IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

HENRY DAVIS, ) 

 ) 

 Petitioner, ) 

 ) 

 vs. ) No. 12 C 1550 

 ) 

MICHAEL LEMKE, ) 

 ) 

 Respondent. ) 

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge: 

 In January 2005, an Illinois judge convicted Henry Davis of first-degree murder in 

connection with the death of a man near a Chicago nightclub in 2002 and imposed a 

prison sentence of forty-five years. The Illinois Appellate Court affirmed Davis's 

conviction on direct appeal. After the Illinois Supreme Court denied his petition for 

leave to appeal, Davis filed a petition for post-conviction relief. The Circuit Court of Cook 

County denied the petition, and the Illinois Appellate Court affirmed the decision, 

followed by the Illinois Supreme Court's denial of his petition for leave to appeal. 

 Davis has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. 

§ 2254. He has made several claims, some filed in an initial pro se petition and others 

in a revised pro se petition. He also filed, via counsel, a reply and a motion to amend 

containing additional arguments. Respondent Michael Lemke, the warden of the prison 

where Davis is incarcerated, argues that the claims are procedurally defaulted or 

otherwise without merit. For the following reasons, the Court denies Davis's petition. 
2

Background 

A. Trial court proceedings 

 Early on the morning of October 20, 2002, Shenandoah Hogan was shot three 

times: once in his back, once in his left arm, and once in his right thigh. He died the 

same day. The shooting occurred outside a Burger King restaurant on South Michigan 

Avenue in Chicago on the same block as E2, a nightclub operating there at the time. 

Henry Davis was arrested that same morning and was indicted the following month for 

first-degree murder. 

 Davis's bench trial began on January 12, 2005. The prosecution contended that 

Davis and Hogan were involved in a fight outside the nightclub, during which Davis shot 

Hogan and then fled from police, discarding the gun along the way. Davis's attorney 

conceded that Davis fired the shots but argued that he did so in self-defense, "to protect 

himself from deadly harm." Ex. P at BB-8. Counsel further contended that Davis did 

not bring a gun to the club but rather obtained it during a struggle with Hogan and 

another assailant, during which Hogan was shot. Then, the attorney argued, Davis shot 

Hogan again "because he didn't know whether the person in the orange shirt [Hogan] 

was going for another weapon or what." Id. at BB-13. 

 The prosecution first called Adrienne Segovia, a deputy medical examiner in the 

Cook County Medical Examiner's office who performed the autopsy on Hogan and 

opined that he died as a result of multiple gunshot wounds. She testified that Hogan's 

body had three such wounds: one on the right side of his back that had "coursed back 

to front"; another on the back of the left arm; and the third on Hogan's right anterior 

thigh. Id. at BB-20–22. Segovia testified that the back gunshot wound was consistent 
3

with being shot from behind. Hogan also had "ten abrasions or scrape marks on the 

body," id. at BB-22, which Segovia testified were consistent with Hogan having crawled 

on a rough surface or pavement. On cross-examination, Segovia testified that the 

wound to Hogan's thigh entered from the front of the leg and that it was "possible" that 

the bullet had entered the thigh as a result of a ricochet. Id. at BB-34. She further 

testified that abrasions Hogan had above his eye were consistent with having been in a 

fight. 

 After Hogan's mother testified, the prosecution called Jonathan Masupha, a 

friend of Hogan, who was at the E2 nightclub on the night Hogan was killed. Masupha 

testified that after leaving E2 that evening, he saw Hogan near the parking lot of a 

Burger King, where he began fighting with a "big guy"—the same person who earlier 

had broken up a fight between two women at the club. Id. at BB-51. Masupha ran up to 

the fight and saw a female hitting Hogan in the head with a bottle; Masupha said he 

then hit the woman who had wielded the bottle. He testified that a larger fight 

proceeded to break out, and "[t]he whole parking lot seemed like they were 

participating." Id. at BB-53. Masupha said he pulled Hogan "to the back" and then saw 

"[t]he guy on the side of him" make "a reaching motion. At the same time, I began to 

turn around, heard shots. I'm running." Id. at BB-53–54. Masupha clarified that the 

man making the reaching motion "was going for his waist," although Masupha did not 

see a gun. Id. at BB-54. As Masupha turned to run from the scene, he "heard a 

gunshot real loud towards my face," after which he began to run away; when he 

returned, Hogan "was already in the ambulance." Id. at BB-55. Masupha further 

testified that he did not see Hogan with a gun and that E2 employees performed pat-
4

downs of those who entered the club that night. On cross-examination, Masupha 

testified that he thought Hogan's car was parked in the Burger King parking lot but that 

he did not see it there. He added that there was a slight pause after the first shot he 

heard, followed by "[t]wo to three, maybe four" others. Id. at BB-73. 

 A witness named Amanda Conkel testified that she was exiting E2 when she 

heard shots; after taking cover, she got up to see "a guy running"—a person who had 

had "words" with Hogan at the club—"and Shenandoah was just falling." Id. at BB-89–

90. She testified that she later identified Davis in a lineup as the person she saw 

running after the shooting, and she identified a dark blue Monte Carlo as the car she 

saw speeding from the Burger King parking lot after the shooting. 

 The prosecution also called Ira Lynch, a sergeant in the Chicago Police 

Department who was monitoring crowd control from his car in the area of E2 when he 

"saw what appeared to be a scuffle." Ex. Q at BB-162. He then heard shots fired and 

was moving toward the Burger King when he "observed a subject who was the victim 

crawling into the street." Id. He also saw, from about twenty feet away, "the victim 

crawling out into the street and someone standing over him shooting down at him, the 

offender." Id. at BB-163. The shooter, whom Lynch identified as Davis, fired three 

times, Lynch testified; Lynch then moved closer, at which point Hogan pointed to Davis 

and said that Davis had shot him. Lynch said Davis walked quickly to a dark blue 

vehicle and drive out of the Burger King parking lot, and Lynch blocked Davis's exit with 

his squad car, after which Davis drove over the sidewalk. Lynch said he followed Davis 

as he drove around the area, until Davis lost control of his car and ran into a tree. Davis 

then exited the car, Lynch testified, and began running away down Cermak Road while 
5

officers gave chase. Later that morning, Lynch said, he identified Davis in a lineup at 

Area 4 police headquarters. 

