UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EDWIN FORD, III,

Petitioner, 

v.

NICK LUDWICK,

Respondent. 

/

Case Number: 5:09-CV-10840

HON. JOHN CORBETT O’MEARA

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

AND DENYING CERTIFICATE OF APPEALABILITY

This is a habeas case under 28 U.S.C. § 2254. Petitioner Edwin Ford, III, presently

incarcerated at the St. Louis Correctional Facility in St. Louis, Michigan, challenges his

conviction for first-degree premeditated murder. He argues that his attorney was ineffective in

failing to request a complete self-defense instruction and in failing to object to the instruction as

given. For the reasons set forth below, the Court denies the petition. 

I. Background

Following a jury trial in Genesee County Circuit Court, Petitioner was convicted for the

murder of Ronnie Morris on November 16, 2005 in the city of Flint. Petitioner admitted to

striking the fatal blow, but argued he acted in self-defense. The Michigan Court of Appeals

summarized the facts adduced at trial leading to Petitioner’s conviction as follows:

Defendant was convicted of murdering Ronny Morris in Kamela Randolph’s

apartment in Flint. Randolph permitted defendant and Morris to sleep in her

living room on the night of the murder. Defendant and Morris, who both lived in

Detroit, often stayed with Randolph when they visited Flint. Defendant explained

to the police that he and Morris had fought over who would sleep on the couch,

Morris pulled a gun on defendant, and defendant left the apartment. Because he
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did not want to be disrespected or humiliated, Defendant picked up a board from

the entryway and returned to the apartment, where he struck Morris repeatedly

with the board. 

People v. Ford, III, No. 272940 (Mich. Ct. App. Nov. 20, 2007).

On August 18, 2006, Petitioner was sentenced to life imprisonment without possibility of

parole. He then filed an appeal of right in the Michigan Court of Appeals, raising the following

claim: 

Was defendant denied the effective assistance of counsel by his attorney’s failure

to request an instruction to the jury that a person need not retreat from an attack in

his own dwelling before using deadly force?

The Michigan Court of Appeals affirmed Petitioner’s conviction. People v. Ford, III,

No. 272940 (Mich. Ct. App. Nov. 20, 2007).

Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising

the same claim raised in the Michigan Court of Appeals. The Michigan Supreme Court denied

leave to appeal. People v. Ford, III, No. 135431 (Mich. March 24, 2008). 

Petitioner then filed the pending petition for a writ of habeas corpus, raising the same

claim raised in state court.

II. Standard

28 U.S.C. § 2254(d) 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
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determination of the facts in light of the evidence presented in the

State court proceedings. 

28 U.S.C. § 2254(d). Additionally, this court must presume the correctness of state court factual

determinations. 28 U.S.C. § 2254(e)(1). 

A decision of a state court is “contrary to” clearly established federal law if the state

court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law

or if the state court decides a case differently than the Supreme Court has on a set of materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable

application occurs” when “a state-court decision unreasonably applies the law of [the Supreme

Court] to the facts of a prisoner’s case.” Id. at 409. A federal habeas court may not “issue the

writ simply because that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Id. at 410-11. 

III. Discussion

Petitioner presents a single claim for habeas corpus relief, that his trial attorney was

ineffective for failing to request a jury instruction that there is no duty to retreat from one’s own

dwelling. 

To establish that he received ineffective assistance of counsel, a petitioner must show,

first, that counsel’s performance was deficient and, second, that counsel’s deficient performance

prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner may

show that counsel’s performance was deficient by establishing that counsel’s performance was

“outside the wide range of professionally competent assistance.” Id. at 689. This “requires a

showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’
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guaranteed by the Sixth Amendment.” Id. at 687. To satisfy 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. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694. “[T]he focus should be on

whether the result of the trial was ‘fundamentally unfair or unreliable.’” Tinsley v. Million, 399

F.3d 796, 802 (6th Cir. 2005), quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). 

“Because advocacy is an art and not a science, . . . [counsel’s] strategic choices must be

respected,” if they were “made after thorough investigation of law and facts relevant to plausible

options.” Strickland, 466 at 690. The Supreme Court explained:

Judicial scrutiny of counsel’s performance must be highly deferential. It is all too

tempting for a defendant to second-guess counsel’s assistance after conviction or

adverse sentence, and it is all too easy for a court, examining counsel’s defense

after it has proven unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable. A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate

the conduct from counsel’s perspective at the time. Because of the difficulties

inherent in making the evaluation, a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy. 

Id. at 689. 

