UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Lorenzo Davis filed a petition for a writ of habeas corpus challenging his conviction for 

first-degree murder. See 28 U.S.C. § 2254. He raises eight bases for relief, including numerous 

claims of ineffective assistance of trial and appellate counsel. For the reasons set forth below, the 

Court denies the petition and denies a certificate of appealability. 

I. 

A. 

Davis’ conviction stems from the March 2007 stabbing of Alwin May. The Michigan Court 

of Appeals described the underlying facts, which are presumed to be correct on habeas review, see 

28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009). 

Davis and May lived in the same boarding house and got into an argument over the volume 

of the living-room television. People v. Davis, No. 302401, 2012 WL 1314138, at *1 (Mich. Ct. 

App. Apr. 17, 2012). In the heat of argument, May punched Davis in the face hard enough to break 

the skin. Id. May eventually laid back down in front of the television while Davis left and sat on 

the stairs. Id. Davis sat on the stairs for approximately 15 minutes before going into the kitchen, 

LORENZO DAVIS, 

 Petitioner, 

 

v. 

 

DUNCAN MACLAREN, 

 Respondent. 

Case No. 15-11996 

Honorable Laurie J. Michelson 

Magistrate Judge David R. Grand 

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 

AND DENYING CERTIFICATE OF APPEALABILITY 
2 

grabbing a knife out of another resident’s hand, and returning to the living room to stab May in 

the chest, killing him. Id. 

Davis was evaluated and found incompetent to stand trial. (R. 8-13, PageID.606–610.) At 

the competency hearing, Davis’ counsel requested, and the trial court ordered, that Davis be 

evaluated for his ability to understand the criminal nature of the actions he took. (Id.; R. 8-1, 

PageID.146.) Four days after the hearing, the court also entered an order for criminal responsibility 

by an independent examiner. (R. 8-19, PageID.1264–65; R. 8-19, PageID.1263.) At the final 

conference, Davis’ counsel confirmed that he had a psychologist review the file to assess Davis’ 

criminal responsibility. (R. 8-6, PageID.223–24.) Almost two months after the competency 

hearing, Davis’ competency was deemed restored. (R. 8-5, PageID.218.) 

Davis’ trial was held on March 27 and 28, 2008. (R. 8-9, PageID.239–90.) The jury was 

instructed on first-degree and second-degree murder; and, after a short deliberation, convicted 

Davis of first-degree murder. (R. 8-10, PageID.488–92.) He was sentenced to life in prison. (R. 8-

10, PageID.492; R. 8-11, PageID.505.) 

B. 

After his conviction, Davis filed a motion for a new trial, asserting that he received 

ineffective assistance of counsel at trial. (R. 8-13, PageID.612–29.) Specifically, he asserted that 

his trial counsel failed to request a jury instruction on voluntary manslaughter. (Id.) And Davis 

said his lawyer presented a defense—voluntary intoxication—that is not recognized under 

Michigan law, instead of presenting the defense of provocation. (Id.) Davis said his lawyer should 

have supported the provocation defense by establishing that Mays was under the influence of drugs 

at the time of his death. (Id.) He also filed a motion for remand for an evidentiary hearing pursuant 

to People v. Ginther, 212 N.W.2d 922 (Mich. 1973). (R. 8-15, PageID.684–708.) The Michigan 
3 

Court of Appeals granted the motion to remand. (R. 8-13, PageID.632.) The trial court held a 

Ginther hearing (R. 8-12, PageID.509–51) and concluded that Davis was not entitled to a new trial 

(R. 8-13, PageID.630, 634–38). 

 Davis appealed the denial of a new trial. (R. 8-15, PageID.653–80.) The Michigan Court 

of Appeals affirmed the lower court’s decision. (R. 8-13, PageID.601–04.) Davis then filed an 

application for leave to appeal in the Michigan Supreme Court, which the court denied. (R. 8-18, 

PageID.1254.) 

 The following year, Davis filed a motion for relief from judgment. (R. 8-13, PageID.555–

638.) He raised the following seven claims: 

i. Trial counsel was ineffective for failing to pursue a temporary insanity defense; 

ii. Trial counsel was ineffective for failing to pursue a post-traumatic stress disorder 

(PTSD) defense; 

iii. Appellate counsel was ineffective for failing to challenge trial counsel’s assistance 

based upon his failure to raise temporary insanity and PTSD defenses; 

iv. The court would err by making a decision without first holding an evidentiary hearing 

on the above issues; 

v. The trial court ignored Davis’ repeated remarks that he did not trust his counsel, thus 

violating his rights; 

vi. The trial court failed to follow the Michigan Court of Appeals’ Order on remand and 

erred in finding that Davis’ trial counsel’s performance did not amount to ineffective 

assistance of counsel; and 

vii. The cumulative effect of the errors amount to a due process violation. 

The trial court denied the motion for relief from judgment. (R. 8-14, PageID.639–41.) Davis sought 

leave to appeal the denial in the Michigan Court of Appeals, which was denied. (R. 8-17, 

PageID.1005.) The Michigan Supreme Court likewise denied Davis’ application for leave to 

appeal. (R. 8-18, PageID.1153.) 
4 

Davis then filed a petition for habeas relief in federal court. (R. 1.) His petition raises eight 

grounds for relief: 

i. Trial counsel was ineffective for presenting an unrecognized legal defense, failing 

to request an instruction on voluntary manslaughter, and failing to present the 

defense of provocation; 

ii. Trial counsel was ineffective for failing to pursue a temporary insanity defense; 

iii. Trial counsel was ineffective for failing to present a defense of PTSD; 

iv. Appellate counsel was ineffective for failing to challenge trial counsel’s assistance 

based upon his failure to raise temporary insanity and PTSD defenses; 

v. Trial court erred in not holding an additional evidentiary hearing on additional 

claims of ineffective assistance; 

vi. Trial court erred in refusing to consider Davis’ alleged conflicts with his appointed 

counsel; 

 

vii. Trial court failed to follow the Michigan Court of Appeals’ Order on remand and 

erred in finding that Davis’ trial counsel’s performance did not amount to 

ineffective assistance of counsel; 

viii. The cumulative effect of the errors amount to a due process violation. 

For the reasons that follow, the Court will deny Davis’ petition. 

II. 

The Antiterrorism and Effective Death Penalty Act (AEDPA) (and 28 U.S.C. § 2254 in 

particular) “confirm[s] that state courts are the principal forum for asserting constitutional 

challenges to state convictions.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also Cullen 

v. Pinholster, 563 U.S. 170, 182 (2011). If a claim was “adjudicated on the merits in State court 

proceedings,” this Court cannot grant habeas corpus relief on the basis of that claim “unless the 

adjudication of the claim . . . resulted in a decision” (1) “that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as determined by the Supreme Court 
5 

of the United States” or (2) “that was based on an unreasonable determination of the facts in light 

of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d). But if the state 

courts did not adjudicate a claim “on the merits,” this “‘AEDPA deference’ does not apply and 

[this Court] will review the claim de novo.” Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014). 

A state-court decision is “contrary to” clearly established Supreme Court precedent if it 

“applies a rule that contradicts the governing law set forth in [Supreme Court] cases” or if it 

“confronts a set of facts that are materially indistinguishable from a decision of [the Supreme 

Court] and nevertheless arrives at a result different from [its] precedent.” Early v. Packer, 537 U.S. 

3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). 

 A state-court decision is an unreasonable application of clearly established Supreme Court 

law when it “applies [Supreme Court] precedents to the facts in an objectively unreasonable 

manner.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citations omitted); see Mitchell v. Mason, 

325 F.3d 732, 738 (6th Cir. 2003) (“[A] federal habeas court may not issue the writ simply because 

that court concludes in its independent judgment that the relevant state-court decision applied 

clearly established federal law erroneously or incorrectly. Rather, that application must also be 

unreasonable.” (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000))). This is a “difficult to meet 

. . . and highly deferential standard . . . [that] demands that state-court decisions be given the benefit 

of the doubt.” Pinholster, 563 U.S. at 181 (internal citations and quotation marks omitted). 

