evidence of falsehood. As noted
previously, the victim stated she was trying to forget what had
happened to her. The trial counsel effectively cross examined the victim
to highlight the differences in her testimony before the jury. The
defendant has not shown that his attorney was performing below an
objective standard of reasonableness or that there is a reasonable
probability that, but for counsel’s alleged errors, the result of the
proceedings would have been different. There is no merit to this claim.
ECF No. 12-16 at PageID.1418.
Impeachment strategy falls within the category of an attorney’s tactical
decisions, which are difficult to attack. Tackett v. Trierweiler, 956 F.3d 358, 374
(6th Cir. 2020) (citing O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994) and
Dell v. Straub, 194 F. Supp. 2d 629, 651 (E.D. Mich. 2002)). Here, defense counsel’s
performance did not constitute ineffective assistance of counsel because the record
shows that he carefully cross-examined the victim and in his closing argument
emphasized the weaknesses in her testimony. See Krist v. Foltz, 804 F.2d 944, 948–
49 (6th Cir. 1986); Millender v. Adams, 187 F. Supp. 2d 852, 872 (E.D. Mich. 2002).
During cross-examination, counsel challenged the victim’s memory of the
events. He confronted the victim about her ability to recall the time between the three
attacks and where they occurred in Petitioner’s home. ECF No. 12-11 at
PageID.898–907. Counsel also confronted the victim with her prior preliminary
examination. ECF No. 12-11 at PageID.902–904. Defense counsel further elicited
testimony from the victim that her trial testimony contradicted her statement to
police as well as her testimony at the preliminary examination. Id. at PageID.913–
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21. In closing, defense counsel highlighted inconsistencies in her testimony and prior
statements. ECF No. 12-13 at PageID.1325–1331.
Although counsel “could have further probed the inconsistencies highlighted
by” Petitioner, “his failure to do so in light of the otherwise extensive crossexamination does not undermine the presumption that his ‘conduct falls within the
wide range of reasonable professional assistance.’” Moss v. Olson, 699 F. App’x
477, 487 (6th Cir. 2017) (quoting Strickland, 466 U.S. at 689). Finally, Petitioner
has failed to identify how additional impeachment of the victim would have affected
the jury’s decision. Defense counsel did not perform ineffectively just because he
did not more forcefully cross-examine the victim, particularly when the effect of
further probing is entirely speculative on Petitioner’s part. See Jackson v. Bradshaw,
681 F.3d 753, 764–65 (6th Cir. 2012); Moss v. Hofbauer, 286 F.3d 851, 864 (6th
Cir. 2002) (“Although other attorneys might have reached a different conclusion
about the value of cross-examining [the victim] in greater detail, counsel’s strategic
choice not to further cross-examine the victim was ‘within the wide range of
reasonable professional assistance.’” (quoting Strickland, 466 U.S. at 689)).
Petitioner therefore is not entitled to relief on his second claim.
E. Claim 3: Ineffective Assistance of Appellate Counsel
Petitioner next contends that he was denied the effective assistance of
appellate counsel because his second appellate counsel failed to timely file
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Petitioner’s pro se supplemental Standard 4 brief with the Michigan Court of
Appeals.2 ECF No. 1 at PageID.56. It is this claim for which he filed his Motion to
Expand the Record. ECF No. 8; see Discussion supra Part III.B.
However, this claim also fails because represented criminal defendants do not
have a right to file pro se appellate briefs. Under the Sixth Amendment, a criminal
defendant has no right to self-representation on direct appeal from a criminal
conviction. Martinez v. Court of Appeal of California, Fourth App. Dist., 528 U.S.
152, 163 (2000). The Supreme Court also rejected the idea that the right to selfrepresentation on appeal could be grounded in the Due Process Clause of the
Fourteenth Amendment, because “[u]nder the practices that prevail in the Nation
today . . . we are entirely unpersuaded that the risk of either disloyalty or suspicion
of disloyalty is a sufficient concern to conclude that a constitutional right of selfrepresentation is a necessary component of a fair appellate proceeding.” Id. at 161.
Thus, there is no constitutional entitlement to submit a pro se appellate brief
on direct appeal from a criminal conviction in addition to a brief submitted by
appellate counsel. See McMeans v. Brigano, 228 F.3d 674, 684 (6th Cir. 2000). By
accepting the assistance of counsel, the criminal appellant waives his right to present

2

Standard 4 of Administrative Order 2004-6, 471 Mich. cii (2004), “explicitly
provides that a pro se brief may be filed within 84 days of the filing of the brief by
the appellant’s counsel, and may be filed with accompanying motions.” Ware v.
Harry, 636 F. Supp. 2d 574, 594 n. 6 (E.D. Mich. 2008).
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pro se briefs on direct appeal. Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996);
see also Henderson v. Collins, 101 F. Supp. 2d 866, 881 (S.D. Ohio 1999) (defendant
who was represented by counsel and also sought to submit pro se brief upon appeal
did not have right to such hybrid representation), aff’d in part, vacated in part on
other grounds, 262 F.3d 615 (6th Cir. 2001). Any failure by appellate counsel to
timely submit a pro se brief on behalf of Petitioner does not present a constitutional
question that entitling him to relief. McMeans, 228 F.3d at 684. Accordingly, his
third claim fails.
F. Claim 4: Prior Bad-Acts Evidence
Petitioner next contends that he was denied a fair trial by the admission of
prejudicial evidence concerning his prior conduct for statutory rape, pimping, child
sex trafficking, and drug dealing. ECF No. 1 at PageID.63. Petitioner argues that this
evidence was admitted in violation of Michigan Evidence Rule 404(b) because it
was admitted solely to establish that Petitioner was a bad man with a propensity to
commit crimes.
It is “not the province of a federal habeas court to reexamine state-court
determinations on state-court law questions.” Estelle v. McGuire, 502 U.S. 62, 6768 (1991). A federal court is limited in federal habeas review to deciding whether a
state court conviction violates the Constitution, laws, or treaties of the United States.
Id. Thus, errors in the application of state law, especially rulings regarding the
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admissibility of evidence, are usually not questioned by a federal habeas court.
Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Cooper v. Sowders,
837 F.2d 284, 286 (6th Cir. 1988)).
Accordingly, Petitioner’s claim that the state court Rule 404(b) or any other
provision of state law by admitting improper character evidence or evidence of prior
bad acts is non-cognizable on habeas review. See Bey v. Bagley, 500 F.3d 514, 519
(6th Cir. 2007); Estelle, 502 U.S. at 72 (recognizing that reversal of state-court
conviction would be impermissible when based on belief that state trial judge erred
in ruling as to bad-acts evidence). The admission of this “prior bad acts” or “other
acts” evidence against Petitioner at his state trial does not entitle him to habeas relief,
because there is no clearly established Supreme Court precedent which holds that a
state violates a habeas petitioner’s due process rights by admitting propensity
evidence in the form of “prior bad acts” evidence. See Bugh v. Mitchell, 329 F.3d
496, 512 (6th Cir. 2003). Petitioner is not entitled to relief on his fourth claim.
G. Claim 5: Prosecutorial Misconduct
Last, Petitioner contends he was denied a fair trial because of prosecutorial
misconduct. ECF No. 1 at PageID.82.
“Claims of prosecutorial misconduct are reviewed deferentially on habeas
review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004) (citing Bowling v.
Parker, 344 F.3d 487, 512 (6th Cir. 2003)). A prosecutor’s improper comments
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violate a defendant’s constitutional rights only if they “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)). Prosecutorial misconduct will thus form the basis for habeas relief
only if the conduct was so egregious as to render the entire trial fundamentally unfair
based on the totality of the circumstances. Donnelly, 416 U.S. at 643–45. To obtain
habeas relief on a prosecutorial misconduct claim, a habeas petitioner must show
that the state court’s rejection of his prosecutorial misconduct claim “was so lacking
in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Parker v. Matthews, 567
U.S. 37, 47 (2012) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Petitioner first alleges that the prosecutor permitted the victim to commit
perjury. ECF No. 1 at PageID.25, 82, 84.
Presenting known and false evidence is incompatible with the rudimentary
demands of justice. Giglio v. United States, 405 U.S. 150, 153 (1972) (quoting
Mooney v. Holohan, 294 U.S. 103, 112 (1935)). Further, there is a due-process
violation when prosecutors allow false evidence or testimony to go uncorrected.
Napue v. Illinois, 360 U.S. 264, 269 (1959).
To prevail on a claim that his conviction was obtained by evidence that the
government knew or should have known to be false, Petitioner must show that (1)
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the statements were actually false, (2) the statements were material, and (3) the
prosecutor knew they were false. Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998)
(quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989)). However,
a habeas petitioner must show that a witness’s statement was “indisputably false,”
rather than misleading, to establish a claim of prosecutorial misconduct or denial of
due process based on the knowing use of false or perjured testimony. Byrd v. Collins,
209 F.3d 486, 517–18 (6th Cir. 2000).
Petitioner claims that the victim perjured herself because she changed her
story between her initial statement to the police, her preliminary examination
testimony, and her testimony at trial concerning the number of times she was
sexually assaulted in the bathroom and the number of times she was sexually
assaulted in the bedroom. ECF No. 1 at PageID.84–88.
However, mere inconsistencies in a witness’s testimony do not establish the
knowing use of false testimony by the prosecutor. Coe, 161 F.3d at 343 (quoting
Lochmondy, 890 F.2d at 822). The fact that a witness contradicts himself or changes
his story does not establish perjury either. Malcum v. Burt, 276 F. Supp. 2d 664, 684
(E.D. Mich. 2003) (citing Monroe v. Smith, 197 F. Supp. 2d 753, 762 (E.D. Mich.
2001)). Conclusory allegations of perjury in a habeas corpus petition must be
corroborated by some factual evidence. See Barnett v. United States, 439 F.2d 801,