The Michigan Court of Appeals denied this claim, finding that an instruction that there is

no duty to retreat from one’s own dwelling was not supported by the record. The Michigan

Court of Appeals reasoned, in relevant part:

To establish ineffective assistance of counsel, a defendant must show that: 1)

counsel's performance fell below an objective standard of reasonableness under

prevailing professional norms; 2) there is a reasonable probability that, but for

counsel's error, the result of the proceedings would have been different; and 3) the

resultant proceedings were fundamentally unfair or unreliable. Defendant bears
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the heavy burden of overcoming the presumption that counsel's representation

was effective. In the instant case, defendant must establish that there is a

reasonable probability that, if defense counsel had requested CJI2d 7.17, he

would have been acquitted.

Self-defense normally requires that the defendant try to avoid the use of deadly

force if he can safely and reasonably do so, for example by using nondeadly force

or retreating. However, there is no duty to retreat when the defendant is in his

own home, even when both persons have a right to be in the home. The

defendant's home is determined by where he resides; it does not require

ownership and can include a place of temporary residence. In [People v. Davis,

216 Mich. App. 47, 54; 549 N.W.2d 1 (1996)], this Court held that the defendant

did not reside in the home where the assault occurred, even though "he had

previously resided there, continued to have a key to the residence, used it as a

mailing address, and occasionally slept there on a couch." Id. at 55.

CJI2d 7.17 is inapplicable to the facts of this case. The instruction that a

defendant has no duty to retreat in his own home is only appropriate where the

defendant is assaulted in his own home and where the degree of force used by the

defendant is necessary for the defense of his person. The evidence presented at

trial did not establish that defendant resided in Randolph's apartment. Defendant

lived in Detroit, and according to Randolph, he only stayed at her apartment “on

and off” when he visited Flint. During his visits, defendant used Randolph's

shower, ate in her kitchen, and slept in her living room. Defendant had slept on

Randolph's living room couch for only three days before the murder, and he

returned to Detroit immediately after the murder. These circumstances are far

less compelling than those presented in Davis, supra at 55, where this Court

determined that the defendant was not entitled to the same instruction. Moreover,

the force used by defendant was unnecessary for the defense of his person. 

Defendant repeatedly struck Morris in the head with a board, producing several

fatal injuries and massive bleeding. Defendant admitted to the police that he

continued to strike Morris even after Morris dropped his gun and raised his arms

in defense.

Furthermore, the self-defense instructions given by the trial court adequately

protected defendant's rights. The trial court gave a general self-defense

instruction, pursuant to CJI2d 7.15, and it instructed the jury, pursuant to CJI2d

7.16, that defendant had no duty to retreat from a sudden, fierce and violent

attack, or from an attack with a deadly weapon. Even if no "duty to retreat"

instructions were given, the trial court's general self-defense instructions required

the jury to determine whether defendant acted honestly and reasonably in

protecting himself.

Defense counsel did not render ineffective assistance of counsel. Counsel's
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failure to request an instruction inapplicable to the facts at issue does not

constitute ineffective assistance. In light of the self-defense instructions given to

the jury, defendant cannot establish that defense counsel's failure to request the

“no duty to retreat” instruction affected the outcome of the case. 

Ford, III, slip op. at 2-3. 

The Michigan Court of Appeals concluded that the “no duty to retreat” instruction was

not supported by a rational view of the evidence, and thus that the instructions were not

warranted by state law. In analyzing petitioner's ineffective assistance of counsel claim, this

expression of state law is binding on this Court. See Basile v. Bowersox, 125 F. Supp. 2d 930,

960 (E.D. Mo.1999). Therefore, any objection by counsel would have been futile. Counsel

cannot be deemed ineffective for failing to raise a meritless objection. See Bradley v. Birkett,

192 F. App’x 468, 475 (6th Cir.2006). Accordingly, the Court should conclude that petitioner is

not entitled to habeas relief.

IV. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a

certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of the Rules

Governing Section 2254 Proceedings now requires that the Court “must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant.” 

A COA may be issued “only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation

omitted). In this case, the Court concludes that reasonable jurists would not debate the
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conclusion that the petition fails to state a claim upon which habeas corpus relief should be

granted. Therefore, the Court will deny a certificate of appealability.

V. Conclusion

For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas corpus

is DENIED and the matter is DISMISSED WITH PREJUDICE.

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

s/John Corbett O’Meara 

United States District Judge

Date: September 30, 2010

I hereby certify that a copy of the foregoing document was served upon the parties of

record on this date, September 30, 2010, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager