Davis Jr. v. Rivard
OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus and Denying Certificate of Appealability. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Johnny Lerue Davis, Jr.,
Case No. 16-cv-10107
Judith E. Levy
United States District Judge
Mag. Judge Elizabeth A. Stafford
OPINION AND ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS AND DENYING
CERTIFICATE OF APPEALABILITY
Michigan prisoner Johnny Lerue Davis, Jr. (“Petitioner”) filed this
habeas corpus petition under 28 U.S.C. § 2254.
convicted of second-degree murder, Mich. Comp. Laws § 750.317, two
counts of assault with intent to murder, Mich. Comp. Laws § 750.83,
discharging a firearm in or at a building, Mich. Comp. Laws § 750.234b,
and possession of a firearm during the commission of a felony (felonyfirearm), Mich. Comp. Laws § 750.227b, following a jury trial with codefendant Andrew Lee Ursery. Petitioner was sentenced to 30 to 50
years imprisonment for second-degree murder, 15 to 30 years
imprisonment for each of the assault with intent to murder convictions,
two to four years imprisonment for discharging a firearm in or at a
building and two years imprisonment for felony-firearm. The petition
raises two claims: (1) the trial court improperly admitted autopsy
photographs and photographs of a memorial to the victim; and (2)
insufficient evidence supported the convictions.
For the reasons that follow, the Court denies the petition for a
writ of habeas corpus.
The Court also denies a certificate of
Petitioner’s convictions arise from a shooting outside a club in
Ecorse, Michigan on October 7, 2012.
The shooting resulted in the
death of one woman and injuries to two men. The Michigan Court of
Appeals summarized the evidence adduced at trial leading to
Petitioner’s convictions as follows:
This appeal arises from the death of Chanel
Weddington and gunshot wounds Damond Williams and
Billy Parker sustained outside of an after-hours club known
as “The Place,” in the city of Ecorse, during the early
morning hours of October 7, 2012. Diamond Pitts brought
defendants, Patrice Jackson (“Patrice”), and a man identified
at trial only as “Davonte” to The Place, and parked on the
grass in a field across the street from the club. Defendants
went to the club because they had a “beef” with people there.
According to the testimony at trial, defendants had earlier
stated that they had guns, and Ursery had shown a silver
gun to the group. Regardless, a security guard and the club
owner’s husband (Patrick Wheeler) both testified that
everyone is patted down when they enter and turned away if
weapons are found.
Later, the security guard and Wheeler observed an
altercation on the dance floor involving both women and
men, including defendants. The security guard testified that
defendants were escorted outside for five minutes, and then
allowed to reenter. Wheeler also testified that, when the
same men got into another argument, he closed the club and
escorted patrons outside. At that time, the security guard
heard people saying that the men involved in the fight were
about to start shooting. Shaquetta King saw her cousin,
Parker, throw a punch at Davonte, and she also saw Joseph
Elias standing in the street with his shirt off and a gun in
The security guard testified that he saw
defendants walk across the street toward the field. King
testified that Davonte also walked there.
As two patrons, Raphael Reed and Vick Bullard, were
leaving and walking to their car parked on a street slightly
south of the field, Reed saw Davis and Ursery standing near
a white car in the field. Reed testified that, as he started to
put his key in his car door, he dropped it, bent over to pick it
up, and, at the same time, heard gunshots. Reed recalled
that he took cover by a truck, but looked toward the field ten
feet away. Reed testified that he saw Davis and Ursery, who
he had known before, along with another man, shooting
toward the front door of the club. Reed testified that he also
saw Ursery fire toward a man running down Francis Street.
Williams testified that he was talking to Weddington
outside on the sidewalk in front of the club when he was shot
in the stomach. Williams did not see who shot him, but
stated that the gunshots came from the field across the
street from the club and he saw the flashes from the muzzles
of two guns. Williams testified that he watched Weddington
suffer the fatal shot to her chest while she was standing
right next to him with her back toward the field.
Parker testified that patrons were exiting the club
when he arrived at the scene and that he had walked to the
middle of 12th Street when the shooting began. Although he
ducked behind a car, he was shot in the stomach and hip.
Parker testified that he saw more than one shooter, but
could not identify them.
Roy Miller, a River Rouge police officer, estimated that
40 gunshots were fired. Dean Molner, a Detective Sergeant
with the Michigan State Police Department and a firearms
and tool marks expert, identified four different groups of
casings found, and concluded that there was a possible
maximum of four guns used to fire the bullets, but it was
also possible that less than four weapons were used. Bullet
fragments were recovered in front of The Place and in a car
parked in front of the club, and bullet holes were observed in
three vacant homes down the street.
People v. Davis, Jr., No. 316645, 2014 WL 4495219, *1-2 (Mich. Ct. App.
Sept. 11, 2014).
Petitioner’s convictions were affirmed on appeal.
Michigan Supreme Court denied leave to appeal. People v. Davis, 497
Mich. 984 (2015).
Petitioner now seeks a writ of habeas corpus on these grounds:
The trial court violated the defendant’s due process
rights to a fair trial and abused its discretion by its
consistent rulings as it regarded the admission of
photographs into evidence, which collectively were so
unfairly gruesome and damaging that the admission was
more prejudicial than probative.
II. The evidence presented by the prosecutor was
insufficient to establish beyond a reasonable doubt that the
defendant was guilty of the crimes for which he was charged
(Dkt. 1 at 3).
II. Legal Standard
Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,
110 Stat. 1214, imposes the following standard of review for habeas
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 decision of a state court is “contrary to” clearly established
federal law if the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law, or if the state court
decides a case differently than the Supreme Court has on a set of
materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362,
405-406 (2000). An “unreasonable application” occurs when “a statecourt 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.
The Supreme Court has explained that a “federal court’s collateral
review of a state-court decision must be consistent with the respect due
state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322,
340 (2003). Thus, the AEDPA “imposes a highly deferential standard
for evaluating state-court rulings, and demands that state-court
decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S.
766, 773 (2010). A “state court’s determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court’s decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011). The Supreme Court has emphasized
“that even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. at 102.
Furthermore, pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or ... could have
supported, the state court's decision; and then it must ask whether it is
possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision” of the
Habeas relief is not appropriate unless each
ground that supported the state-court's decision is examined and found
to be unreasonable under the AEDPA. See Wetzel v. Lambert, 565 U.S.
520, 525 (2012).
“If this standard is difficult to meet, that is because it was meant
to be.” Harrington, 562 U.S. at 102. Although § 2254(d), as amended
by the AEDPA, does not completely bar federal courts from re-litigating
claims that have previously been rejected in the state courts, it
preserves the authority for a federal court to grant habeas relief only “in
cases where there is no possibility fairminded jurists could disagree
that the state court’s decision conflicts with” the Supreme Court’s
precedents. Id. Indeed, § 2254(d) “reflects the view that habeas corpus
is a guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through appeal.”
Thus, a “readiness to attribute error [to a state court] is
inconsistent with the presumption that state courts know and follow the
law.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002). Therefore, in order
to obtain habeas relief in federal court, a state prisoner is required to
show that the state-court’s rejection of his claim “was so lacking in
justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103.
A state court’s factual determinations are presumed correct on
federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner
may rebut this presumption of correctness only with clear and
convincing evidence. Id.; Warren v. Smith, 161 F.3d 358, 360-361 (6th
Cir. 1998). Moreover, habeas review is “limited to the record that was
before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Admission of Photographs
Petitioner contends that the trial court violated his due process
right to a fair trial when it admitted autopsy photographs of the victim
and photographs depicting a poster and other items memorializing the
victim which had been placed outside the club where the shooting
He argues that the admission of these photographs was
First, Petitioner challenges the admission of photographs of the
scene of the shooting that also depicted a memorial to the victim
including a memorial poster, balloons, flowers, and a memorial candle.
The trial court excluded three photographs and admitted five. (Dkt. 510 at 98).
The trial court found admissible one close-up photo of a
memorial poster and four photographs of the outside of the building
from several angles, which also depicted other memorial items such as
balloons and flowers. (Id.) The trial court admitted the memorial poster
photograph to allow police to testify that the poster, which contained
handwritten notes from mourners, was used as an investigative tool to
obtain names of possible suspects and witnesses. (Id. at 97-98). With
respect to the other admitted photographs, the trial court held that they
were not unfairly prejudicial. (Id.). On direct review, the Michigan
Court of Appeals found no error in the trial court’s admission of
photographs of the building which also depicted items memorializing
the victim. Davis, Jr., 2014 WL 4495219 at *5.
The state court
reasoned that the photographs were relevant to important issues at
trial: the lighting outside the building, the location of the fence and
sidewalk in relation to the field across the street, and the relative
vantage points of the witnesses.
Thus, the Michigan Court of
Appeals concluded the photographs were admitted for a proper purpose:
“to prove where the victims and shooters were located and the lighting
conditions at the time of the shooting.” Id.
The Michigan Court of Appeals held that the single photograph
depicting a memorial poster commemorating and mourning the victim
should have been excluded. The court explained in relevant part:
Over defendants’ objections, the trial court allowed the
admission of a photograph of a poster tied to the fence in
front of the club that depicted signatures and messages from
acquaintances of Weddington. At trial, the police officer who
took the photograph testified that this specific picture was
taken to identify any possible people that may need to be
interviewed for the purpose of identifying the shooters.
Although the poster was relevant to show the investigative
tools the police may have used to find witnesses, and the
prosecution emphasized that the police had a difficult time
getting witnesses to cooperate, relying on Crime Stoppers
and anonymous tips to track down defendants, any probative
value of this photograph was minimal compared to the
prejudicial effect of showing a poster that depicts messages
from friends and family of the murder victim.
admission of this photograph was not substantially
necessary or instructive to show material facts or conditions,
such as the lighting conditions or the location where
witnesses or perpetrators were situated at the time of the
incident. Therefore, the trial court erred in allowing the
admission of the close-up photograph of the poster
The Michigan Court of Appeals nevertheless held that admission
of this photograph was harmless error given the overwhelming evidence
that Petitioner was one of the shooters. Id.
“In 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). “[I]t is not
the province of a federal habeas court to reexamine state-court
determinations on state-law questions.”
Id. at 67-68.
As a result,
“errors in application of state law, especially with regard to the
admissibility of evidence, are usually not cognizable in federal habeas
Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007) (citation
To form a basis for habeas corpus relief, a challenged
evidentiary ruling must be so “fundamentally unfair” as to violate due
process. Id. at 519-20. The Supreme Court has defined “the category of
infractions that violate ‘fundamental fairness’ very narrowly.” Dowling
v. United States, 493 U.S. 342, 352 (1990).
Infractions that violate
fundamental fairness are restricted to offenses against “‘some principle
of justice so rooted in the traditions and conscience of our people as to
be ranked as fundamental.’” Bey, 500 F.3d at 521 (quoting Montana v.
Egelhoff, 518 U.S. 37, 43 (1996)).
The state court’s decision is neither contrary to Supreme Court
precedent nor an unreasonable application of federal law or the facts.
First, to the extent that Petitioner asserts a violation of the Michigan
Rules of Evidence or other state law, he fails to state a claim upon
which relief may be granted.
See Estelle, 502 U.S. at 68.
Petitioner fails to establish that the admission of the disputed
photographs violated his due process rights and denied him a fair trial.
With respect to the photographs that were properly admitted under
state law, admission of these photographs did not affect the
fundamental fairness of the trial or deny Petitioner due process. They
were relevant to the scene of the murder and the relative positions of
Second, while the Michigan Court of Appeals held that the
memorial poster photograph was improperly admitted under state law,
any error was harmless. On habeas review, an error is harmless unless
it had a “‘substantial and injurious effect or influence in determining
the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also
Fry v. Pliler, 551 U.S. 112, 117-18 (2007) (confirming that the Brecht
standard applies in “virtually all” habeas cases).
