UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENNETH PATTERSON,

Petitioner,

CASE NO. 2:08-CV-14399 

v. HONORABLE ARTHUR J. TARNOW

BARRY DAVIS,

Respondent.

_________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner Kenneth

Patterson (“Petitioner”) was convicted of first-degree murder, MICH. COMP. LAWS

§ 750.316(1)(a), and receiving stolen property, MICH. COMP. LAWS § 750.535(3)(a),

following a jury trial in the Macomb County Circuit Court. He was sentenced to

concurrent terms of life imprisonment without the possibility of parole and one to five

years imprisonment in 2005. In his original and supplemental petition, he raises claims

concerning the sufficiency of the evidence, the effectiveness of trial counsel relative to a

jury instruction, the admission of evidence from a non-testifying witness and the nonharmlessness of that alleged error, the effectiveness of appellate counsel, the effectiveness

1

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 1 of 35 Pg ID 1096
Patterson v. Davis

Case No. 2:08-CV-14399

Page 2 of 35

of trial counsel relative to not calling a police officer and not introducing a police report

concerning the victim’s behavior and not properly objecting to the trial court’s exclusion

of his videotaped interrogation, and the trial court’s exclusion of his videotaped

interrogation. For the reasons set forth herein, the Court denies the petition for a writ of

habeas corpus. The Court also denies a certificate of appealability and denies leave to

proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner’s convictions arise from a 2004 incident in which he beat his exgirlfriend, Suzanne Williams, to death, dumped her body in a drainage ditch, and was

arrested a few days later while driving her car. At trial, witnesses testified that the couple

dated and lived together for a period of time, but had a tumultuous relationship. At one

point, the victim obtained a personal protection order against Petitioner, which she later

terminated. The victim believed that Petitioner was stalking her and did not want her to

see other men.

The victim’s co-workers testified that they last saw her at work, a Harley Davidson

store, on Friday, December 3, 2004. She was scheduled to work the next day, but did not

appear. The victim’s friend, Jerald King, testified that he was supposed to meet her for

dinner on December 3, 2004, but she did not show up. The witnesses called the victim,

2

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 2 of 35 Pg ID 1097
Patterson v. Davis

Case No. 2:08-CV-14399

Page 3 of 35

but she did not answer. They drove by her apartment and noticed that her car was

missing. The victim’s co-workers did not know her to carry a weapon.

Petitioner’s mother testified that she saw the victim’s car at Petitioner’s trailer

home on December 3, 2004. When she saw Petitioner two days later, he acted normally. 

Petitioner and the victim had a relationship and he often used the victim’s car.

Petitioner’s co-workers testified that they saw Petitioner on the weekend in

question and did not notice anything out of the ordinary in his behavior. One co-worker

drove Petitioner home from work on December 4, 2004 and Petitioner seemed tired and

slept part of the way. Another co-worker saw him at a hockey game that night.

A man named Keith Thompson found the victim’s body in a ditch near some old

stores near 14 Mile Road and VanDyke in Sterling Heights on December 5, 2004. 

Thompson testified that he was walking in the area when he saw a woman in a bra and

underwear lying in the ditch and called the police. When police arrived, they noticed

blood near a parking lot curb and on dried leaves near an embankment. They also found a

Harley Davidson earring in the parking lot.

Later that same day, one of the victim’s co-workers learned that a woman

matching the victim’s description had been found. She called the police and gave them a

description. She told them that she had been unable to contact the victim and that the

victim’s car was missing. The police learned that the victim’s car had OnStar and were

3

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 3 of 35 Pg ID 1098
Patterson v. Davis

Case No. 2:08-CV-14399

Page 4 of 35

able to track its location to Allen Park. They conducted a traffic stop of the car and found

Petitioner to be the driver. Petitioner told them it was his girlfriend’s car. He was

subsequently arrested.

Police officers searched Petitioner’s trailer and truck. An officer testified that the

police found blood stains on the porch, the concrete walkway, the hallway wall, a door

and door handle, the master bedroom door, the master bedroom wall, blinds, window, and

bed, and the bathroom vanity, as well as in Petitioner’s truck and the victim’s car. Some

samples taken from Petitioner’s trailer matched the victim’s DNA. Samples from the bed

matched Petitioner and the victim.

The medical examiner testified that the victim died from blunt force head trauma

and suffered multiple injuries. She had lacerations down to the bone from two impacts to

the back of her head, one of which would have been incapacitating. She had a fractured

skull and bleeding on the brain. She had a bruised forehead from a separate impact,

which may have occurred from a fall to the ground. She also had bruised, cut lips and a

chipped front tooth consistent with a punch to the face, a bruised knee consistent with a

fall, and a defensive wound on her left arm. A baseball bat could have inflicted the

injuries. The victim died before her body was left in the ditch.

 Petitioner testified in his own defense at trial. He admitted killing victim, but

claimed self-defense. According to Petitioner, he and the victim argued on Wednesday,

4

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 4 of 35 Pg ID 1099
Patterson v. Davis

Case No. 2:08-CV-14399

Page 5 of 35

December 1, 2004. She came to his trailer around 6:00 p.m. on December 3, 2004. They

drank and talked. After they went to the bedroom to lay down, the victim accused him of

giving her crabs. He left the bedroom and went into the kitchen to clean up and the

victim went into the living room to look at CDs. Petitioner then told the victim that their

relationship was over, but she disagreed. Petitioner continued to clean and told her to

leave. When he walked over to grab her, she attacked him. He wanted to leave, but she

hit him in the back of the head. He turned around and hit her in the mouth. The victim

then threatened to blow him away and reached into her pocket. Petitioner was against the

door and grabbed a nearby bat. When the victim came toward him, he hit her on the head

with the bat. The victim fell. Petitioner saw that she had a knife in her hand and she tried

to jab him. He picked up the bat and hit her again. She fell down. Petitioner saw blood

and asked if she was alright. He got a sheet from the middle bedroom and put it on her

head. He got some change and went to a pay phone. It was in use so he returned to the

trailer. He pulled the victim to the back bedroom to make her comfortable. Her shirt

ripped when he tried to pick her up. He went to get ice and when he returned, he noticed

that she was not breathing. Petitioner testified that he sat in the living room for 45

minutes. When he went back into the bedroom, the victim was purple. He returned to the

living room to decide what to do.

