RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0424p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

THOMAS DAVIS,

Petitioner-Appellee,

v.

RAYMOND BOOKER, Warden,

Respondent-Appellant.

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No. 09-1140

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 02-75063—Arthur J. Tarnow, District Judge.

Argued: November 19, 2009

Decided and Filed: December 15, 2009 

Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

_________________

COUNSEL

ARGUED: Brian O. Neill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellant. Joan Ellerbusch Morgan, Sylvan Lake, Michigan, for

Appellee. ON BRIEF: Brian O. Neill, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, for Appellant. Joan Ellerbusch Morgan, Sylvan Lake,

Michigan, for Appellee.

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OPINION

_________________

MERRITT, Circuit Judge. In 1998, Thomas Davis and John Wilder were in a car

attempting to purchase drugs from Troy Prewitt when one of them shot and killed Prewitt.

Davis, the habeas petitioner here, was charged with murder in Michigan state court and

convicted by a jury. The main factual question at trial was whether Davis or Wilder was the

shooter. Wilder was a key witness against Davis at trial and testified that Wilder was merely

1
No. 09-1140 Davis v. Booker Page 2

driving Davis to buy drugs and had no intention of killing Prewitt. Davis claimed that their

roles were reversed.

The main questions now before us, decided in Davis’s favor by the District Court

below, are (1) does Davis have any significant evidence that a potential, uncalled witness,

Todd Selma, would have testified that Wilder confessed to the shooting, and (2) did the

prosecutor improperly vouch for Wilder’s credibility by noting that Wilder had been charged

only as an accessory after the fact and not as an accomplice to the murder. With regard to

the first question, we find that the only significant evidence in the record showing what

Selma would have testified, if produced, is a letter that actually implicates Davis, not Wilder,

for the shooting. Hence, we conclude that it is clear from the record that Davis was not

prejudiced by his lawyers’ failures to locate and call Selma. With regard to the second

question, we conclude that the prosecutor’s statements did not constitute improper vouching

because Wilder’s charge was in the record and his personal interest in the case was obvious

to the jury.

We, therefore, reverse the issuance of the writ of habeas corpus by the District Court.

I. FACTS

The testimony at trial showed that Wilder and Davis drove to a parking lot to

purchase drugs, with Wilder driving and Davis in the passenger seat. They attempted to buy

drugs from Derrick Glaze “on credit,” but Glaze refused. Troy Prewitt, another dealer,

entered the parking lot and also refused to sell them drugs on credit. As Prewitt stood next

to the passenger side of the vehicle, Davis grabbed the drugs. Wilder slowly drove away as

Prewitt ran alongside the car to retrieve his drugs. Davis then shot and killed Prewitt. These

facts are not in dispute except insofar as Davis claims that his role and Wilder’s were

reversed.

The prosecution’s evidence at trial consisted primarily of testimony from Wilder and

Glaze and two other eyewitnesses, Wendell Wilson and Dean Rochelle. Credibility was an

issue with each of these witnesses. Wilder was in the car with Davis for the purpose of

buying drugs and later gave a questionable story to police. He pleaded guilty to being an

accessory after the fact and was sentenced to probation. Glaze was an admitted drug dealer
No. 09-1140 Davis v. Booker Page 3

and gave questionable testimony, including that he observed a black woman in the car. He

also did not tell police that he saw who fired the gun or that he saw Davis with a gun.

Wilson could not tell whether the driver or passenger fired or even how many people were

in the car. Rochelle was a drug dealer. During cross-examination, Rochelle admitted that,

on the day he gave a statement to police regarding this case, he also gave a statement

regarding another murder case. He also stated that the information he gave regarding the

other murder case was fabricated because he was pressured by police.

After a trial, Davis was convicted by a jury of second-degree murder and possession

of a firearm during the commission of a felony. He was sentenced as a habitual offender to

30 to 60 years’ imprisonment for the murder conviction, to be served consecutively to two

years’ imprisonment for the felony-firearm conviction. His conviction and sentence were

affirmed on appeal.