The photograph of the memorial poster (and other items) may
have elicited some sympathy for the victim, but none of these items
pointed a finger of suspicion at Petitioner. The prosecutor did not use
these items to argue that Petitioner should be convicted based upon the
jury’s sympathy for the victim.
Substantial evidence supported
One witness, Raphael Reed, identified
Petitioner and his co-defendant as the shooters.
testified that Petitioner and his co-defendant argued with other patrons
and were escorted from the bar by security. In light of the evidence
against Petitioner, the Michigan Court of Appeals’ decision that
Petitioner was not harmed by the error was reasonable.
Petitioner fails to establish that the admission of the photographs
violated due process or otherwise rendered his trial fundamentally
unfair. Habeas relief is not warranted on this claim.
Petitioner also claims that the trial court erred in admitting
autopsy photographs of the victim. Petitioner argues that the medical
examiner Dr. Allecia Wilson’s testimony and the body diagram used
during her testimony, taken together, were sufficient to explain and
demonstrate to the jury the location and nature of the victim’s injuries.
The autopsy photographs, Petitioner argues, were unnecessary and
The Michigan Court of Appeals held that the
admission of these photographs was proper under Michigan Rules of
Evidence because the photographs were relevant and not unfairly
prejudicial. People v. Davis, 2014 WL 4495219 at *6.
The Sixth Circuit has held that the introduction of graphic
photographs of a victim in a murder case does not offend the
Constitution when there is some legitimate evidentiary purpose for the
photographs’ admission. See, e.g., Biros v. Bagley, 422 F.3d 379, 391
(6th Cir. 2005) (upholding the admission of photographs depicting a
victim’s severed head, severed breast, and severed body parts placed
near the victim’s torso); Frazier v. Huffman, 343 F.3d 780, 789 (6th Cir.
2003) (finding acceptable the admission of multiple photographs of the
victim used to illustrate the nature of the encounter preceding the
victim’s death); Cooey v. Coyle, 289 F.3d 882, 893 (6th Cir. 2002)
(observing that “although the photographs were gruesome, they were
Here, the photographs were relevant to illustrate the medical
examiner’s testimony regarding her autopsy of the victim. The medical
examiner used the photographs to illustrate the nature of Petitioner’s
injuries and the path of the bullets.
The photographs were less
inflammatory than those in Biros, and related to the circumstances
surrounding the shooting. Biros, 422 F.3d at 391. Petitioner has not
established a due process violation arising from admission of the
Sufficiency of the Evidence
Petitioner argues that there was insufficient evidence to support
any of his convictions.
He bases his argument on the credibility of
prosecution witness Raphael Reed, the only eyewitness to identify
Petitioner as one of the shooters. He argues that Reed’s testimony was
“[T]he Due Process Clause protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In re Winship, 397 U.S.
358, 364 (1970).
On direct review, review of a sufficiency of the
evidence challenge must focus on 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
Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original). In the habeas context, “[t]he Jackson standard
must be applied ‘with explicit reference to the substantive elements of
the criminal offense as defined by state law.’” Brown v. Palmer, 441
F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16)).
“Two layers of deference apply to habeas claims challenging
evidentiary sufficiency.” McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir.
2010) (citing Brown v. Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)).
First, the Court “must determine whether, viewing the trial testimony
and exhibits 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.” Brown, 567 F.3d at 205, citing Jackson, 443 U.S.
at 319. Second, if the Court were “to conclude that a rational trier of
fact could not have found a petitioner guilty beyond a reasonable doubt,
on habeas review, [the Court] must still defer to the state appellate
court’s sufficiency determination as long as it is not unreasonable.” Id.
In short, “deference should be given to the trier-of-fact’s verdict, as
contemplated by Jackson; [then] deference should be given to the [state
court’s] consideration of the trier-of-fact’s verdict, as dictated by
AEDPA.” Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008) (citation
omitted). The Jackson standard is “exceedingly general” and therefore
Michigan courts are afforded “considerable leeway” in its application.
Davis v. Lafler, 658 F.3d 525, 535 (6th Cir. 2011).
Under Michigan law, to establish the crime of second-degree
murder, the prosecution must prove: (1) a death, (2) caused by an act of
the defendant, (3) committed with malice, and (4) without justification
or excuse. People v. Smith, 478 Mich. 64, 70 (2007). “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 willful disregard of the likelihood that the
natural tendency of such behavior is to cause death or great bodily
harm.” People v. Goecke, 457 Mich. 442, 464 (1998). Malice may be
inferred from the use of a weapon, from circumstantial evidence, or
from evidence that the defendant intentionally set into motion a force
likely to cause either death or great bodily harm. People v. Roper, 286
Mich. App. 77, 84-86 (2009). The elements of assault with intent to
commit murder are (1) an assault, coupled with (2) specific intent to
kill, (3) which, if successful, would make the killing murder. People v.
Taylor, 422 Mich. 554 (Mich. 1985). The intent to kill may be proven by
inference from circumstantial evidence. Warren v. Smith, 161 F.3d 358,
361 (6th Cir. 1998). A person is guilty of discharging a firearm at an
occupied building if the individual “discharges a firearm at a facility
that he or she knows or has reason to believe is a dwelling or an
Mich. Comp. Laws § 750.234b.
elements of felony-firearm are: (1) the defendant possessed a firearm,
(2) during the commission of, or an attempt to commit, a felony offense.
People v. Avant, 235 Mich. App. 499, 505 (2003).
The Michigan Court of Appeals rejected Petitioner’s claim on the
merits finding that Reed’s testimony was sufficient to support a jury’s
finding that Petitioner was one of the shooters. Davis, Jr., 2014 WL at
*3. The state court noted that Reed knew Petitioner before the shooting
and observed the shooting from a close distance. Id. The state court
declined to interfere with the trier-of-fact’s determination. Id.
The Michigan Court of Appeals’ conclusion is supported by the
record. Petitioner challenges Reed’s credibility. But the Court does not
have the benefit of observing Reed’s demeanor or voice inflections. The
jury did have that benefit and obviously chose to credit Reed’s
“A reviewing court does not reweigh the
evidence or redetermine the credibility of the witnesses whose
demeanor has been observed by the trial court.”
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003), (citing Marshall v.
Lonberger, 459 U.S. 422, 434 (1983)). Instead, faced with contradictory
testimony, the Court “‘must presume – even if it does not affirmatively
appear in the record – that the trier of fact resolved any such conflicts
in favor of the prosecution, and must defer to that resolution.’”
McDaniel v. Brown, 558 U.S. 120, 133 (2010), (quoting Jackson, 443
U.S. at 326). Reed’s testimony, if credited, supported the jury’s finding
that Petitioner was the shooter. Habeas relief is denied on this claim.
For the reason set forth above, the Court will deny the petition for
a writ of habeas corpus.
Federal Rule of Appellate Procedure 22 provides that an appeal
may not proceed unless a certificate of appealability (“COA”) is issued
under 28 U.S.C. § 2253. Rule 11 of the Rules Governing Section 2254
Proceedings requires that the Court “must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.”
A COA may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C.
A petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.”
McDaniel, 529 U.S. 473, 484 (2000) (citation omitted).
The Court finds that jurists of reason would not debate the
conclusion that the petition fails to state a claim upon which habeas
corpus relief should be granted, and denies a certificate of appealability.
The Court further concludes that Petitioner will not be granted
leave to proceed on appeal in forma pauperis because any appeal would
be frivolous. See Fed. R. App. P. 24(a).
Accordingly, the Court DENIES WITH PREJUDICE the petition
for a writ of habeas corpus. (Dkt. 1.)
The Court further DENIES a certificate of appealability and leave
to appeal in forma pauperis.
IT IS SO ORDERED.
Dated: November 28, 2017
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on November 28, 2017.
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