5

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 5 of 35 Pg ID 1100
Patterson v. Davis

Case No. 2:08-CV-14399

Page 6 of 35

Petitioner cleaned his head with a washcloth. He then drove the victim’s car to the

Native American Center near his home and walked back to the trailer. He moved the

victim onto a blanket. Her jeans came down, but she was too heavy to move to fix them,

so he pulled them off. He put the victim in the flatbed of his truck and drove to the 14

Mile and VanDyke near a closed business. He removed the victim from the truck, but

slipped on the hill. The victim’s body rolled down the embankment and Petitioner heard

a splash. He picked up the blanket, got into his truck, and drove home. He thought about

calling the police, but was afraid. He cleaned up the blood and went to sleep. Petitioner

never found a gun. He said he found a knife, but it was not the knife the victim used to

strike at him. He drove the victim’s car to work on Saturday, December 4, 2004, but a

co-worker drove him home. He took a nap, then went to a hockey game. On Sunday,

December 5, 2004, his mother came by and he used her cell phone to try to find an

attorney, but was unsuccessful. On Monday, December 6, 2004, he drove his truck to

work and where he left the victim’s car. He switched cars and was on his way to visit

friends when he was stopped by the police and arrested.

At the close of trial, the trial court instructed the jury about the elements of the

charged offenses, the lesser offenses of second-degree murder and manslaughter, the

concepts of premeditation and deliberation, lawful self-defense, and other pertinent

matters. There were no objections to the instructions as given. Following deliberations,

6

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 6 of 35 Pg ID 1101
Patterson v. Davis

Case No. 2:08-CV-14399

Page 7 of 35

the jury convicted Petitioner of first-degree murder and receiving stolen property. The

trial court subsequently sentenced him to concurrent terms of life imprisonment without

parole and one to five years imprisonment.

Petitioner filed an appeal of right with the Michigan Court of Appeals raising

claims concerning the sufficiency of the evidence and the effectiveness of trial counsel

relative to the jury instructions. The court denied relief on those claims and affirmed his

convictions. People v. Patterson, No. 266945, 2007 WL 1160179 (Mich. Ct. App. April

19, 2007) (unpublished). Petitioner filed an application for leave to appeal with the

Michigan Supreme Court raising the same claims. The court denied leave to appeal in a

standard order. People v. Patterson, 480 Mich. 890, 738 N.W.2d 722 (Sept. 24, 2007).

Petitioner thereafter filed his initial federal habeas petition, which was dated on

September 23, 2008. He raised claims concerning the sufficiency of the evidence, the

effectiveness of trial counsel relative to a jury instruction, the admission of evidence from

a non-testifying witness, and the non-harmlessness of that alleged error. On March 12,

2009, the Court determined that the petition contained claims which had not been

exhausted in the state courts, held the petition in abeyance so that Petitioner could return

to the state courts to pursue his unexhausted claims, and administratively closed the case. 

The Court conditioned the stay on Petitioner moving to reopen the case within 60 days of

7

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 7 of 35 Pg ID 1102
Patterson v. Davis

Case No. 2:08-CV-14399

Page 8 of 35

the Michigan Supreme Court’s decision, but did not set a time frame for filing a motion

for relief from judgment with the state trial court.

On July 3, 2012, Petitioner filed a motion for relief from judgment in the state trial

court raising claims concerning the effectiveness of appellate counsel, the effectiveness of

trial counsel relative to not calling a police officer and not introducing a police report

concerning the victim’s behavior and not properly objecting to the trial court’s exclusion

of his videotaped interrogation, and the trial court’s exclusion of his videotaped

interrogation. He did not include the unexhausted claims contained in his original habeas

petition. The trial court denied the motion finding that the claims lacked merit and could

have been raised on appeal, and finding that even if Petitioner could establish cause for

the failure to raise the claim on direct appeal, he did not experience actual prejudice. 

People v. Patterson, No. 2005-334-FC (Macomb Co. Cir. Ct. July 27, 2012).

Petitioner filed an application for leave to appeal with the Michigan Court of

Appeals, which was denied “for failure to establish entitlement to relief under MCR

6.508(D).” People v. Patterson, No. 312148 (Mich. Ct. App. June 28, 2013). Petitioner

filed an application for leave to appeal with the Michigan Supreme Court, which was

similarly denied. People v. Patterson, 495 Mich. 900, 839 N.W.2d 218 (Nov. 25, 2013).

Petitioner thereafter moved to reopen this case and filed an amended

(supplemental) habeas petition, which was dated on December 9, 2013. He raises claims

8

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 8 of 35 Pg ID 1103
Patterson v. Davis

Case No. 2:08-CV-14399

Page 9 of 35

concerning the effectiveness of appellate counsel, the effectiveness of trial counsel

relative to not calling a police officer and not introducing a police report concerning the

victim’s behavior and not properly objecting to the trial court’s exclusion of his

videotaped interrogation, and the trial court’s exclusion of his videotaped interrogation. 

Respondent has filed an answer to the petition, as amended, contending that the claims

raised in his supplemental petition are untimely, procedurally defaulted, and/or lack merit,

that the unexhausted claims in his original petition are still unexhausted and now

procedurally defaulted, and that the exhausted claims in his original petition lack merit. 

Petitioner has not filed a reply to that answer.

III. Standard of Review

Federal law imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to

any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim –

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceedings.

28 U.S.C. § 2254(d).

9

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 9 of 35 Pg ID 1104
Patterson v. Davis

Case No. 2:08-CV-14399

Page 10 of 35

“A state court’s decision is ‘contrary to’ . . . clearly established law 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 [that] precedent.’” 

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,

529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 535 U.S. 685, 694 (2002).

“[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas

court to ‘grant the writ if the state court identifies the correct governing legal principle

from [the Supreme] Court but unreasonably applies that principle to the facts of

petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529

U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n order for a federal court find

a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s

decision must have been more than incorrect or erroneous. The state court’s application

must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations

omitted); see also Williams, 529 U.S. at 409. “AEDPA thus imposes a ‘highly deferential

standard for evaluating state-court rulings,’ and ‘demands that state-court decisions be

given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh,

521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

10

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 10 of 35 Pg ID 1105
Patterson v. Davis

Case No. 2:08-CV-14399

Page 11 of 35

The United States Supreme Court has held that “a state court’s determination that a

claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 562

U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

Supreme Court emphasized “that even a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S.

63, 75 (2003)). Pursuant to § 2254(d), “a habeas court must determine what arguments or

theories supported or . . . could have supported, the state court’s decision; and then it must

ask whether it is possible fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id. 

Thus, in order to obtain federal habeas relief, a state prisoner must show that the state

court’s rejection of his claim “was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Id.

Section 2254(d)(1) limits a federal habeas court’s review to a determination of

whether the state court’s decision comports with clearly established federal law as

determined by the Supreme Court at the time the state court renders its decision. 

Williams, 529 U.S. at 412; see also Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)

(noting that the Supreme Court “has held on numerous occasions that it is not ‘an

11

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 11 of 35 Pg ID 1106
Patterson v. Davis

Case No. 2:08-CV-14399

Page 12 of 35

unreasonable application of clearly established Federal law’ for a state court to decline to

apply a specific legal rule that has not been squarely established by this Court”) (quoting

Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam)); Lockyer, 538 U.S. at

71-72. Section 2254(d) “does not require a state court to give reasons before its decision

can be deemed to have been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. 

Furthermore, it “does not require citation of [Supreme Court] cases–indeed, it does not

even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the

result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8

(2002); see also Mitchell, 540 U.S. at 16. While the requirements of “clearly established

law” are to be determined solely by Supreme Court precedent, the decisions of lower

federal courts may be useful in assessing the reasonableness of the state court’s resolution

of an issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007) (citing Williams v.

Bowersox, 340 F.3d 667, 671 (8th Cir. 2003)); Dickens v. Jones, 203 F. Supp. 354, 359

(E.D. Mich. 2002).

Lastly, a state court’s factual determinations are presumed correct on federal

habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with

clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). 

Moreover, habeas review is “limited to the record that was before the state court.” Cullen

v. Pinholster, 563 U.S. 170, 181 (2011).

12

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 12 of 35 Pg ID 1107
Patterson v. Davis

Case No. 2:08-CV-14399

Page 13 of 35

IV. Analysis

A. Timeliness of Claims in the Supplemental Petition

As an initial matter, Respondent contends that the claims in Petitioner’s

supplemental habeas petition concerning the effectiveness of appellate counsel, the

effectiveness of trial counsel relative to not calling a police officer and not introducing a

police report concerning the victim’s behavior and not properly objecting to the trial

court’s exclusion of his videotaped interrogation, and the trial court’s exclusion of his

videotaped interrogation are barred by the one-year statute of limitations applicable to

federal habeas actions.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified

at 28 U.S.C. § 2241 et seq., includes a one-year period of limitations for habeas petitions

brought by prisoners challenging state court judgments. The statute provides:

(1) A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State

court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking such

review;

(B) the date on which the impediment to filing an application created

by State action in violation of the Constitution or laws of the United

States is removed, if the applicant was prevented from filing by such

State action;

13

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 13 of 35 Pg ID 1108
Patterson v. Davis

Case No. 2:08-CV-14399

Page 14 of 35

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable

to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment

or claim is pending shall not be counted toward any period of limitation

under this subsection.

28 U.S.C. § 2244(d). A habeas petition filed outside the proscribed time period must be

dismissed. See Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000) (dismissing case

filed 13 days late); Wilson v. Birkett, 192 F. Supp. 2d 763, 765 (E.D. Mich. 2002).

Petitioner’s convictions became final after the AEDPA’s effective date. The

Michigan Supreme Court denied leave to appeal on direct appeal on September 24, 2007. 

Petitioner’s convictions became final 90 days later, see Jimenez v. Quarterman, 555 U.S.

113, 120 (2009) (a conviction becomes final when "the time for filing a certiorari petition

expires"); Lawrence v. Florida, 549 U.S. 327, 333 (2007); S. Ct. R. 13(1), on or about

December 23, 2007. Accordingly, Petitioner was required to file his federal habeas

petition by December 23, 2008, excluding any time during which a properly filed

application for state post-conviction or collateral review was pending in accordance with

28 U.S.C. § 2244(d)(2).

14

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 14 of 35 Pg ID 1109
Patterson v. Davis

Case No. 2:08-CV-14399

Page 15 of 35

Petitioner dated his original habeas petition on September 23, 2008. At that point,

about nine months (274 days) of the one-year period had expired. The Court then stayed

the proceedings and administratively closed the case on March 12, 2009. While the oneyear period was tolled as to the claims contained in the original petition, it was not tolled

for any claims not so included. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001)

(ruling that federal habeas petition does not statutory toll the one-year period).

Moreover, the claims in the supplemental petition do not relate back to the original

petition. Under Federal Rule of Civil Procedure 15, an amended pleading “relates back”

to the original pleading only if the amended claims are tied to the “same core of operative

facts” alleged in the original petition. Mayle v. Felix, 545 U.S. 644, 664 (2005). “An

amended habeas petition ... does not relate back (and thereby escape AEDPA’s one-year

time limit) when it asserts a new ground for relief supported by facts that differ in both

time and type from those the original pleading set forth.” Id. at 650. An amended

petition does not relate back to an original petition simply because both petitions arise

from the same trial and convictions. Id. As explained by the Supreme Court, if “claims

asserted after the one-year period could be revived simply because they relate to the same

trial, conviction, or sentence as a timely filed claim, AEDPA’s limitation period would

have slim significance.” Id. at 662.

15

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 15 of 35 Pg ID 1110
Patterson v. Davis

Case No. 2:08-CV-14399

Page 16 of 35

In this case, the claims in Petitioner’s supplemental petition, which concern the

effectiveness of appellate counsel, the effectiveness of trial counsel relative to not calling

a police officer and not introducing a police report involving the victim’s behavior and

not properly objecting to the trial court’s exclusion of his videotaped interrogation, and

the trial court’s exclusion of his videotaped interrogation, do not arise from the same set

of operative facts as the claims in Petitioner’s original petition, which concern the

sufficiency of the evidence, the effectiveness of trial counsel relative to a jury instruction,

the admission of evidence from a non-testifying witness, and the non-harmlessness of that

alleged error. Even Petitioner’s supplemental ineffective assistance of trial counsel

claims are based upon different facts and underlying claims of error than his original

ineffective assistance of counsel claim. As such, they do not relate back. See, e.g.,

United States v. Hernandez, 436 F.3d 851, 858 (8th Cir. 2006) (petitioner’s new specific

claims of ineffective assistance did not relate back to his previous unrelated claims);

United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005) (petitioner did not satisfy relation

back standard where new petition asserted ineffective assistance claim based upon a

different type of attorney error than asserted in original petition). Petitioner’s

supplemental claims do not relate back to his original petition.

Because the supplemental claims do not relate back, Petitioner had about three

months (91 days) of the limitations period remaining in which to file his state court

16

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 16 of 35 Pg ID 1111
Patterson v. Davis

Case No. 2:08-CV-14399

Page 17 of 35

motion for relief from judgment, thereby statutorily tolling the one-year period, and then

return to federal court after completing the state court process as to those claims. 

Petitioner, however, did not file his state court motion for relief from judgment until July

3, 2012 - more than three years after the one-year period expired as to the supplemental

claims. A state court post-conviction motion that is filed following the expiration of the

limitations period cannot toll that period because there is no time remaining to be tolled. 

Hargrove v. Brigano, 300 F.3d 717, 718 n. 1 (6th Cir. 2002); Webster v. Moore, 199 F.3d

1256, 1259 (11th Cir. 2000); see also Jurado v. Burt, 337 F.3d 638, 641 (6th Cir. 2003). 

The limitations period is only tolled while a petitioner has a properly filed motion for

post-conviction or collateral review under consideration. 28 U.S.C. § 2244(d)(2); Hudson

v. Jones, 35 F. Supp. 2d 986, 988 (E.D. Mich. 1999). The AEDPA’s limitations period

does not begin to run anew after the completion of state post-conviction proceedings. 

Searcy v. Carter, 246 F.3d 515, 519 (6th Cir. 2001).

Petitioner neither alleges nor establishes that the State created an impediment to

the filing of his supplemental habeas claims or that his claims are based upon newlydiscovered evidence or newly-enacted, retroactively applicable law. His supplemental

claims are therefore untimely under 28 U.S.C. § 2244(d).

The United States Supreme Court has confirmed that the one-year statute of

limitations is not a jurisdictional bar and is subject to equitable tolling. Holland v.

17

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 17 of 35 Pg ID 1112
Patterson v. Davis

Case No. 2:08-CV-14399

Page 18 of 35

Florida, 560 U.S. 631, 645 (2010). The Supreme Court has further explained that a

habeas petitioner is entitled to equitable tolling “only if he shows ‘(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his

way’ and prevented timely filing.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005)); see also Robertson v. Simpson, 624 F.3d 781, 783-84 (6th Cir. 2010). 

A petitioner has the burden of demonstrating entitlement to equitable tolling. Allen v.

Yukins, 366 F.3d 396, 401 (6th Cir. 2004). “Typically, equitable tolling applies only

when a litigant’s failure to meet a legally-mandated deadline unavoidably arose from

circumstances beyond that litigant’s control.” Jurado, 337 F.3d at 642 (quoting

Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560 (6th Cir.

2000)).

Petitioner neither alleges nor establishes that he is entitled to equitable tolling of

the one-year period. While he alleges that appellate counsel was ineffective as cause to

excuse the procedural default in state court, he does not assert a defense to Respondent’s

contention that the habeas petition is untimely. Moreover, any perceived error by

appellate counsel in failing to raise the supplemental issues on direct appeal in the state

courts does not excuse Petitioner’s failure to file his state court motion for relief from

judgment in a timely manner. The fact that Petitioner is untrained in the law, is (or was)

proceeding without a lawyer, or may have been unaware of the statute of limitations does

18

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 18 of 35 Pg ID 1113
Patterson v. Davis

Case No. 2:08-CV-14399

Page 19 of 35

not warrant tolling. See Allen, 366 F.3d at 403 (ignorance of the law does not justify

tolling); Rodriguez v. Elo, 195 F. Supp. 2d 934, 936 (E.D. Mich. 2002) (the law is

“replete with instances which firmly establish that ignorance of the law, despite a

litigant’s pro se status, is no excuse” for failure to follow legal requirements); Holloway v.

Jones, 166 F. Supp. 2d 1185, 1189 (E.D. Mich. 2001) (lack of professional legal

assistance does not justify tolling); Sperling v. White, 30 F. Supp. 2d 1246, 1254 (C.D.

Cal. 1998) (citing cases stating that ignorance of the law, illiteracy, and lack of legal

assistance do not justify tolling). Petitioner also did not act diligently in pursuing his

supplemental claims given that he waited more than three years after the Court stayed his

original habeas proceedings to seek state collateral review. Petitioner fails to show that

he is entitled to equitable tolling under Holland.

Both the United States Supreme Court and the United States Court of Appeals for

the Sixth Circuit have held that a credible claim of actual innocence may equitably toll

the one-year statute of limitations. McQuiggin v. Perkins, _ U.S. _, 133 S. Ct. 1924, 1928

(2013); Souter v. Jones, 395 F.3d 577, 588-90 (6th Cir. 2005). As explained in Souter, to

support a claim of actual innocence, a petitioner in a collateral proceeding “must

demonstrate that, in light of all the evidence, it is more likely than not that no reasonable

juror would have convicted him.” Bousley v. United States, 523 U.S. 614, 623 (1998)

(quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)); see also House v. Bell, 547 U.S.

19

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 19 of 35 Pg ID 1114
Patterson v. Davis

Case No. 2:08-CV-14399

Page 20 of 35

518, 537-39 (2006). A valid claim of actual innocence requires a petitioner “to support

his allegations of constitutional error with new reliable evidence – whether it be

exculpatory scientific evidence, trustworthy eyewitness account, or critical physical

evidence – that was not presented at trial.” Schlup, 513 U.S. at 324. Furthermore, actual

innocence means “factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at

623. In keeping with Supreme Court authority, the Sixth Circuit has recognized that the

actual innocence exception should “remain rare” and “only be applied in the

‘extraordinary case.’” Souter, 395 F.3d at 590 (quoting Schlup, 513 U.S. at 321). 

Petitioner makes no such showing. He is thus not entitled to equitable tolling. His

supplemental claims are untimely and must be dismissed. 

B. Unexhausted Claims in Original Petition

Respondent also contends that the unexhausted claims in Petitioner’s original

habeas petition concerning the admission of evidence from a non-testifying witness and

the non-harmlessness of that alleged error are still unexhausted and are now procedurally

defaulted and subject to dismissal.

A state prisoner filing a habeas petition under 28 U.S.C. §2254 must first exhaust

state court remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state

prisoners must give the state courts one full fair opportunity to resolve any constitutional

issues by invoking one complete round of the State’s established appellate review

20

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 20 of 35 Pg ID 1115
Patterson v. Davis

Case No. 2:08-CV-14399

Page 21 of 35

process); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). To satisfy the exhaustion

requirement, the claims must be “fairly presented” to the state courts, meaning that the

petitioner must have asserted both the factual and legal bases for the claims in the state

courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also Williams v.

Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). The claims must be

presented to the state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d

365, 368 (6th Cir. 1984). For a Michigan prisoner, each issue must be raised before the

Michigan Court of Appeals and the Michigan Supreme Court to satisfy the exhaustion

requirement. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009) (citing Hafley v.

Sowders, 902 F.2d 480, 483 (6th Cir. 1990)). While the exhaustion requirement is not

jurisdictional, a “strong presumption” exists that a prisoner must exhaust available state

court remedies before seeking federal habeas review. Granberry v. Greer, 481 U.S. 129,

131, 134-35 (1987); Wagner, 581 F.3d at 415 (citing Harris v. Lafler, 553 F.3d 1028,

1031 (6th Cir. 2009)). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d

at 160.

In this case, Petitioner admitted that he had not exhausted his initial petition claims

concerning the admission of evidence from a non-testifying witness and the nonharmlessness of that alleged error at the time he filed his initial petition and the record

indicates that he did not raise any of those claims in his subsequent state court motion for

21

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 21 of 35 Pg ID 1116
Patterson v. Davis

Case No. 2:08-CV-14399

Page 22 of 35

relief from judgment and related appeals. Petitioner has thus failed to exhaust the issues

in the state courts. Moreover, he no longer has an available means by which to do so. 

Any attempt to file a second motion for relief from judgment would be futile. Under

Michigan Court Rule 6.502(G)(1), a state criminal defendant is generally permitted to

only file one post-conviction motion for relief from judgment. Gadomski v. Renico, 258

F. App'x 781, 783 (6th Cir. 2007); Hudson v. Martin, 68 F. Supp. 2d 798, 800 (E.D.

Mich. 1999). The unexhausted claims do not fall within the exceptions for filing a second

motion for relief from judgment.

Because Petitioner has not exhausted the claims in the state courts and no longer

has an available remedy by which to do so, the claims are procedurally defaulted. When

a habeas petitioner fails to properly present claims to the state courts and is barred from

pursuing further relief under state law, he has procedurally defaulted those claims for

purposes of federal habeas review. See Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir.

2009) (citing Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002)).

Federal habeas relief is precluded on claims which have not been presented to the

state courts in accordance with the state’s procedural rules. Wainwright v. Sykes, 433

U.S. 72, 85-87 (1977). A state prisoner who fails to comply with a state’s procedural

rules waives the right to federal habeas review absent a showing of cause for

noncompliance and actual prejudice resulting from the alleged constitutional violation, or

22

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 22 of 35 Pg ID 1117
Patterson v. Davis

Case No. 2:08-CV-14399

Page 23 of 35

a showing of a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722,

750-51 (1991); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Gravley v. Mills, 87

F.3d 779, 784-85 (6th Cir. 1996).

Petitioner neither alleges nor establishes cause to excuse this procedural default. 

Any alleged deficiencies by appellate counsel relative to direct appeal are immaterial

because Petitioner could have still properly exhausted these claims on collateral review in

the state courts. A prisoner’s pro se status or lack of knowledge about state court rules

does not constitute cause to excuse a procedural default. Hannah v. Conley, 49 F.3d

1193, 1197 (6th Cir. 1995); Robertson v. Abramajtys, 144 F. Supp. 2d 829, 838 (E.D.

Mich. 2001). A court need not address the issue of prejudice when a petitioner fails to

establish cause to excuse a procedural default. Smith v. Murray, 477 U.S. 527, 533

(1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983).

Petitioner also fails to demonstrate that a fundamental miscarriage of justice has

occurred. The miscarriage of justice exception requires a showing that a constitutional

violation probably resulted in the conviction of one who is actually innocent. Murray v.

Carrier, 477 U.S. 478, 479-80 (1986). As discussed, a credible claim of actual innocence

requires a petitioner to support the allegations of constitutional error with new reliable

evidence that was not presented at trial. Schlup, 513 U.S. at 324. Actual innocence

means factual innocence, not mere legal insufficiency. Bousley, 523 U.S. at 623. 

23

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 23 of 35 Pg ID 1118
Patterson v. Davis

Case No. 2:08-CV-14399

Page 24 of 35

Petitioner makes no such showing. These claims are thus barred by procedural default

and do not warrant habeas relief.

C. Insufficient Evidence Claim

Petitioner asserts that he is entitled to habeas relief because the prosecution

presented insufficient evidence, particularly of premeditation and deliberation, to support

his first-degree murder conviction. Respondent contends that this claim lacks merit.

The Due Process Clause “protects the accused against conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The question on a

sufficiency of the evidence claim is “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). A federal habeas court views this standard through the framework of 28

U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Thus, under the

AEDPA, challenges to the sufficiency of the evidence “must survive two layers of

deference to groups who might view facts differently” than a reviewing court on habeas

review – the factfinder at trial and the state court on appellate review – as long as those

determinations are reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). 

Furthermore, the Jackson standard must be applied “with explicit reference to the

24

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 24 of 35 Pg ID 1119
Patterson v. Davis

Case No. 2:08-CV-14399

Page 25 of 35

substantive elements of the criminal offense as defined by state law.” Brown v. Palmer,

441 F.3d 347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n. 16).

A federal court views this standard through the framework of 28 U.S.C. § 2254(d). 

Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). Under the AEDPA, challenges to

the sufficiency of the evidence “must survive two layers of deference to groups who

might view facts differently” than a reviewing court on habeas review – the factfinder at

trial and the state court on appellate review – as long as those determinations are

reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). “[I]t is the

responsibility of the jury – not the court – to decide what conclusions should be drawn

from the evidence admitted at trial.” Cavazos v. Smith, _ U.S. _, 132 S. Ct. 2, 4 (2011)

(per curiam). “A reviewing court does not re-weigh the evidence or re-determine the

credibility of the witnesses whose demeanor has been observed by the trial court.” 

Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v.

Lonberger, 459 U.S. 422, 434 (1983)). Accordingly, the “mere existence of sufficient

evidence to convict . . . defeats a petitioner’s claim.” Matthews, 319 F.3d at 788-89.

Under Michigan law, first-degree premeditated murder requires proof that the

defendant intentionally killed the victim and that the killing was premeditated and

deliberate. People v. Kelly, 231 Mich. App. 627, 642, 588 N.W.2d 480 (1998); MICH.

COMP. LAWS § 750.316. Premeditation and deliberation may be established by evidence

25

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 25 of 35 Pg ID 1120
Patterson v. Davis

Case No. 2:08-CV-14399

Page 26 of 35

showing: “(1) the prior relationship of the parties; (2) the defendant’s actions before the

killing; (3) the circumstances of the killing itself; and (4) the defendant’s conduct after the

homicide.” People v. Schollaert, 194 Mich. App. 158, 170, 486 N.W.2d 312 (1992); see

also People v. Abraham, 234 Mich. App. 640, 656, 599 N.W.2d 736 (1999).

Some time span between the initial homicidal intent and the ultimate killing is

necessary to establish premeditation and deliberation, People v. Gonzalez, 468 Mich. 636,

641, 664 N.W.2d 159 (2003), but the time required need only be long enough “to allow

the defendant to take a second look.” Schollaert, 194 Mich. App. at 170. An interval of a

few seconds can be sufficient to create a jury question on the issue of premeditation. 

People v. Tilley, 405 Mich. 38, 45, 273 N.W.2d 471 (1979). Premeditation and

deliberation may be inferred from the type of weapon used and the location of the wounds

inflicted. People v. Berry, 198 Mich. App. 123, 128, 497 N.W.2d 202 (1993). Use of a

lethal weapon supports an inference of an intent to kill. People v. Turner, 62 Mich. App.

467, 470, 233 N.W.2d 617 (1975). Direct or circumstantial evidence and reasonable

inferences arising from that evidence may constitute satisfactory proof of the elements of

an offense, People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993), including the

defendant’s intent or state of mind. People v. Dumas, 454 Mich. 390, 398, 563 N.W.2d

31 (1997); see also People v. Nowack, 462 Mich. 392, 402-03, 614 N.W.2d 78 (2000).

26

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 26 of 35 Pg ID 1121
Patterson v. Davis

Case No. 2:08-CV-14399

Page 27 of 35

The Michigan Court of Appeals considered this claim on direct appeal and denied

relief. The court explained:

Defendant argues that there was insufficient evidence of premeditation and

deliberation to allow the jury to find him guilty of first-degree murder. In

reviewing the sufficiency of the evidence, this Court must view the

evidence in the light most favorable to the prosecution to determine whether

a rational trier of fact could find that the essential elements of the crime

were proven beyond a reasonable doubt. People v. Tombs, 472 Mich 446,

459; 697 NW2d 494 (2005).