Davis’s initial petition for habeas corpus relief was denied for failure to exhaust his

ineffective assistance of appellate counsel claims in state court. Davis returned to federal

court after the state court denied these claims. In response to Davis’s eight habeas claims,

the District Court conducted an evidentiary hearing and ultimately granted relief on the

grounds that Davis “was deprived of his right to the effective assistance of trial and appellate

counsel and because the prosecutor committed misconduct.” Davis v. Booker, 594 F. Supp.

2d 802, 805 (E.D. Mich. 2009). In granting habeas relief, the district court specifically found

that: (1) Davis’s trial counsel was ineffective for failing to locate and interview Selma; (2)

Davis’s appellate counsel was ineffective for failing to locate and interview Selma; (3)

Davis’s trial counsel was ineffective in failing to meet privately with Davis until eight days

before trial, and so failing to learn about Selma’s allegedly critical comments; (4) Davis’s

trial counsel was ineffective for failing to request criminal histories for prosecution witnesses

and failing to impeach Wilder with evidence of a prior conviction for retail fraud; and (5)

the prosecutor engaged in misconduct by improperly vouching for Wilder’s credibility. Id.

at 805-06, 819-20.

The central issue respecting the failure to call the witness, Todd Selma, arises

because Davis claims that he, Wilder and Selma were in jail together where Wilder
No. 09-1140 Davis v. Booker Page 4

confessed to the murder to Selma. The District Court believed that the writ of habeas corpus

must issue because of the following circumstances described in the District Court’s opinion:

The record shows that the information regarding Selma’s potential

testimony was supplied to and available to counsel at least several months

prior to trial in the form of Petitioner’s verbal statements to counsel and the

pro se motion filed in the trial court regarding representation by Petitioner’s

first court-appointed attorney. Yet, counsel waited until eight days prior to

trial to try to locate this witness. He relied upon a police investigator to

locate Selma without tapping a resource at his disposal, an investigator

already approved by the court.

The Michigan Court of Appeals held that Petitioner failed to show

that counsel was ineffective in failing to locate Selma or that Petitioner was

prejudiced by this failure. The state court rested its conclusion on the

absence of any testimony at the Ginther hearing that (i) Selma would have

been available to testify, (ii) the prosecutor and police failed to use due

diligence to locate Selma. The state court did not address counsel’s failure

to utilize the investigator, counsel’s general obligation to investigate and

prepare a defense, or the fact that Selma was on probation at the time trial

counsel admitted to first hearing his name.

. . . .

In this case, an attorney acting competently, would have attempted

to locate and interview Todd Selma when initially made aware of his

potential testimony. In addition, an attorney acting competently would have

discovered that the trial court had approved a private investigator and would

have utilized that investigator to attempt to locate Selma rather than relying

on police, and would have attempted to ascertain the identity of any

additional potential witnesses to the shooting. The requirement that an

attorney conduct a reasonable investigation requires that an attorney

commence investigation far enough in advance of trial to allow for time to

pursue leads, interview witnesses and develop a defense strategy. While

defense counsel in this case developed a defense strategy, attempting to

inculpate Wilder as the shooter, he failed to investigate and develop any

facts which would have supported that theory. In addition, at the state court

evidentiary hearing, the trial court judge noted that Selma was on probation

through June 25, 1999. Thus, if trial counsel had undertaken prompt and

diligent efforts, Selma could have been easily located while either

incarcerated or serving a term of probation.

. . . .

Respondent argues that Petitioner fails to establish prejudice in

counsel’s failure to call Selma as a witness for two reasons: because a letter

purportedly written by Selma in 2002 incriminates Petitioner and because
No. 09-1140 Davis v. Booker Page 5

Petitioner has presented no evidence to show how Selma would have

testified at trial.

First, Petitioner has produced a copy of a March 26, 2002 letter

purportedly written by Todd Selma to Petitioner. The substance of the letter

is confused. Selma appears to simultaneously profess Petitioner’s innocence

while placing blame for the shooting on someone from New York.