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802 (6th Cir. 1971). Petitioner has presented no evidence to establish that the victim
deliberately lied. Therefore, he is not entitled to relief on this claim.
Petitioner next contends that the prosecutor misrepresented the evidence by
stating in her closing argument that petitioner admitted during his testimony to
possessing a firearm when he had not, in fact, made such an admission. ECF No. 1
at PageID.91.
When a prosecutor misrepresents facts in evidence, that may be substantial
error because doing so “may profoundly impress a jury and may have a significant
impact on the jury’s deliberations.” Washington v. Hofbauer, 228 F.3d 689, 700 (6th
Cir. 2000) (quoting Donnelly, 416 U.S. at 646). Likewise, it is improper for a
prosecutor during closing arguments to bring to the jury any purported facts which
have not been introduced into evidence and which are prejudicial. Byrd v. Collins,
209 F.3d at 535 (quoting United States v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995)).
However, prosecutors must be given leeway to argue reasonable inferences from the
evidence. Id. (quoting United States v. Collins, 78 F.3d 1021, 1040 (6th Cir. 1996).
The trial judge, in rejecting this claim on postconviction review, concluded
that the prosecutor may have misspoken when she stated that Petitioner admitted at
trial to holding a gun, but found it nonprejudicial because the victim at trial testified
that Petitioner took a gun out of his dresser drawer and sat with it on his lap. People
v. Davis, No. 18-003417-FC, at 7–8 (ECF No. 12-16 at PageID.1415–16). The judge
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also noted that although Petitioner stated that the victim brought the gun to his house,
he admitted at trial that he told the victim she wasn’t getting her gun back because
he believed she stole some money from Petitioner. Id. The judge observed that
Petitioner’s own testimony showed that he intended to keep the gun and thus
supported his firearms convictions under a constructive possession theory. Id.
Under Michigan law, possession of a firearm may be either actual or
constructive. See Parker v. Renico, 506 F.3d 444, 448 (6th Cir. 2007) (citing People
v. Hill, 446 N.W.2d 140, 143 (Mich. 1989)). The Sixth Circuit indicated that
“[c]onstructive possession exists when a person does not have actual possession but
instead knowingly has the power and the intention at a given time to exercise
dominion and control over an object, either directly or through others.” Id. at 449
(quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973) (alteration in
original), abrogated on other grounds by Scarborough v. United States, 431 U.S.
563 (1977)).
Although Petitioner did not testify to holding the gun, he did testify that he
told the victim that he intended to keep her gun, which supported his firearms
convictions under a constructive-possession theory. ECF No. 12-13 at PageID.1224.
Because there was at least some factual support on the record for the prosecutor’s
statement, the prosecutor’s remarks did not deprive Petitioner of a fair trial. See
United States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008).
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Petitioner next contends that the prosecutor committed misconduct by
introducing MG’s testimony concerning Petitioner’s prior statutory rape conviction
and his prior activities of child sex trafficking and drug dealing. ECF No. 1 at
PageID.97.
Although Federal Evidence Rule 404(b) and its state counterpart generally
prohibit prosecutors from questioning defendants about prior bad acts, the Supreme
Court has never held that the federal constitution forbids prosecutors from doing so.
Thus, the rejection of Petitioner’s prosecutorial misconduct claim by the Michigan
courts would not entitle Petitioner to habeas relief. See Wagner v. Klee, 620 F. App’x
375, 378 (6th Cir. 2015).
Petitioner lastly claims that the prosecutor improperly vouched for the victim
in her closing argument with the following remarks: “You could think [the victim],
maybe she did agree to sex with him, but I think she said no, and I think he had sex
with her anyways. You can believe that.” See ECF No. 1 at PageID.19; ECF No. 13
at PageID.2105; ECF No. 12-13 at PageID.1338.
A prosecutor may not express a personal opinion concerning the guilt of a
defendant or the credibility of trial witnesses, because such personal assurances of
guilt or vouching for the veracity of witnesses by the prosecutor “exceeds the
legitimate advocate’s role by improperly inviting the jurors to convict the defendant
on a basis other than a neutral independent assessment of the record proof.” Caldwell
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v. Russell, 181 F.3d 731, 737 (6th Cir. 1999) (citations omitted), abrogated on other
grounds by Mackey v. Dutton, 217 F.3d 399 (6th Cir. 2000). However, a prosecutor
is free to argue that the jury should arrive at a particular conclusion based upon the
record evidence. Id. The test for improper vouching for a witness is whether the jury
could reasonably believe that the prosecutor was indicating a personal belief in the
witness’s credibility. United States v. Causey, 834 F.2d 1277, 1283 (6th Cir. 1987)
(quoting United States v. Dennis, 786 F.2d 1029, 1046 (11th Cir. 1986)). “Generally,
improper vouching involves either blunt comments, or comments that imply that the
prosecutor has special knowledge of facts not in front of the jury or of the credibility
and truthfulness of witnesses and their testimony.” See United States v. Francis, 170
F.3d 546, 550 (6th Cir. 1999) (internal citations omitted).
Nonetheless, “[p]rosecutorial vouching rarely warrants a new trial.” Smith v.
Jones, 326 F. App’x 324, 328 (6th Cir. 2009). Indeed, “the Supreme Court has never
specifically held that a prosecutor’s vouching for the credibility of a witness resulted
in a denial of due process.” Wilson v. Bell, 368 F. App’x 627, 632 n.3 (6th Cir. 2010).
Even on direct appeal from a federal conviction, the Sixth Circuit has held that to
constitute reversible error, a prosecutor’s alleged misconduct of arguing his personal
belief in a witness’s credibility or in a defendant’s guilt must be flagrant and not
isolated. See United States v. Humphrey, 287 F.3d 422, 433–34 (6th Cir. 2002),