First-degree murder requires that the defendant killed the victim and that

the killing was “willful, deliberate, and premeditated.” MCL 750.316(1)(a).

Defendant admitted at trial that he killed the victim in his home and

transported her to the site where she was found. “Premeditation, which

requires sufficient time to permit the defendant to take a second look, may

be inferred from the circumstances surrounding the killing.” People v. Coy,

243 Mich App 283, 315; 620 NW2d 888 (2000). “Premeditation and

deliberation may be established by evidence of ‘(1) the prior relationship of

the parties; (2) the defendant's actions before the killing; (3) the

circumstances of the killing itself; and (4) the defendant's conduct after the

homicide.’” People v. Abraham, 234 Mich App 640, 656; 599 NW2d 736

(1999), quoting People v. Schollaert, 194 Mich App 158, 170; 468 NW2d

312 (1992).

In this case, the evidence showed that defendant and the victim had a rocky

relationship. Defendant was known to stalk the victim and had at least one

documented violent outburst, damaging a male friend's car. The victim

obtained a PPO the year before her death due to defendant's escalating

temper, although she terminated it shortly after it went into effect.

With regard to the killing itself, the evidence supported an inference that the

victim was attacked in defendant's master bedroom, not the main entrance

as he claimed. The victim was struck a minimum of three times with a

baseball bat and the blows to her head were so forceful that her skull was

fractured and her brain was injured. Furthermore, the victim sustained a

27

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 27 of 35 Pg ID 1122
Patterson v. Davis

Case No. 2:08-CV-14399

Page 28 of 35

defensive wound to her left arm. People v. Johnson, 460 Mich 720, 733;

597 NW2d 73 (1999). And despite claiming a desire to seek help for the

victim, defendant did not call 911 or rouse any of his neighbors.

The evidence showed that after the killing, defendant went about his normal

activities. He went to work the next day and to his coworker's son's hockey

game that night, and washed dishes the following day. Defendant also

methodically cleaned the crime scene and disposed of the victim's body and

initially her car. Viewed in the light most favorable to the prosecution, there

was sufficient evidence of premeditation and deliberation to allow the jury

to find defendant guilty of first-degree murder..

Patterson, 2007 WL 1160179 at *1.

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law or the facts. The prosecution presented sufficient

evidence to establish Petitioner’s guilt of first-degree murder, through the testimony of

the victim’s co-workers and friends, the investigating police officers, and the medical

examiner, as well as Petitioner’s own testimony, and reasonable inferences therefrom. 

Petitioner’s intent to kill, including premeditation and deliberation, was established by his

tumultuous relationship with the victim, his punch to the victim’s face and his subsequent

use of a baseball bat to strike the victim repeatedly, the extent of the victim’s injuries and

defensive wounds, his failure to seek medical help or contact the police, and his actions

after the crime, including his disposal of the victim’s body, his clean-up of the crime

scene, his seemingly normal work and social behavior, and his driving the victim’s car

around town. Petitioner had time to consider his actions and take a “second look” during

28

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 28 of 35 Pg ID 1123
Patterson v. Davis

Case No. 2:08-CV-14399

Page 29 of 35

the incident before killing the victim. Considered in a light favorable to the prosecution,

the trial testimony and physical evidence was sufficient to show that Petitioner beat the

victim to death and that he acted with the requisite intent to support his first-degree

murder conviction.

Petitioner challenges the inferences the jury drew from the testimony presented

during trial. However, it is the job of the fact-finder at trial, not a federal habeas court, to

resolve evidentiary conflicts. See Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d

594, 618 (6th Cir. 2002); Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A

federal habeas corpus court faced with a record of historical facts that supports conflicting

inferences must presume - even if it does not affirmatively appear in the record - that the

trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that

resolution.”). The jury’s verdict, and the Michigan Court of Appeals’ decision affirming

that verdict, were reasonable. The evidence presented at trial, viewed in a light favorable

to the prosecution, establish beyond a reasonable doubt that Petitioner committed firstdegree murder. Habeas relief is not warranted on this claim.

D. Ineffective Assistance of Counsel Claim

Petitioner also asserts that he is entitled to habeas relief because trial counsel was

ineffective for failing to request a jury instruction, CJI2d 7.17, which would have

29

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 29 of 35 Pg ID 1124
Patterson v. Davis

Case No. 2:08-CV-14399

Page 30 of 35

informed the jurors that he did not have a duty to retreat in his own dwelling. Respondent

contends that this claim lacks merit.

The Sixth Amendment to the United States Constitution guarantees a criminal

defendant the right to the effective assistance of counsel. In Strickland v. Washington,

466 U.S. 668 (1984), the United States Supreme Court set forth a two-prong test for

determining whether a habeas petitioner has received ineffective assistance of counsel. 

First, a petitioner must prove that counsel’s performance was deficient. This requires a

showing that counsel made errors so serious that he or she was not functioning as counsel

as guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Second, the

petitioner must establish that counsel’s deficient performance prejudiced the defense. 

Counsel’s errors must have been so serious that they deprived the petitioner of a fair trial

or appeal. Id. 

To satisfy the performance prong, a petitioner must identify acts that were “outside

the wide range of professionally competent assistance.” Id. at 690. The reviewing

court’s scrutiny of counsel’s performance is highly deferential. Id. at 689. There is a

strong presumption that trial counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment. Id. at 690. The

petitioner bears the burden of overcoming the presumption that the challenged actions

were sound trial strategy.