III. 

A. 

The Court will begin with Davis’ first claim for habeas relief, which is really several claims 

in one: trial counsel’s failure to request a jury instruction on voluntary manslaughter, and trial 

counsel’s decision to present a legally-unrecognized defense while failing to present a defense of 
6 

provocation and establishing that Mays was under the influence of drugs at the time of his death. 

(R. 1, PageID.2–3.) 

The Court must first determine whether this claim was adjudicated on the merits, thus 

warranting AEDPA deference. See 28 U.S.C. § 2254(d). The Michigan Supreme Court order 

denied leave for appeal “because [the court is] not persuaded that the questions presented should 

be reviewed by this Court.” This has not been found to be an adjudication on the merits. See Hynes 

v. Birkett, 526 F. App’x 515, 519 (6th Cir. 2013). But the Michigan Court of Appeals did adjudicate 

the claim on the merits and did so in a reasoned opinion (on direct appeal). The Court will therefore 

apply AEDPA deference to this first issue. See 28 U.S.C. § 2254(d). 

Success on an ineffective-assistance-of-counsel claim requires Davis to point to evidence 

of his trial counsel’s deficient performance and then explain how that deficient performance 

prejudiced his legal defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel’s 

performance is deficient where it falls below an objectively reasonable standard. Id. at 688. Since 

§ 2254(d) applies to these claims, this already deferential deficient-performance test becomes 

“doubly so.” See Harrington, 562 U.S. at 101. The prejudice element requires the defendant to 

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 Michigan Court of Appeals agreed with the trial court’s reasoning that, even if Davis’ 

counsel’s representation “slightly fell beneath the reasonableness standard” because the trial court 

would have given a voluntary manslaughter instruction if requested, Davis suffered no prejudice 

as a result. People v. Davis, No. 302401, 2012 WL 1314138, at *1 (Mich. Ct. App. April 17, 2012). 

In support of its conclusion, the Michigan Court of Appeals cited People v. Raper, 563 N.W.2d 
7 

709, 713 (Mich. 1997), for the proposition that “‘a jury’s rejection of second-degree murder in 

favor of first-degree murder reflect[s] an unwillingness to convict on a lesser included offense such 

as manslaughter,’ and therefore counsel’s failure to request a manslaughter instruction did not 

cause prejudice.” Id. 

The Court cannot find that the Michigan Court of Appeals unreasonably applied Strickland 

or other Supreme Court precedent. As the Michigan Court of Appeals explained, a first-degree 

murder conviction requires a finding beyond a reasonable doubt that the defendant acted 

deliberately and with premeditation. See Mich. Comp. Laws § 750.316(1)(a). The jury here was 

also instructed on second-degree murder, which does not require premeditation, People v. Goecke, 

579 N.W.2d 868, 878 (Mich. 1998), and yet, found Davis guilty of first-degree murder. In contrast, 

voluntary manslaughter requires a defendant to kill in the heat of passion. See People v. Pouncey, 

471 N.W.2d 346, 349–50 (Mich. 1991). The time between the provocation that caused the response 

and the killing cannot be long enough to allow “a reasonable person” to “control his passions.” Id. 

And the jury’s verdict that Davis acted “deliberately and with premeditation” means there is not a 

reasonable probability that they would have found Davis killed May in the heat of passion. See 

People v. Younger, 158 N.W.2d 493, 495 (Mich. 1968) (“Murder in the first degree requires proof 

of premeditation, deliberation and malice. Manslaughter, on the other hand, is a homicide ... which 

is the result of such provocation that an ordinary man would kill in the heat of passion before a 

reasonable time had elapsed for the passions to subside and reason to resume its control”). The 

Court cannot find that, had the jury also been instructed on voluntary manslaughter, there is a 

reasonable probability that they would have convicted Davis of that instead. The state court did 

not unreasonably apply Strickland in so finding. 
8 

The Court of Appeals also rejected Davis’ claim that counsel was ineffective for presenting 

the defense of voluntary intoxication and not a defense of provocation, and failing to establish that 

Mays was under the influence of drugs at the time of his death. Davis, 2012 WL 1314138 at *3. 