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overruled on other grounds by United States v. Leachman, 309 F.3d 377 (6th Cir.
2002).
The prosecutor did not argue that she had any special knowledge about the
victim or the facts of the case that had not been presented to the jury. Although a
prosecutor’s repeated prefacing of her arguments with “I think” is not preferable,
they do not rise to the level of prosecutorial misconduct because the comments were
based on the evidence presented at trial and were isolated. See Wogenstahl v.
Mitchell, 668 F.3d 307, 332 (6th Cir. 2012). Moreover, any alleged vouching for the
credibility of the victim did not rise to the level of a due-process violation,
considering that judge instructed the jury both that the prosecutor’s arguments were
not evidence and of the factors to consider in evaluating the credibility of the
witnesses’ testimony. ECF No. 12-13 at PageID.1344-47. Byrd v. Collins, 209 F.3d
486, 537-38 (6th Cir. 2000). Petitioner therefore is not entitled to relief on his final
claim.
H. CERTIFICATE OF APPEALABILITY
The Court will also deny a certificate of appealability to Petitioner. To obtain
a certificate of appealability, a prisoner must make a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial,
the applicant is required to show that reasonable jurists could debate whether, or
agree that, the petition should have been resolved in a different manner, or that the
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issues presented were adequate to deserve encouragement to proceed further. Slack
v. McDaniel, 529 U.S. 473, 483–84 (2000). When a district court rejects a habeas
petitioner’s constitutional claims on the merits, the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims to be debatable or wrong. Id. at 484. “The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.”
Rules Governing § 2254 Cases, Rule 11(a).
The Court will deny Petitioner a certificate of appealability because he failed
to make a substantial showing of the denial of a federal constitutional right. See also
Millender v. Adams, 187 F. Supp. 2d at 880. The Court further concludes that
Petitioner should not be granted leave to proceed in forma pauperis on appeal, as
any appeal would be frivolous. See FED. R. APP. P. 24(a).

*

*

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*

IV. CONCLUSION
Accordingly, it is ORDERED that:
The Petition for Writ of Habeas Corpus, ECF No. 1, is DENIED;
The Motions to Appoint Counsel, ECF No. 7, to Expand Record, ECF No. 8,
and for Evidentiary Hearing, ECF No. 9, are DENIED;
Petitioner is further DENIED a certificate of appealability and DENIED
permission to appeal in forma pauperis.
s/Susan K. DeClercq
SUSAN K. DeCLERCQ
United States District Judge
Dated: 8/28/2024

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