Considerable testimony was presented at the evidentiary hearing to show

that Petitioner was called “New York” by several fellow prisoners. In the

letter, Selma admits that he does not fully remember the details of his 1998

encounter with Wilder. The letter was written over three years after Selma’s

contact with Wilder at the Inkster County Jail. While the letter does not

clearly and unequivocally exculpate Petitioner neither does it, as Respondent

alleges, clearly and unequivocally inculpate him. Instead, the letter raises

additional questions, including whether Selma believed that he was, as

Respondent argues, writing to Wilder rather than Petitioner, whether Selma

thought Wilder was known as “New York;” and whether Selma would have

been able to clarify these ambiguities had he been located prior to trial.

These questions may have been answered had counsel undertaken a

vigorous, effective search for Selma.

Davis v. Booker, 594 F. Supp. 2d 802, 805 (E.D. Mich. 2009).

We present our disagreement with the District Court in the next section. We do not

take issue with the District Court on the issue of counsel’s deficient performance. Rather we

disagree on the issue of prejudice because the letter in the record from Selma indicates that

Selma’s testimony would have been extremely harmful to Davis’s case.

II. ANALYSIS

1. Ineffective Assistance of Counsel — Failing to Have Todd Selma Testify

Several of the District Court’s findings concern the missing testimony of Todd

Selma, who allegedly heard Wilder confess to the shooting. Contrary to the decision of the

Michigan Court of Appeals, the District Court held that Davis’s trial and appellate counsel

were ineffective for failing to locate and obtain testimony from Selma. The District Court

also held that Davis’s trial counsel was ineffective for failing to meet with Davis until eight

days before trial, and so failing to learn about Selma’s supposedly vital comments until it

was too late to find Selma before the trial. All three of these findings depend upon the

assumption that Selma, had he been located, would have testified that it was Wilder and not

Davis who shot Prewitt.
No. 09-1140 Davis v. Booker Page 6

There is evidence that both lawyers were deficient. The District Court believed that

a pro se motion filed by Davis that included Selma’s name should have made trial counsel

aware of Selma’s potential testimony several months before the trial. Although trial counsel

read the motion, he admitted that he did not learn of Selma’s existence until he met with

Davis — for the very first time — just eight days before the trial. Trial counsel then asked

the police officer in charge of the case to locate Selma but did not know what steps were

taken to locate him. Trial counsel was unaware that an investigator had been approved for

his use by the court. Because Selma was on probation, before and during the trial, he

presumably could have been located with a reasonable search.

At the habeas evidentiary hearing, appellate counsel testified that the only effort he

made to locate Selma was to call a telephone number given to him by Davis, but he did not

receive a response. He did not provide any reason for failing to take further steps but

testified that it was his “understanding that, if called to testify at trial, Selma would have

testified that Wilder confessed to being the gunman.” Davis, 594 F. Supp. 2d at 819-20.

Whatever the deficiencies by Davis’s attorneys for failing to locate and call Selma,

Davis must also show that, had Selma testified, the result of his trial would have been

different with a “probability sufficient to undermine the confidence in the outcome.” Avery

v. Prelesnik, 548 F.3d 434, 438 (6th Cir. 2008) (quoting Strickland v. Washington, 466 U.S.

668, 694 (1984)). Davis claims, and the District Court found, that Selma would have

testified that Wilder confessed to Selma that Wilder — not Davis — shot the victim. This

Court need not consider the impact that such an alleged confession might have had at trial

because there is no real evidence that Selma would have actually implicated Wilder and

exonerated Davis had Selma testified.

Neither the District Court opinion nor Davis’s brief sets out what Selma actually

knew and how he knew it. From the Warden’s brief, we learn that Davis’s claim is based

on two sources. First, Davis testified at a state court evidentiary hearing that while Davis,

Wilder, and Selma were all in a lineup in 1998, Wilder confessed to Selma that Wilder killed

Troy Prewitt. Moreover, according to Davis, Selma told Davis that Selma would testify if

Wilder did not confess to police. (Resp. Br. at 19.) Second, and most importantly, Selma

wrote Davis a letter in 2002 which reflects not only his confusion about to whom he is
No. 09-1140 Davis v. Booker Page 7

1

By questioning whether Davis was known as “New York” rather than whether he was from New

York, it appears that the District Court misread the letter. Moreover, the District Court acknowledged that

“[c]onsiderable testimony was presented at the evidentiary hearing to show that Petitioner was called ‘New