 James Brill, another Chicago police officer, also testified. He said he had 

responded to a call reporting shots fired around 4:00 a.m. on October 20, 2002, and 

followed a car that looked like the one described in the call. He followed Davis in the 

car around local streets until Davis jumped a curb and hit a tree. Brill testified that Davis 

exited the vehicle and ran, and Brill followed on foot. Brill said he saw that Davis was 

carrying a handgun, which ejected its magazine when Davis stopped at one point to 

observe that his shoes had come off. Brill picked up the magazine and continued 

chasing Davis. Brill and other officers apprehended Davis as he attempted to climb a 

fence into the Metra rail yard. As Davis was being moved into a nearby squad car, Brill 

heard Davis say "that he had hoped that he shot the right person." Id. at BB-213. Davis 

had gotten rid of the gun at some point during the chase, and Brill testified that the 

police canine unit was called in and found a gun in a compost bin shortly after the chase 

ended. The gun, Brill said, was the same one Davis had been holding earlier. 

 The prosecution also called Andrew Block, another Chicago police officer, who 

saw Davis running on foot the morning of the shooting. Block testified that he was 

among the officers who arrested Davis and also heard him say, "I hope I shot the right 

guy." Id. at BB-229. Other officers who had collected evidence from the Burger King 

testified, along with a forensic investigator who found evidence there and at the scenes 

of Davis's car crash and arrest. Cid Drisi, a forensic scientist with the Illinois State 

Police, testified that he had tested a pistol, one bullet, casings, a magazine, and some 

clothing, including a jacket with a hole in it. The jacket, Drisi testified, was "consistent 
6

with the passage of a bullet," and the bullet and cartridges had been fired from the 

submitted pistol. Ex. P at BB-125–32. John Onstwedder, another forensic scientist 

from the state police, testified that there were no latent fingerprints on the cartridges, 

pistol, or magazine he tested in this case. 

 After unsuccessfully moving for a directed finding of not guilty at the conclusion 

of the prosecution's case, the defense called Eric Mason, who testified that he was at 

E2 early on the morning of October 20, 2002, where he saw "some arguing," involving a 

"lot of people" who were "swinging." Ex. Q at CC-18, 26. After he left the club, he was 

attacked by two men. One of them, Mason testified, wore an orange shirt and hit him in 

the nose; Mason thought the assailant had "a shiny object" in his hands. Id. at CC-21–

23. On cross-examination, he clarified that the object looked like a gun. James Walker, 

who was with Mason at E2, said he saw "guys on top of guys brawling" at the club. Id.

at CC-38. After leaving the club, Walker said, he saw Mason bent over and holding his 

hands to his face; Walker then ran across the street and saw "15 to 20" men and 

women fighting. Id. at CC-40. One of the men was wearing an orange shirt, he said, 

and "made a gesture at me as far as with his hand up under his shirt," which Walker 

said made it look like he was reaching toward a gun in his waistband. Id. at CC-41. 

(On cross-examination, he testified that he did not actually see a gun.) Walker said he 

retrieved Mason and drove him to the hospital and that Mason told him he had been hit 

in the face with a pistol. 

 Raquel Chapman, Davis's girlfriend and the mother of his son, also testified. She 

testified that she was at E2 on the day in question and that the club had security people 

using metal wands to check entrants for weapons. Chapman said she hugged Davis 
7

both at E2 and shortly after leaving the club and did not feel a metal object on him when 

doing so. She parted from Davis after leaving the club, she testified, and later returned 

there looking for Davis and saw a body lying on the ground. Later, on her route back 

home, she saw Davis's car after it had been in an accident. 

 Davis testified last. He said that security guards searched him with metal wands 

when he entered E2 on the morning in question and that he did not have a gun on his 

person or in his car. After leaving the club, Davis said, he walked Chapman to her car 

and then went toward the Burger King on South Michigan; there, "a guy approached me 

with a gun." Id. at CC-77. Davis testified that he grabbed the gun and "tussled" with the 

man over it; the gun "went off a couple times." Id. at CC-79. At that point, Davis said, 

the man's friends approached him and started hitting him from behind. "Then once they 

were attacking me and I grabbed possession of the gun I just fired the gun." Id. at CC80–81. When asked why he was firing the gun, Davis said, "They were attacking me. I 

don't know what was going on. I didn't know what it was. So once I got the gun I was 

protecting myself." Id. at CC-81. The person he fired at, he said, was wearing an 

orange shirt and had been hitting him. Afterward, Davis said, he ran to his car and left, 

with the police chasing him. On cross-examination, Davis said he shot at "[t]he guy that 

was hitting [me] from behind" after turning around to face him. Id. at CC-85. "I guess 

he proceeded to run once I turned around. He didn't have his back to me when I ended 

up open and fired." Id. at CC-86. The prosecutor then asked whether Davis shot the 

man when he had his back to him and was trying to get away. Davis responded that he 

did not know and was "just in the heat of the moment" but admitted he never saw the 

man he had shot holding a gun. Id.
8

 After closing arguments, the court convicted Davis of first-degree murder. In 

explaining its decision, the court said that it did not know where Davis got the gun: 

"Whether his gun came from his cast in his arm, whether it came from a bush, his girl 

friend's car, his car, whether he had it all night long, I do not know." Id. at CC-112. The 

court credited Lynch's testimony that Davis was standing over Hogan and "shooting into 

his body." Id. The court noted that the shots had gone "from back to front and upward 

consistent with crawling, where the victim being down [sic] on the grounds [sic] when 

shot." Id. at CC-113. "[T]hat is not self-defense," the court said. Id. The court also 

cited Davis's leaving the scene and running from police, which "was remarkable flight 

from the police after the shooting," including Davis's turning toward a pursuing officer 

with a weapon in hand. Id. Davis's sentence was forty-five years. 

B. Appeal and post-conviction proceedings

 On appeal, Davis presented two issues. First, he argued that his claim of selfdefense had shifted the burden of proof to the prosecution, noting that the Illinois selfdefense statute permits the use of deadly force to prevent a forcible felony. There was 

"more than enough evidence," Davis argued, to show that he did not have a gun and 

that he was attacked by robbers. Ex. C at 22–23. Davis contended that the testimony 

of Lynch, the officer who said he saw Davis shooting down at Hogan, was "mistaken" 

and inconsistent with Masupha's testimony, because Lynch did not see some of the 

things Masupha reported about the "brawl" outside the Burger King. Id. at 24–27 (citing 

studies about the frequency of mistaken eyewitness identifications). Second, Davis 

contended that the prosecution had "at most" proven he was guilty of second-degree 

murder. Id. at 30. 
9

 The appellate court affirmed Davis's conviction. The court first addressed 

Davis's self-defense argument. It noted that self-defense is an affirmative defense, "and 

once raised by defendant, the State has the burden of proving beyond a reasonable 

doubt that defendant did not act in self-defense . . . ." Ex. A at 8. The court listed six 

elements of self-defense and said that "[d]efendant's claim of self-defense must fail if 

any one of these elements is negated by the State." Ex. A at 8 (citing People v. Lee, 

213 Ill. 2d 218, 224, 821 N.E.2d 307, 311 (2004), and People v. Young, 347 Ill. App. 3d 

909, 920, 807 N.E.2d 1125, 1134 (2004)). Considering the evidence by assessing 

whether "any rational trier of fact could have found beyond a reasonable doubt that 

defendant failed to act in self-defense," the court held that substantial evidence 

supported the trial court's conclusion. Id. at 9. The court placed emphasis on Lynch's 

testimony, Davis's flight from police, and the autopsy results showing Hogan was shot in 

the back. The court said that even if Davis's version of events were true—that he was 

the victim of an assault—the facts showed that Hogan himself did not have a gun but 

was hitting Davis from behind and then was trying to get away when Davis shot him. 