30

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 30 of 35 Pg ID 1125
Patterson v. Davis

Case No. 2:08-CV-14399

Page 31 of 35

As to the prejudice prong, a petitioner must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694. A reasonable probability is one that is sufficient

to undermine confidence in the outcome of the proceeding. Id. “On balance, the

benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the [proceeding] cannot

be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

The Supreme Court has confirmed that a federal court’s consideration of

ineffective assistance of counsel claims arising from state criminal proceedings is quite

limited on habeas review due to the deference accorded trial attorneys and state appellate

courts reviewing their performance. “The standards created by Strickland and § 2254(d)

are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” 

Harrington, 562 U.S. at 105 (internal and end citations omitted). “When § 2254(d)

applies, the question is not whether counsel’s actions were reasonable. The question is

whether there is any reasonable argument that counsel satisfied Strickland’s deferential

standard.” Id.

The Michigan Court of Appeals considered this claim on direct appeal and denied

relief. The court explained:

31

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 31 of 35 Pg ID 1126
Patterson v. Davis

Case No. 2:08-CV-14399

Page 32 of 35

Defendant also argues that defense counsel was ineffective for failing to

request CJI2d 7.17, which would have instructed the jury that defendant did

not have a duty to retreat in his own dwelling.

Because defendant did not raise this issue in a motion for a new trial or

request for a Ginther2 hearing, our review is limited to mistakes apparent

from the record. People v. Wilson, 242 Mich App 350, 352; 619 NW2d 413

(2000). The determination whether a defendant has been deprived of the

effective assistance of counsel is a mixed question of fact and constitutional

law. People v. LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). To

establish ineffective assistance of counsel, a defendant must show that

counsel's deficient performance denied him the Sixth Amendment right to

counsel and that, but for counsel's errors, the result of the proceedings

would have been different. People v. Mack, 265 Mich App 122, 129; 695

NW2d 342 (2005).

The prosecutor argues that there was no evidence that defendant was

attacked in his home, and thus, the instruction was not appropriate. We

disagree. Defendant's testimony that the victim attacked him in his home

was sufficient to support the instruction. Thus, the trial court would have

been obliged to give it upon request. People v. Riddle, 467 Mich 116, 124;

649 NW2d 30 (2002).

However, we do not agree with defendant that, had the instruction been

given, there is a reasonable likelihood the outcome of the trial would have

been different. Defendant argues that the omitted instruction denied him of

his theory of self-defense, which he maintained throughout trial. But the

jury was instructed on self-defense in accordance with CJI2d 7.15. Even if

the no duty to retreat instruction had been given, the jury still had to

determine if defendant acted honestly and reasonably in protecting himself,

which was part of the self-defense instruction that was given. “Even if the

instructions are somewhat imperfect, reversal is not required if the

instructions fairly presented the issues to be tried and were sufficient to

protect the rights of the defendant.” People v. Fennell, 260 Mich App 261,

265; 677 NW2d 66 (2004). Therefore, defendant's ineffective assistance of

counsel claim fails because he cannot show that he was prejudiced.

32

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 32 of 35 Pg ID 1127
Patterson v. Davis

Case No. 2:08-CV-14399

Page 33 of 35

Patterson, 2007 WL 1160179 at *2 (footnote omitted).

The state court’s decision is neither contrary to Supreme Court precedent nor an

unreasonable application of federal law or the facts.1

 Even assuming that counsel erred

by failing to request the no duty to retreat instruction, Petitioner fails to establish that he

was prejudiced by counsel’s conduct. First, the trial court’s self-defense instruction was

adequate to inform the jury about Petitioner’s claimed defense and to protect his rights. 

The court specifically instructed the jurors that Petitioner could take appropriate actions

to defend himself if he reasonably believed that his life was in danger or that he was

subject to serious physical injury at the time of the altercation with the victim. The court

did not indicate that Petitioner had any duty to retreat. Second, given the strength of the

evidence supporting the first-degree murder conviction, including the injuries to the

victim and Petitioner’s actions after her death, there is no reasonable probability that the

duty to retreat instruction would have affected the outcome at trial. Petitioner fails to

establish that trial counsel was ineffective. Habeas relief is not warranted on this claim.

V. Conclusion

For the reasons stated, the Court concludes that Petitioner is not entitled to relief

on his claims and that the petition for a writ of habeas corpus must be denied.

 1The Court would reach the same result under a de novo standard of review.

33

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 33 of 35 Pg ID 1128
Patterson v. Davis

Case No. 2:08-CV-14399

Page 34 of 35

Before Petitioner may appeal the Court’s decision, a certificate of appealability

must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of

appealability may issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on

the merits, the substantial showing threshold is met if the petitioner demonstrates that

reasonable jurists would find the court’s assessment of the constitutional claim debatable

or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this

standard by demonstrating that . . . jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.

322, 327 (2003). When a court denies relief on procedural grounds without addressing

the merits, a certificate of appealability should issue if it is shown that jurists of reason

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

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

was correct in its procedural ruling. Slack, 529 U.S. at 484-85.

 Having considered the matter, the Court concludes that Petitioner fails to make a

substantial showing of the denial of a constitutional right as to his habeas claims and that

reasonable jurists could not debate the correctness of the Court’s procedural rulings. No

certificate of appealability is warranted. Nor should Petitioner be granted leave to

34

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 34 of 35 Pg ID 1129
Patterson v. Davis

Case No. 2:08-CV-14399

Page 35 of 35

proceed in forma pauperis on appeal as an appeal cannot be taken in good faith. See FED.

R. APP. P. 24(a).

Accordingly;

IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED and

leave to proceed in forma pauperis on appeal is DENIED.

S/Arthur J. Tarnow 

ARTHUR J. TARNOW

SENIOR UNITED STATES DISTRICT JUDGE

Dated: April 14, 2016

35

2:08-cv-14399-AJT-RSW Doc # 22 Filed 04/14/16 Pg 35 of 35 Pg ID 1130