As explained by the Court of Appeals, Davis’ counsel recognized that voluntary intoxication is not 

a defense under Michigan law to first or second degree murder. He explained at the Ginther hearing 

that the defense was “all [he] had,” describing it as a “[H]ail Mary type defense,” and “might lead 

the jury to conclude that the defendant did not have the requisite state of mind for first degree 

murder despite the instruction.” Id. 

The appellate court found that counsel’s failure to question the Assistant Wayne County 

Medical Examiner regarding the presence of drugs in May’s body “was a matter of reasonable trial 

strategy.” Davis, 2012 WL 1314138 at *3. Davis presents no argument for why this decision 

involved an unreasonable application of Strickland. 

The appellate court, though, did not address whether counsel’s decision to present a defense 

of voluntary intoxication and not a defense of provocation was deficient performance. But even 

assuming it was, the court found no prejudice. This is entitled to AEDPA deference. See Holland 

v. Rivard, 800 F.3d 224, 237 (6th Cir. 2015); see also Phillips v. Bradshaw, 607 F.3d 199, 216 

(6th Cir. 2010). “Given the overwhelming evidence in the case, the nature of the provocation, and 

the time between the provocation and the killing,” the state court did not believe that a provocation 

defense and a request for a manslaughter instruction would have led to a different outcome. Davis, 

2012 WL 1314138 at *3. This was not an unreasonable application of Strickland. 

As discussed above, after being hit in the face, Davis went and sat on the steps for 15 

minutes. The jury determined that Davis had acted deliberately and with premeditation. Davis 

cannot show a “reasonable probability” that, had his counsel pursued a provocation defense, and 
9 

even established that May was under the influence of drugs at the time, the jury would have instead 

interpreted the manner of the altercation and Davis’ cooling off period as consistent with an act of 

passion. See Strickland, 466 U.S. at 694. Accordingly, Davis is not entitled to relief on this claim. 

B. 

The Court next addresses claims two through eight that were raised on Davis’ collateral 

appeal. 

1. 

The State first asserts that claims six and seven were procedurally defaulted. (R. 7, 

PageID.83.) 

“When a state prisoner procedurally defaults a claim for habeas relief, meaning the prisoner 

lost the claim in state court by failing to raise it at the correct time, [this Court] defer[s] to the 

state’s procedural ruling and refuse[s] to consider the claim on the merits.” Peoples v. Lafler, 734 

F.3d 503, 510 (6th Cir. 2013) (citing Wainwright v. Sykes, 433 U.S. 72, 86–87 (1977)). A claim is 

procedurally defaulted where: 

(1) the petitioner fails to comply with a state procedural rule; (2) the state courts 

enforce the rule; (3) the state procedural rule is an adequate and independent state 

ground for denying review of a federal constitutional claim; and (4) the petitioner 

cannot show cause and prejudice excusing the default. 

Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010). 

To enforce a procedural bar, an order must “unambiguously” rely on a procedural rule. See 

Peoples, 734 F.3d at 512 (citing Guilmette, 624 F.3d at 291). The last explained state court 

judgment should be used to make this determination. Ylst v. Nunnemaker, 501 U.S. 797, 803–05 

(1991). If the last state judgment is a silent or unexplained denial, it is presumed that the last 

reviewing court relied upon the last reasoned opinion. Id. 
10 

The Michigan trial court provided a reasoned decision on Davis’ motion for relief from 

judgment (R. 8-14, PageID.639-41), while the Michigan Court of Appeals and Michigan Supreme 

Court did not (R. 8-17, PageID.1005; R. 8-18, PageID.1153). So the Court will review the trial 

court opinion. See Wilson v. Sellers, 138 S. Ct.1188, 1193–94 (2018). In that opinion, the court 

found that Davis’ fifth, sixth, seventh and eighth claims were procedurally barred pursuant to 

Michigan Court Rule 6.508(D)(3). (R. 8-14, PageID.641.) Again, in response to Davis’ habeas 

petition, the State argues that claims six and seven are procedurally defaulted.1

 (R. 7, PageID.83.) 

The Court agrees as to claim six. The state court decision is clear that it found this claim 

barred pursuant to Michigan Court Rule 6.508(D)(3). And reliance upon Michigan Court Rule 

6.508(D)(3) is an “independent and adequate state ground sufficient for procedural default.” See, 

e.g., McFarland v. Yukins, 356 F.3d 688, 698 (6th Cir. 2004). 

The Court must then determine whether Davis can show cause and prejudice to excuse the 

default of claim six. See Guilmette, 624 F.3d at 290. Davis simply argues that this issue was not 

raised by his appellate counsel. (R. 1, PageID.28.) “[I]n certain circumstances counsel’s 

ineffectiveness in failing properly to preserve the claim for review in state court will suffice.” 

Edwards v. Carpenter, 529 U.S. 446, 451 (2000). But “ineffective assistance adequate to establish 

cause for the procedural default of some other constitutional claim is itself an independent 

constitutional claim” that must first be raised and exhausted in state court. Id. at 451-52. But Davis 

never raised a claim in state court that his appellate counsel was constitutionally ineffective by 

failing to raise this claim on direct appeal. So he cannot show cause. 

 

1

 The State chose not to raise procedural default for claims five and eight. While the Court 

may raise the issue sua sponte even when waived by the State, Lovins v. Parker, 712 F.3d 283, 

295 (6th Cir. 2013), the Court chooses not to do so here because Davis did not have the opportunity 

to respond to a procedural default challenge to these claims in the briefing and because the claims 

are clearly meritless. See Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005). 
11 

Nor does the narrow exception for “miscarriage of justice” apply here. See Murray v. 

Carrier, 477 U.S. 478, 496 (1986). That would require Davis to “demonstrate that the alleged 

constitutional error has resulted in the conviction of one who is actually innocent of the underlying 

offense.” Dretke v. Haley, 541 U.S. 386, 388 (2004). Actual innocence “means factual innocence, 

not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614 (1998). And to show 

innocence, “the petitioner must show that it is more likely than not that no reasonable juror would 

have convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). 

Davis has not come forward with any new evidence to establish that no reasonable jury would 

have convicted him of murdering Mays. This extraordinary exception does not apply on this 

record, and claim six will be deemed procedurally defaulted. 

 While not entirely clear and likely a typographical error, it appears that claim seven was 

denied by the state court pursuant to both Michigan Court Rule 6.508(D)(3) and (D)(2). (R. 8-14, 

PageID. 640–641.) Therefore, the basis for denying this claim was ambiguous. See Peoples, 734 

F.3d at 510–12 (finding ambiguous a state court order that in one paragraph invokes Michigan 

Court Rule 6.508(D)(2) to deny a claim, but in a later paragraph invokes Michigan Court Rule 

6.508(D)(3) to deny the same claim). “Rule 6.508(D)(3) is the state procedural default rule 

requiring petitioners to show cause and prejudice before raising a claim that could have been raised 

on direct appeal. Rule 6.508(D)(2) is a ‘relitigation’ rule under which the state court will not grant 

relief if the petitioner alleges claims that were decided against the petitioner on a prior appeal.” Id. 

Rule 6.508(D)(2) does not bar habeas review of Davis’ claim on the merits. See Hicks v. Straub, 

377 F.3d 538, 558 n. 17 (6th Cir. 2004). Since both 6.508(D)(3) and (D)(2) were cited by the trial 

court to dismiss Davis’ seventh claim, this Court cannot find that the claim was procedurally 

defaulted. See Peoples, 734 F.3d at 512. 
12 

Since Davis did not raise this claim on his direct appeal, there is no underlying state court 

opinion on the merits to review. So the Court will review the claim de novo. See Bies, 775 F.3d at 

395. 

Davis’ seventh claim for relief is that the trial court failed to follow the Michigan Court of 

Appeals’ order on remand and erred in finding that his trial counsel’s performance did not amount 

to ineffective assistance of counsel. Davis contends that the Court of Appeals required the trial 

court to make specific findings as to: 1) whether counsel’s choice to present a defense of 

intoxication rendered him ineffective; 2) whether counsel was ineffective for failing to request an 

instruction of voluntary manslaughter; 3) whether counsel’s failure to question or introduce the 

positive results of May’s drug test impacted the case; 4) whether counsel was biased against Davis 

such that he should have been replaced; and 5) whether counsel committed a series of actions or 

omissions that violated Davis’ right to effective assistance of counsel. (R. 1, PageID.25.) But the 

remand order required no such thing. (R. 8-13, PageID.632.) The remainder of Davis’ argument 

seems to be merely a disagreement with the trial court’s Strickland analysis, which is encompassed 

by Davis’ first claim. 

2. 

Because Davis’ fifth and eighth claims were procedurally defaulted by the state court, they 

were not adjudicated on the merits. As the State is not relying on procedural default, the Court will 

review these claims de novo. See Bies, 775 F.3d at 395. 

Davis’ fifth claim is that the trial court improperly denied him an evidentiary hearing on 

his various ineffective-assistance-of-counsel claims in his motion for relief from judgment. But 

“the Sixth Circuit has consistently held that errors in post-conviction proceedings are outside the 

scope of federal habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007) (citing 
13 

Kirby v. Dutton, 794 F.2d 245, 246-47 (6th Cir.1986); Roe v. Baker, 316 F.3d 557, 571 (6th 

Cir.2002)). 

Davis’ eighth claim is that the cumulative effect of the errors he raised amounted to a due 

process violation. “The Supreme Court has not held that distinct constitutional claims can be 

cumulated to grant habeas relief.” Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002), amended 

on other grounds, 307 F.3d 459 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003). And “post–

AEDPA, not even constitutional errors that would not individually support habeas relief can be 

cumulated to support habeas relief.” Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir. 2010) 

(quoting Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)). 

Thus, habeas relief is not warranted on Davis’ fifth and eighth claims. 

3. 

In claims two and three, Davis faults his trial counsel for falling to investigate and present 

defenses based on temporary insanity and PTSD. 

The Michigan trial court adjudicated these claims on the merits. The court found that these 

claims failed as “the record reveals that upon a thorough review of the proceedings, trial counsel’s 

choice of available defenses was a matter of trial strategy.” (R. 8-14, PageID.640.) 

Since § 2254(d) applies to these claims, and the state court found that trial counsel did not 

act deficiently, the already deferential deficient-performance test becomes “doubly so.” See 

Harrington, 562 U.S. at 101. According to Strickland,

[S]trategic choices made after thorough investigation of law and facts relevant to 

plausible options are virtually unchallengeable; and strategic choices made after 

less than complete investigation are reasonable precisely to the extent that 

reasonable professional judgments support the limitations on investigation. In other 

words, counsel has a duty to make reasonable investigations or to make a 

reasonable decision that makes particular investigations unnecessary. In any 

ineffectiveness case, a particular decision not to investigate must be directly 
14 

assessed for reasonableness in all the circumstances, applying a heavy measure of 

deference to counsel’s judgments. 

Id. at 690–91. “In assessing the reasonableness of an attorney’s investigation . . . a court must 

consider not only the quantum of evidence already known to counsel, but also whether the known 

evidence would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. 510, 

527 (2003). 

Here, Davis cannot show counsel failed to reasonably investigate his mental health, both 

for temporary insanity and PTSD. At the second competency hearing, the court made note of 

defense counsel’s request to “have the defendant evaluated for criminal responsibility,” and 

ordered that such a hearing should occur within sixty days. (R. 8-5.) Indeed, the docket suggests 

that the court ordered two separate reports on Davis’ criminal responsibility. (R. 8-1, PageID.146; 

R. 8-19, PageID.1263, 1264–65.) Thus, it appears that Davis’ counsel did adequately investigate 

and explore a possible psychological defense. 