Therefore, Davis "failed to show that the force he used against the victim was necessary 

to justify self-defense." Id. at 10. The court also rejected Davis's alternate argument 

that he was guilty of second-degree murder at most. Considering the fact that Davis 

"shot the unarmed victim in the back while the victim was crawling away from him," the 

court said that "no mitigating factors were presented" sufficient for "a finding of second 

degree murder." Id. at 10–11. 

 Following the appellate court's decision, Davis filed a pro se petition for leave to 

appeal with the Illinois Supreme Court, which the court denied in November 2008. In 
10

2009, Davis filed a post-conviction petition. He made ten claims, eight of which 

concerned the performance of his trial counsel. These included claims regarding how 

counsel handled Davis's theory that he was attacked in order to rob him of his jewelry, 

misrepresentations about the duties and actions of the prosecutors and detectives 

handling his case, counsel's failure to investigate those individuals and their reports, 

charts, and inventory procedures, and his recommendation that defendant waive his 

right to a jury trial. Davis also contended that his due process rights were violated when 

prosecutors and investigators removed his jewelry and falsified reports. Finally, Davis 

claimed that 730 ILCS 5/5-8-1(d)(i), which provides for sentencing enhancements based 

on use of a firearm, violated the constitution's Equal Protection Clause. Davis attached 

several affidavits to his petition as well as photographs of the jewelry in question. 

 The trial court denied Davis's post-conviction petition. The court first held that 

"all of petitioner's claims could have been raised on direct appeal" but were not and 

were thus waived. Ex. S at C125. The court nonetheless proceeded to address the 

merits of the claims. It noted that many of the claims derived from Davis's argument 

that Hogan tried to rob him and that police improperly removed and inventoried his 

jewelry. The court said it was unclear how these events violated Davis's due process 

rights and that because Hogan was unarmed and retreating when Davis shot him, Davis 

did not present facts sufficient to disturb the finding that he did not act in self-defense. 

The court also found "baffling" Davis's claim that the police falsified their reports; it said 

this claim could not negate the fact that Davis did not meet the elements of selfdefense. Id. at C127. Citing Strickland v. Washington, 466 U.S. 668 (1984), the court 

also held that Davis could not demonstrate that his attorney's various failures to 
11

investigate prejudiced him. Davis's argument that there was a police cover-up was 

"speculative and implausible," the court said, and regardless of any failure by counsel to 

investigate it, the outcome of the trial would not have changed, because Davis "shot an 

unarmed man from behind as he crawled across the ground away from petitioner." Ex. 

S at C129. In addition, the court held that trial counsel's recommendation that Davis 

request a bench trial was trial strategy that did not constitute ineffective assistance. The 

court noted that it has "duly admonished" Davis regarding the jury waiver and that he 

did not object to the waiver, and it concluded that the waiver was not "unknowing or 

unintelligent." Id. at C130. Finally, the court rejected Davis's argument that the 

sentencing enhancement statute violated the Equal Protection Clause, citing People v. 

Sharpe, 216 Ill. 2d 481, 839 N.E.2d 492 (2005). In sum, it found that Davis's claims 

were "frivolous and patently without merit" and dismissed the petition. Ex. S at C132. 

 Davis appealed the circuit court's decision in August 2010, presenting just one 

claim on appeal: that the circuit court's decision was incorrect because "trial counsel 

was ineffective for failing to present evidence supporting Davis's claim of self-defense." 

See Ex. I at 15. Davis argued, as he had before the trial court on his post-conviction 

petition, that trial counsel should have presented evidence that Davis was wearing 

jewelry at the time of the incident and that he believed he was being robbed. He 

contended that his shooting of Hogan may have been based on "a reasonable or 

unreasonable belief that he remained vulnerable to further assault from Hogan—

perhaps from a weapon on Hogan's person or hidden in or near the car that Hogan was 

touching when he was shot." Id. at 23. Davis's brief also touched on the notion that he 
12

was guilty of, at most, second-degree murder because he acted in self-defense, though 

he did not present this as a separate argument. 

 The appellate court affirmed the dismissal of Davis's post-conviction petition. 

After first concluding that Davis had not waived his claims, contrary to the circuit court's 

ruling, the appellate court proceeded to hold that it was legitimate trial strategy for trial 

counsel to decide not to present evidence that Davis was being robbed of his jewelry. 

The court cited Davis's testimony that he did not know whether he was being robbed 

and the fact that police reports did not mention a robbery. It also pointed to trial 

counsel's attempts "to show that defendant may have been the victim of an attempted 

robbery through other means, i.e., the testimony of Mason and Walker." Ex. H at 9. 

Further, the court said trial counsel's opening statement showed that he was already 

making a self-defense argument. "[T]he fact that defendant was wearing jewelry at the 

time he was allegedly being robbed would not add any relevant evidence to his selfdefense argument because it did not matter why he was being attacked." Id. at 9–10. 

Finally, the court determined that Davis had not shown prejudice from his attorney's 

actions, because the evidence of his guilt of first-degree murder was overwhelming. It 

also held that the jewelry evidence would not have been sufficient to reduce his offense 

from first- to second-degree murder, because the record did not show that Davis acted 

in self-defense, either reasonably or unreasonably. Id. at 11. 

 Following the appellate court's decision, Davis filed a petition for leave to appeal 

with the Illinois Supreme Court. The court denied the petition in November 2011. 

 
13

C. Habeas corpus petitions

 Davis filed a pro se habeas corpus petition in this Court in March 2012, arguing 

claims of ineffective assistance of counsel for failure to investigate, prosecutorial 

misconduct, and the unconstitutionality of the statute used to enhance his sentence. 

One month later, in April 2012, Davis filed an amended pro se habeas corpus petition, 

making three other claims. (The amended petition did not reference Davis's earlier 

petition, but the Court is considering all of the claims in both of them.) In the amended 

petition, Davis argues that there was insufficient evidence to convict him and override 

his self-defense argument; that he was at most guilty of second-degree murder; and 

that his trial counsel was ineffective for failing to present evidence supporting his selfdefense theory. 

 After Lemke responded, newly-retained counsel for Davis filed a reply, which he 

combined with a motion to amend his habeas corpus claims. In the reply, Davis states 

that his counsel "found additional facts which create meritorious claims that principles of 

federal law were unreasonably applied" and that leave to amend is needed "to fully 

organize the facts in the state court record and place them in a meaningful light so as to 

reveal the errors." Repl. ¶¶ 6–7. Davis then outlines principles of law related to the 

right to self-defense and notes a discrepancy between the Illinois state statute on selfdefense and the way state courts have addressed self-defense. He argues that trial 

counsel should have recognized the discrepancy and argued it in relation to the selfdefense claim. Davis further contends that the application of the courts' test for selfdefense violated his due process rights. 
14

 Lemke filed a supplemental response to the reply and motion to amend. 

Observing that it is unclear what new arguments Davis was seeking to advance that 

would warrant leave to amend, Lemke argued that some of the points in the reply 

concerned claims Davis already made in his amended petition and that any new claims 

introduced in the reply are either not cognizable, procedurally defaulted, or lacking in 

merit. Davis responds in a supplemental reply that Lemke "went beyond the intended 

task of whether the petitioner could amend his habeas claims, thereby creating a 

document which was an answer to the claims." Supp. Repl. at 1. Therefore, Davis 

says, he will "not accept the invitation of respondent to reply." Id. at 2. He proceeds in 

the supplemental reply to outline the principles of the "relation back" doctrine under 

Mayle v. Felix, 545 U.S. 644 (2005), and apply them to his case. 

Discussion 

 A petitioner is entitled to a writ of habeas corpus "only on the ground that he is in 

custody in violation of the Constitution or laws or treaties of the United States." 

28 U.S.C. § 2254(a). A federal court may issue a writ of habeas corpus on a claim that 

was adjudicated on the merits in state court proceedings only if the state court's 

decision (1) "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." Id. § 2254(d); see also 

McElvaney v. Pollard, 735 F.3d 528, 531–32 (7th Cir. 2013). 

 
15

A. Claims in initial petition

 In his initial habeas corpus petition, Davis makes three claims. First, he argues 

that his defense counsel failed to investigate the case properly, because he "never 

investigated or looked at Police reports." Pet. at 5. Had counsel done so, Davis says, 

he would have noticed handwritten modifications and acted upon them. Second, Davis 

contends that there was prosecutorial misconduct before his trial, because one of the 

assistant state's attorneys removed the jewelry Davis was wearing when arrested, 

"improperly inventoried" it, tampered with it, and gave it to Davis's friend. Id. The 

jewelry, Davis says, was potentially relevant and material to his self-defense argument 

at trial. Finally, Davis argues that an Illinois statute requiring an addition of fifteen years 

to a sentence for first-degree murder if committed with a firearm is unconstitutional. 

See 730 ILCS 5/5-8-1(d)(i). 

 In response, Lemke contends that these arguments are procedurally defaulted 

because they were not exhausted through one full round of state court review. He also 

argues that Davis has not demonstrated cause for the default and prejudice from the 

violation of federal law, and that he cannot show he is innocent such that failure to 

consider his claims would amount to a fundamental miscarriage of justice. Further, 

Lemke says Davis waived his initial three claims by failing to incorporate them into his 

amended petition. The Court rejects the last of these points; Davis was proceeding pro 

se, and there is no basis to believe that in filing the amended petition, he intended to 

eliminate his original claims. Rather, he was simply adding to them. 

 The Court addresses the procedural default issue first. "As a general matter, 

federal habeas courts are precluded from considering habeas claims that were 
16

procedurally defaulted because they were not presented for one complete round of 

state court review." Coleman v. Lemke, 739 F.3d 342, 349 (7th Cir. 2014). In Illinois, 

this means that "a petitioner must present a claim at each level of the state court 

system, either on direct appeal or in post-conviction proceedings." McDowell v. Lemke, 

737 F.3d 476, 482 (7th Cir. 2013). Otherwise, the claim is defaulted. A federal court 

may consider a defaulted claim if there is "cause for the default and prejudice from a 

violation of federal law." Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Otherwise, a 

petitioner can overcome a default by demonstrating that "failure to consider his claim 

would result in a fundamental miscarriage of justice (i.e., a claim of actual innocence)." 

Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013) (internal quotation marks 

omitted). 

 Davis did not pursue any of the three claims from his original habeas corpus 

petition through a complete round of state court review, and he does not contend 

otherwise in any of his submissions to this Court. The claims in question were first 

asserted in Davis's post-conviction petition. But argument in his briefs on appeal and in 

his petition for leave to appeal following the dismissal of the petition was limited to his 

counsel's failure "to present evidence showing that Davis was wearing expensive 

jewelry at the time of his confrontation with Hogan." Ex. I at 15; see also Ex. L at 17 ("If 

defense counsel had presented evidence that Davis was wearing expensive jewelry and 

had not advised Davis to avoid testifying about the armed robbery attempt, the court 

would have been presented with an entirely different (and accurate) scenario."). Davis's 

petition for leave to appeal did mention "counsel's failure to properly acquaint himself 

with the police reports in Davis' case (specifically, that Davis had, in fact, previously 
17

informed the police that he believed he was the victim of an attempt armed robbery)." 

Ex. L at 16. However, Davis made no similar statement in his appeal to the Illinois 

Appellate Court. 

 With regard to the other two claims, though Davis asserted them in his original 

post-conviction petition, see Ex. S at C53 & C57, he did not raise either claim in his 

post-conviction appeal briefs or his petition for leave to appeal. Finally, he did not raise 

any of the three claims on direct appeal. 

 For these reasons, all three claims are defaulted. See O'Sullivan v. Boerckel, 

526 U.S. 838, 848 (1999) ("Boerckel's failure to present three of his federal habeas 

claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural 

default of those claims."). Davis does not argue that he is able to demonstrate cause 

for the defaults, that he is actually innocent, or that excusing the defaults is otherwise 

necessary to prevent a miscarriage of justice. Because Davis has not established a 

sufficient excuse for his defaults, the Court may not consider the merits of the claims. 