Nor has Davis explained why a reasonable attorney would have honed in on a possible 

PTSD diagnosis. Davis has never been diagnosed with PTSD and says only that he thinks he might 

have it based on childhood trauma. Without any reason to believe that his attorney should have 

gone further in his investigation into Davis’ mental health, and knowing that the court ordered at 

least one psychological evaluation of Davis’ criminal responsibility, the Court cannot find that his 

counsel conducted an unreasonable investigation into Davis’ mental state at the time of the crime. 

 Davis also argues that his counsel had “no justifiable reason for failing to present this 

potentially meritorious insanity defense.” (R. 1, PageID.11.) Davis alleges that a “mental health 

professional from the forensic center opined that [he] was criminally insane at the time he 

committed the offense.” (Id.) In his brief, Davis cites to the transcript of his competency hearing 

as support for this statement. (R. 8-13, PageID.606–10.) 
15 

As the state court reasonably found, Davis cannot overcome the presumption that his 

attorney’s decision was strategic. Strickland, 466 U.S. at 689 (internal quotations omitted). For 

one, the transcript does not support this claim. True, at the competency hearing, it was noted that 

a report from the Forensic Center indicated Davis was not competent to stand trial. (R. 8-13, 

PageID.608.) But the legal standards for competency and insanity are different. Compare 

M.C.L. § 330.2020, with M.C.L. § 768.21a. And Davis presented no evidence that would suggest 

that he was temporarily insane at the time of the offense. His competency was also ultimately 

restored. (R. 8-5, PageID.218.) So the state court did not unreasonably find that trial counsel’s 

decisions were reasonable. 

Davis’ second and third claims fail. 

4. 

This leaves Davis’ fourth claim for habeas corpus relief, that he received ineffective 

assistance of appellate counsel because she failed to investigate the temporary insanity defense 

and PTSD defense and present these defenses at the evidentiary hearing. 

Again, since § 2254(d) applies to this claim (R. 8-14, PageID.639–41), the Court must 

apply the double-deference standard. See Harrington, 562 U.S. at 101. 

Davis cannot surmount this high bar. The state court found that Davis failed to overcome 

the presumption that appellate counsel’s decisions constituted sound strategy, especially given that 

appellate counsel does not need to raise every conceivable issue on appeal and can exercise her 

reasonable professional judgment in selecting issues that are more likely to prevail. (R. 8-14, 

PageID.640–41 (citing People v. Reed, 535 N.W.2d 496 (Mich. Ct. App. 1995) relying on Jones 

v. Barnes, 463 U.S. 745 (1983)).) The trial court correctly applied the Supreme Court holding in 

Barnes that appellate counsel can select among claims and defenses to maximize the likelihood of 
16 

success on appeal. 463 U.S. at 754. Here, appellate counsel decided that the better claims to raise 

on appeal were trial counsel’s raising a non-recognized legal defense, failing to request an 

instruction on voluntary manslaughter, and failing to raise the defense of provocation. The Court 

cannot deem this prioritization deficient or find that the Michigan Court of Appeals was 

unreasonable to think otherwise. 

IV. 

For the reasons stated above, the petition for a writ of habeas corpus and a certificate of 

appealability are DENIED and the matter is DISMISSED. Davis has not shown that reasonable 

jurists would debate whether the petition should have been resolved in a different manner. Slack 

v. McDaniel, 529 U.S. 473, 484 (2000) 

SO ORDERED. 

Dated: September 12, 2018 s/Laurie J. Michelson 

 U. S. DISTRICT JUDGE 

CERTIFICATE OF SERVICE 

The undersigned certifies that a copy of the foregoing document was served on the 

attorneys and/or parties of record by electronic means or U.S. Mail on September 12, 2018. 

+ 

s/Teresa McGovern 

Case Manager Generalist