B. Claims in amended petition

 In his amended petition, Davis advances three claims. First, he argues that the 

prosecution offered insufficient evidence at his trial to convict him, pointing to evidence 

that he says supports the proposition that he acted in self-defense. Second, he 

contends that the prosecution "at most" proved him guilty of second-degree murder, 

because his shooting of Hogan arose from "mutual combat" and Hogan was "an 

aggressor." Amended Pet. at 18–21. Third, Davis advances a claim of ineffective 

assistance of counsel distinct from the one he asserted in his first petition. Specifically, 

he argues that his trial counsel should have presented certain evidence supporting his 
18

self-defense argument, namely the fact that he "was wearing expensive jewelry at the 

time he was held at gun-point," along with his "impression that he was robbed." Id. at 

22. For each of these three claims, Davis requests an evidentiary hearing.1

 Lemke 

contends that the appellate court's rulings on these issues were not unreasonable and 

that Davis's argument on his eligibility for a second-degree murder conviction is not 

cognizable here and otherwise lacks merit. 

1. Sufficiency of the evidence

 Davis argues in his amended petition that the state appellate court's decision to 

affirm his conviction was an unreasonable application of Jackson v. Virginia, 443 U.S. 

307 (1979). Davis says he presented evidence of self-defense sufficient to shift the 

burden of proof to the prosecution. He then contends, focusing on the fight that 

occurred before he shot Hogan, that the prosecution failed to successfully rebut his 

evidence of self-defense. Specifically, Davis says that Sergeant Lynch's testimony was 

"mistaken" because he could not see the fight that preceded the shots and that 

Masupha provided details of the fight that show Davis was defending himself. Amended 

Pet. at 16. Davis contends: "the defense presented uncontradicted evidence that 

Petitioner was unarmed, was not the aggressor, and had to pull the gun away from his 

 

1

 At the conclusion of each of his claims, Davis says that he "challenges the 

presumption of correctness of the State court's factual finding because he has rebutted 

this presumption with clear and convincing evidence." See Amended Pet. at 17, 21, 26. 

A state court's factual findings are presumed correct, and Davis cites the proper 

standard—he has the burden to rebut this presumption with clear and convincing 

evidence. See 28 U.S.C. § 2254(e)(1). Davis makes no argument, however, beyond 

his general contention that he has succeeded in satisfying the standard. And as Lemke 

points out, Davis does not identify any particular finding as incorrect. Resp. at 14. Even 

if the Court were to assume that Davis intends his entire amended petition as a factual 

challenge to the state appellate court, he has not offered the sort of clear and 

convincing evidence necessary to overcome the presumption that the findings in 

question are correct. 
19

assialants [sic] before he fired in self defense." Id. at 17. He further argues that Illinois 

law permits the use of deadly force if the person wielding the force reasonably believes 

it is necessary to prevent a forcible felony. 

 Lemke counters that the appellate court's decision to affirm Davis's conviction 

was a reasonable application of the standard articulated in Jackson. He argues that 

Lynch's testimony was credible and corroborated by the autopsy of Hogan, and he 

points to Davis's flight from police and statement that he hoped he shot the right person 

as additional evidence of guilt. 

 "The burden on a sufficiency-of-the-evidence challenger is heavy." United States 

v. Bloch, 718 F.3d 638, 641 (7th Cir. 2013). "[T]he relevant question 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, 443 U.S. at 319. The burden is even more daunting in a habeas corpus 

proceeding. "Jackson claims face a high bar in federal habeas proceedings because 

they are subject to two layers of judicial deference"—first, the deference due to a 

conviction on direct appeal, and second, a federal court's duty not to disturb a state 

court's decision on sufficiency of the evidence unless it was "objectively unreasonable." 

Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (per curiam). 

 The appellate court's decision in Davis's direct appeal was not an unreasonable 

application of Jackson. The court cited facts sufficient to convince a rational trier of fact 

to find that the prosecution had met its burden to prove beyond a reasonable doubt that 

Davis committed first-degree murder and that he did not act in self-defense. The court 

identified several items of evidence that led to its conclusion that the prosecution had 
20

proven Davis's guilt beyond a reasonable doubt. It devoted the most space to Lynch's 

testimony, noting that he was first prompted to arrive at the scene by hearing gunshots; 

thereafter, he testified, he saw Hogan crawl into the street and Davis shoot down at him 

three times. The appellate court also credited Lynch's testimony that Hogan told Lynch 

that Davis shot him as well as Davis's statement when apprehended that he hoped he 

shot the right person. The court noted that the autopsy supported Lynch's testimony in 

that it showed "that the victim had been shot in the back" and was thus "sufficient to 

support the trial court's finding that defendant did not act in self-defense." Ex. A at 10. 

The court also stated that Davis's flight from police after shooting Hogan supported its 

conclusion. Further, the court reasoned, even if Davis had been attacked and Hogan 

was hitting him in the back as he claimed, he nonetheless shot Hogan in the back once 

he started to run or turn away. Therefore, the appellate court held, a rational trier of fact 

could have found beyond a reasonable doubt that Davis was not acting in self-defense 

when he shot Hogan. 

 This conclusion was not unreasonable. Lynch's testimony was clear and 

unequivocal, and it was consistent with the testimony of Segovia, the medical examiner 

who said Hogan's back wound was consistent with being shot from behind. 

 Further, Davis is not necessarily correct that the testimony of Lynch and of 

Masupha are contradictory. Davis argues that Lynch's "version of the events was in 

many respects inconsistent with Masupha's testimony." Amended Pet. at 16. In 

support, Davis says Lynch was farther from the brawl than Masupha was and that Davis 

did not see a woman hit Hogan with a bottle, Masupha hit that woman, or a "huge" guy 

fighting Davis. Id. Davis further argues that "Lynch added a detail—that Petitioner shot 
21

Hogan—which Masupha, who was standing at Hogan's side, did not see." Id. Lynch's 

testimony, Davis claims, is therefore "irreconcilable" with Masupha's. Id. Masupha 

testified. however, that he fled the scene of the fight after hearing a round of gunshots. 

Lynch, too, heard gunshots; he testified that he was monitoring crowd control outside of 

E2 when he heard "loud reports, shots fired." Ex. Q at BB-161. He then "immediately 

proceeded closer" to where he heard the shots coming from, having seen "what 

appeared to be a scuffle" there. Id. at BB-162–63. Then he "observed a subject who 

was the victim crawling into the street," with "someone standing over him shooting down 

at him." Id. It is clear from this testimony that Lynch heard two sets of shots: first the 

"loud reports" he heard coming from the scene of a scuffle, and second when he saw 

Davis shooting down at Hogan. Masupha did not testify to hearing a second set of 

shots; his own testimony is that he left the scene after hearing one set. Lynch was at 

the scene for both sets of shots, and he testified as such. The fact that Lynch did not 

witness the fight up close before seeing Davis shoot Hogan is beside the point. And the 

fact that Masupha fled after hearing one series of shots does not mean there were no 

more shots after he left the scene. 

 Furthermore, Davis's own trial testimony was consistent with there being two sets 

of shots, as noted in this exchange: 

Q When you were struggling for the gun, about how 

 many times did it go off? 

A I would have to say like maybe 3 times. 

Q And then what happened? 

A Then once they were attacking me and I grabbed 

 possession of the gun I just fired the gun. 
22

THE COURT What? 

THE WITNESS I just fired the gun. 

Id. at CC-80–81. He was later asked who he was firing at once he had gained 

possession of the gun; he answered, "Anyone [sic] of the guys in the crowd." Id. Given 

these statements, it was not unreasonable for a trier of fact to credit Lynch's testimony 

that he heard shots fired in a scuffle, moved closer to that scuffle, and then saw Davis 

shooting down at Hogan, who was crawling away. Finally, as the appellate court noted, 

even if Davis had been attacked, a reasonable fact finder could determine that his 

shooting into the back of an unarmed man on the ground was not consistent with having 

acted in self-defense. 

 This result does not change simply because, as Davis argues, the Illinois selfdefense statute permits the use of deadly force if a person believes the force is 

necessary to prevent a forcible felony. The appellate court determined that the threat 

Davis was battling had ceased by the time the aggressor, Hogan, was on the ground. 

Regardless of whether Hogan's earlier actions constituted a forcible felony, he was not 

committing one, or about to commit one, as he crawled away. Davis shot an unarmed 

man who, by Davis's own admission, was no longer attacking him. He testified that he 

acquired a gun from one of his attackers, who then ran away; Davis said he then 

"turned around" and Hogan "proceeded to run," but never had a gun.2

 Id. at CC-85–87. 

 

2

 Davis's testimony on one aspect of this point was inconsistent. First, he said Hogan 

"proceeded to run once I turned around." Ex. Q at CC–86. Then, he said Hogan "didn't 

have his back to me when I ended up open and fired." Id. Finally, when the 

prosecution asked if Hogan had his back to Davis when Davis shot him, Davis said, "I 

really don't know about that part. I was just in the heat of the moment." Id. It was not 

unreasonable for the trier of fact to credit Lynch's testimony that Davis shot Hogan when 

Hogan was on the ground with his back to Davis, over this testimony; this Court cannot 
23

 Davis is therefore incorrect that the testimony at trial on this point was 

inconsistent and that the state courts' reliance on Lynch's testimony was misplaced. 

Given Lynch's testimony along with the evidence that corroborated it, the appellate 

court's decision to affirm the trial court's conclusion was not an unreasonable 

application of Jackson. 

2. Second-degree murder

 Davis contends that because he was involved in "mutual combat" with Hogan 

and others on the night of the shooting, he had a reasonable belief that deadly force 

was justified. Amended Pet. at 18. He says that as a result, he was guilty of, at most, 

second-degree murder under 720 ILCS 5/9-2(a)(2), not first-degree murder. In making 

this argument, Davis largely goes over the same ground covered in his sufficiency-ofthe-evidence claim, arguing that Masupha's testimony proved there was a large fight 

and that Lynch's testimony did not contradict that fact. In response, Lemke argues that 

this argument is not cognizable in this Court because it does not have a federal 

constitutional basis and that the claim is otherwise meritless because the appellate 

court's rejection of the argument was not unreasonable. 

 An inquiry into whether a prior ruling is correct under state law "is no part of a 

federal court's habeas review of a state conviction." Estelle v. McGuire, 502 U.S. 62, 67 

(1991). "[I]t is only noncompliance with federal law that renders a State's criminal 

judgment susceptible to collateral attack in the federal courts." Wilson v. Corcoran, 

131 S. Ct. 13, 16 (2010) (per curiam) (citing 28 U.S.C. § 2254(a)). The Seventh Circuit 

 

appropriately revisit that determination. See United States v. Taylor, 637 F.3d 812, 

815–16 (7th Cir. 2011) (courts are not to "second-guess" such determinations). 

Regardless, neither Lynch's nor Davis's testimony was inconsistent with the proposition 

that Hogan was no longer attacking Davis when Davis shot him. 
24

recognized this principle in Thompson v. Battaglia, 458 F.3d 614 (7th Cir. 2006), where 

a habeas petitioner challenged the application of Illinois's second-degree murder 

statute. The court sidestepped the merits of the argument, citing Estelle. "Thompson 

does not argue that [the Illinois Supreme Court]'s interpretation of the second-degree 

murder statute violates any federal law; we therefore lack authority under 28 U.S.C. 

§ 2254 to grant his petition on this basis." Id. at 618 (citing Estelle, 502 U.S. at 67–68). 

 Davis's argument can be understood as challenging whether there was sufficient 

evidence to convict him of first-degree murder, but if that is his argument, it lacks merit 

for the reasons described in the previous section. To the extent Davis is arguing 

something other than sufficiency, he argument is based entirely on state law. He cites 

several Illinois cases on second-degree murder, along with the state's second-degree 

murder statute, arguing that the facts of his case match up with those he cites. See 

Amended Pet. at 18 (citing People v. Woodard, 367 Ill. App. 3d 304, 854 N.E. 2d 674 

(1st Dist. 2006); People v. Garibay, 366 Ill. App. 3d 1103, 853 N.E. 2d 893 (2d Dist. 

2006); People v. Blackwell, 171 Ill. 2d 338, 665 N.E. 2d 783 (1996)).3

 This is not a 

question that involves "the Constitution or laws or treaties of the United States." See 

28 U.S.C. § 2254(a). Instead, it requires an interpretation of the Illinois second-degree 

murder statute and case law, and an inquiry into the mitigating factors they require. 

This argument is not a cognizable ground for issuance of a writ of habeas corpus. 

 

3

 The Court notes that although Davis cites these cases for general Illinois case law on 

second-degree murder, they are unhelpful to his argument. In two of them, defendants 

convicted of first-degree murder argued that they were provoked and thus guilty of 

second-degree murder at most; both lost. See Blackwell, 171 Ill. 2d at 356–59;

Woodard, 367 Ill. App. 3d at 316–17. In the third case, the defendant pled guilty to 

second-degree murder, but the court observed that "the evidence of mutual combat 

appears marginal at best," and it noted that "mutual combat" requires the defendant's 

retaliation to "be proportionate to the provocation." Garibay, 366 Ill. App. 3d at 1110. 
25

 The Court acknowledges that Davis cites two Supreme Court cases in the 

section of his petition corresponding to this claim. He concludes his argument on this 

claim by contending that "the State court's adjudication resulted in a decision which is 

contrary to, and involved an unreasonable application, of [sic] clearly established 

Federal law as determined by the Supreme Court of the United States in Jackson v. 

Virginia, and Patterson v. New York." Amended Pet. at 21 (citation omitted). He adds 

that state courts had "ruled contrary to the Supreme Court in similar situations," but "the 

State courts identified the correct principle of law." Id. A mere reference to Jackson

and Patterson does not make his claim cognizable, to the extent he is arguing anything 

other than insufficiency of the evidence, a point the Court has already considered and 

rejected. Davis also does not explain how the appellate court's decision against him on 

the second-degree murder question was "contrary to the Supreme Court." Amended 

Pet. at 21. For these reasons, the Court overrules this claim. 

3. Ineffective assistance of counsel: failure to present evidence

 Davis's third claim in his amended petition is based on one from his postconviction petition: his "trial counsel was ineffective for failing to present evidence 

showing that he was wearing expensive jewelry at the time of his confrontation with 

Hogan." Amended Pet. at 22. This evidence, Davis argues, would have supported his 

theory of self-defense, because he contended that Hogan was trying to rob him of the 

jewelry prior to their lethal altercation. He says that trial counsel dissuaded him from 

testifying that he was the victim of an attempted robbery on the basis that he was not 

sure if he was being robbed and police reports did not mention the robbery. Davis 

argues, however, that his own investigation showed he did tell police that he thought he 
26

was being robbed. Further, Davis argues, the state appellate court's conclusion that 

trial counsel's actions amounted to trial strategy was incorrect. Davis contends that the 

trial judge's expressed lack of knowledge about where the murder weapon came from 

shows he was prejudiced from trial counsel's failure to show that it came from a robbery. 

 Lemke responds that the appellate court's decision was not unreasonable, 

because trial counsel's actions fit within the category of trial strategy, given the fact that 

counsel considered the jewelry evidence but deliberately decided against using it. Also, 

Lemke argues, the appellate court's decision on the absence of prejudice was not 

unreasonable, because the evidence against Davis was overwhelming. 

 In order to establish a claim of ineffective assistance of counsel, a petitioner must 

show both deficient performance and prejudice. Strickland, 466 U.S. at 687. To qualify 

as deficient, the performance must "f[a]ll below an objective standard of 

reasonableness," considered "under prevailing professional norms." Id. at 688. Courts 

must be "highly deferential" when scrutinizing counsel's performance, which is subject 

to a "strong presumption" that it "falls within the wide range of reasonable professional 

assistance." Id. at 689. As for prejudice, "[t]he defendant must show that there is 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 Illinois Appellate Court rejected Davis's ineffective assistance of counsel 

claim for his trial counsel's failure to present evidence that he was wearing jewelry prior 

to his shooting of Hogan. Thus this Court's review is "doubly deferential," owing to the 

application of both Strickland and the Antiterrorism and Effective Death Penalty Act. 
27

Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013). "We take a 'highly deferential' look 

at counsel's performance, through the 'deferential lens of § 2254(d).'" Cullen v. 

Pinholster, 131 S. Ct. 1388, 1403 (2011) (citations omitted) (quoting Strickland, 

466 U.S. at 689; Knowles v. Mirzayance, 556 U.S. 111, 121 n.2 (2009)). 

 In Davis's case, the appellate court recited the correct standard for ineffective 

assistance of counsel, noting that Davis had to show that his "counsel's performance fell 

below an objective standard or reasonableness" and that he was prejudiced as a result. 

Ex. H at 7–8 (citing People v. Hodges, 234 Ill. 2d 1, 17, 912 N.E.2d 1204, 1212 (2009)). 

The court correctly noted that Davis's trial counsel did not fail to make a self-defense 

argument on Davis's behalf, and the court concluded that the jewelry evidence "would 

not add any relevant evidence to his self-defense argument because it did not matter 

why he was being attacked." Id. at 10. As indicated, Davis contends that putting the 

jewelry evidence before the trial court would have assisted in enhancing the credibility 

of his testimony about being robbed, providing the trial court "with an entirely different 

(and accurate) scenario." Amended Pet. at 25. However, the appellate court clearly 

rejected that contention on post-conviction review when it concluded the jewelry 

evidence would have not enhanced the self-defense argument. This conclusion was 

not unreasonable. Even if Davis's credibility may have been enhanced by some degree 

by the trial court's knowledge of the jewelry, the addition of the evidence would not have 

painted an "entirely different scenario"; Davis's self-defense argument had already been 

made. The same is true of any possible references in police reports to Davis's jewelry, 

which Davis says he discovered via his own investigation. This evidence perhaps could 

have buttressed Davis's credibility to some extent, but counsel's decision not to present 
28

it did not necessarily amount deficient performance when other self-defense evidence 

was available—as it was. The appellate court's determination that trial counsel was not 

deficient for declining to pursue this evidence was not an unreasonable application of 

Strickland. 

 The appellate court's conclusion that Davis could not demonstrate prejudice from 

his counsel's performance likewise was not unreasonable. The appellate court pointed 

to Sergeant Lynch's testimony about Davis shooting Hogan as Hogan crawled away, as 

well as Davis's flight from the scene and autopsy evidence regarding the trajectory of 

the bullet in Hogan's back. Davis has challenged the sufficiency of this evidence via a 

separate claim, and as discussed above, that claim lacks merit. Davis does cite the trial 

court's statement that it was uncertain where the gun came from that he used to shoot 

Hogan. But the appellate court on post-conviction review accounted for this, concluding 

"that even if defendant was being robbed for his jewelry prior to the incident that 

resulted in Hogan's death, he clearly became the aggressor when he fired a shot into 

the back of an unarmed man." Ex. H at 10. Davis has not shown a reasonable 

probability that the result of his trial would have been different but for the errors of his 

trial counsel, and the appellate court's decision on that question was not unreasonable. 

C. Arguments from Davis's reply and motion to amend

 In his reply and motion to amend, Davis, via his counsel, first notes that his 

counsel "found additional facts which create meritorious claims that principles of federal 

law were unreasonably applied." Repl. at 2. He proceeds to outline "principles of 

established federal law unreasonably applied," starting with the notion that Davis "has a 

substantive due process constitutional right to bodily integrity, self-preservation, and 
29

self-defense." Id. at 4. He cites in this regard pre-Civil War decisions from the Illinois 

Supreme Court, the U.S. Supreme Court's recent cases on the Second Amendment, 

and the statement from Griswold v. Connecticut, 381 U.S. 479, 487–88 (1965), invoking 

the "penumbra" of due process rights in this country. Davis then argues that the state 

courts "erroneously applied" a six-element test to determine self-defense in his case, 

contending that the test does not comport with the Illinois self-defense statute, which 

permits the use of deadly force to prevent a "forcible felony." Repl. at 9–10 (citing 720 

ILCS 5/7-1(a)). Trial counsel's failure to argue the forcible felony element of selfdefense, he contends, constituted ineffective assistance; "the outcome of the trial would 

have been different if trial counsel would have realized that the 6 elements failed to 

address the forcible felony scenario." Id. at 11. Davis also argues, somewhat 

opaquely, that his due process rights were violated because the burden was shifted to 

him to disprove an element of his offense, id. at 11, and that "his trial counsel's [sic] 

conduct not only failed to raise this error, but erroneously advised petitioner that there 

was no evidence to support that claim." Id. at 12. Finally, Davis says, the six-element 

self-defense test that the state courts used in his case "violated his due process rights," 

because the test permits the prosecution to defeat a self-defense claim by negating one 

of the six elements, which is inconsistent with the state self-defense statute. Id.

 Lemke responds that it is unclear what additional claims Davis intends to assert 

with his reply and motion to amend. Lemke argues that some of the arguments in the 

reply go to Davis's sufficiency-of-the-evidence and ineffective assistance claims and 

thus do not warrant granting a motion to amend. Lemke also contends, however, that 

any new claims in the reply about Davis's constitutional right to self-defense or his 
30

counsel's ineffectiveness for failing to comprehend the law of self-defense in Illinois are 

procedurally defaulted and lacking in merit. 

 It appears that Davis's motion to amend is primarily concerned with Davis's filing 

of his amended petition without seeking leave of this Court to amend and with "fully 

organiz[ing] the facts . . . and plac[ing] them in a meaningful light." Supp. Repl. at 5. 

The Court is willing to take Lemke's invitation in his supplemental response to find that 

Davis's amended claims, from his amended petition and reply/motion to amend, relate 

back to his earlier claims under Mayle, 545 U.S. at 655. Nonetheless, the Court must 

still determine whether the arguments in Davis's reply should be considered further 

arguments in support of claims he has already made, or new claims.4

 The Illinois statute on self-defense says that "use of force which is intended or 

likely to cause death or great bodily harm" is justified if a person "reasonably believes 

that such force is necessary to prevent imminent death or great bodily harm to himself 

or another, or the commission of a forcible felony." 720 ILCS 5/7-1(a). In affirming the 

dismissal of Davis's post-conviction petition, the appellate court listed six elements that 

"a defendant must offer" to make out a self-defense claim: 

(1) unlawful force had been threatened against him; 

(2) he was not the aggressor; 

(3) there was an imminent danger of harm; 

(4) the use of force was necessary; 

(5) he had an actual belief that danger existed that required 

the use of force applied; and 

(6) his belief was objectively reasonable. 

 

4

 The Court notes that the reply and motion to amend were less than clear on whether 

Davis was attempting to make new claims or simply back up old ones with additional 

arguments. In addition, the reply failed to respond to many of Lemke's arguments 

against Davis's claims from his original and amended habeas petitions. The Court 

reads the reply as the amendment Davis wanted to file. 
31

Ex. H at 9 (citing People v. Lee, 213 Ill. 2d 218, 225, 821 N.E.2d 307 (2004)). Davis is 

correct to state when he says in his reply that the words "forcible felony" are not in the 

six-element self-defense test the appellate court used in his case. But Davis had 

already argued, in his amended petition, that his actions constituted proper self-defense 

specifically in responding to a "forcible felony" against him. See Amended Pet. at 13. 

This Court has already rejected that argument, noting that any forcible felony occurring 

prior to Davis's shooting Hogan did not alter the fact that Davis then shot Hogan, who 

was unarmed, in the back as he crawled away. 

 To the extent that Davis posits new claims in his reply, he provides no basis to 

believe they are not procedurally defaulted. At no stage of his two rounds of review in 

the Illinois state courts did Davis argue that (1) he had a substantive due process 

constitutional right to self-defense; (2) his trial counsel was ineffective for not "realiz[ing] 

that the 6 elements [of the self-defense test] failed to address the forcible felony 

scenario," Repl. at 11; (3) the burden was improperly placed on him to disprove an 

element of his offense; or (4) the six-element Illinois self-defense test "violated his due 

process rights," id. at 12. In his reply, Davis does reference his earlier argument that 

trial counsel was ineffective for failing to present evidence of his jewelry to the trial 

court, but the Court has already considered and rejected that argument. The notion that 

trial counsel did not understand the law of self-defense in Illinois and should have 

argued a forcible felony was in progress against Davis is new. 

 Furthermore, at no point in his reply or supplemental reply does Davis argue that 

he can show cause for the default or prejudice resulting from the error or that review of 

these claims is necessary to correct a fundamental miscarriage of justice. See House v. 
32

Bell, 547 U.S. 518, 536 (2006). The Court therefore declines to review the newlyasserted claims. 

D. Certificate of appealability

 When a district court enters a final judgment that dismisses a prisoner's habeas 

corpus petition, it must issue or deny a certificate of appealability (COA). "[F]ederal 

courts of appeals lack jurisdiction to rule on the merits of appeals from habeas 

petitioners" in the absence of a COA. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). 

To obtain a COA, the petitioner must make "a substantial showing of the denial of a 

constitutional right." 28 U.S.C. § 2253(c)(2). A court should issue a COA if it 

determines 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." Slack v. 

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). When a district 

court denies a claim on procedural grounds, the petitioner must show both that "jurists 

of reason would find it debatable whether the petition states a valid claim of the denial of 

a constitutional right and that jurists of reason would find it debatable whether the 

district court was correct in its procedural ruling." Id.

 The Court's determinations that the state courts reasonably adjudicated some of 

Davis's claims, and that other claims are procedurally defaulted, are not fairly debatable. 

The Court therefore declines to issue a certificate of appealability. 

Conclusion

 For the foregoing reasons, the Court denies Davis's petition for a writ of habeas 

corpus [docket nos. 12 & 13] and directs the Clerk to enter judgment in favor of the 
33

respondent. The Court also declines to issue a certificate of appealability. Davis's 

counsel is directed to provide a copy of this decision to his client promptly and to certify 

to the Court that he has done so. 

 

 MATTHEW F. KENNELLY 

 United States District Judge 

Date: February 13, 2014