York’ by several fellow prisoners.” Davis, 594 F. Supp. 2d at 817.

writing but also his belief that a “guy from New York” was the shooter. Because Davis, as

he acknowledges in his brief, is the only person involved in the case from New York, it is

clear that Selma, if he had testified consistently with his letter, would have destroyed Davis’s

defense:

Dig man, sorry to hear that you got railroaded like you did, that’s . . .

up. But dig man, I’d like to help you as much as possible, and if you’re the

guy I then talked to in Inkster then yeah I can honestly say that no you

didn’t shoot Troy based on my own investigation. What I’m trying to say

is I don’t remember hearing the truth like in the affidavit as you have it. At

present my version is pretty vague, but I do remember that some guy

from New York is the one who shot Troy. And if I’m not mistaken, you

were driving and he was on the passenger’s side and reached over and

shot Troy after he refused y’all some credit.

I also remember the line-up, the glasses, and the guy in the county

greens wearing the glasses. We were all in that small cell by the kitchenette

of Inkster jail. I don’t fully recall the ride back and forth from and to the

County jail. Dig man, I wanna help you and I’m tryin my best to remember

as much of that day as I can, but honestly, I’m not doing too well. I don’t

know how much time you have to correct the wrong but I’m gonna need a

bit more. It’s coming back to me in scattered pieces.

I remember something about somebody putting on a dress and

sneaking next door when the police showed up. I also remember the guy

from New York saying that “he couldn’t admit to killin Troy but he

would testify that you didn’t do it. That he had been to the joint once

before and he wasn’t going back.” Oh yeah: I remember me asking him

why did he shoot Troy and he said he didn’t know.

(Resp. Br. at 21) (emphasis added).

The District Court noted that “[t]he substance of the letter is confused [because]

Selma appears to simultaneously profess [Davis’s] innocence while placing the blame for

the shooting on someone from New York.” Davis, 594 F. Supp. 2d at 817. Thus, the Court

found in error that although the letter does not

clearly and unequivocally exculpate [Davis] . . . the letter raises additional

questions, including whether Selma believed that he was, as [the Warden]

argues, writing to Wilder rather than [Davis]; whether Selma thought Wilder

was known1

 as ‘New York;’ and whether Selma would have been able to
No. 09-1140 Davis v. Booker Page 8

clarify these ambiguities had he been located prior to trial. These

questions may have been answered had counsel undertaken a vigorous,

effective search for Selma.

Id.

To the contrary, there is only way that the letter may reasonably be read: Selma

(1) believed that Davis had confessed to the shooting and (2) mistakenly thought he was

writing to Wilder instead of Davis. Although it seems unusual to write such a letter to

the wrong person, Selma expressly conveyed his uncertainty about the person with

whom he was corresponding (“if you’re the guy I talked to in Inkster . . .”). Selma is

sure about several distinct details regarding both the events surrounding the confession

and what he learned about the shooting itself, the most significant of which is that the

“guy from New York” was the shooter. Because only Davis was from New York, it is

clear that Selma thought Davis was the shooter.

Like his trial and appellate counsel, Davis’s habeas counsel says he has also been

unable to locate or obtain a statement from Todd Selma. The District Court, having

concluded that Selma’s testimony may now be “irretrievably lost,” held that Davis need

not show prejudice for his ineffective assistance of counsel claim: “To hold that this

failure to produce evidence regarding what [Selma’s] testimony would have been

prevents a finding of prejudice would be to insulate counsel’s failure to investigate from

review.” Id. at 818. To the contrary, the letter unmistakably demonstrates that Selma’s

testimony would have served to inculpate, rather than exculpate, Davis. Davis was not

prejudiced by the failure of his attorneys to procure prejudicial testimony from Selma.

2. Ineffective Assistance of Counsel — Failing to Impeach Derrick Glaze with Prior Conviction

The Michigan Court of Appeals held that Davis’s trial counsel was not

ineffective for failing to impeach Derrick Glaze, a key prosecution witness, with a prior

felony conviction for retail fraud. It reasoned that “[t]he marginal impact of the alleged

error fails to satisfy the prejudice prong of the test for ineffective assistance of counsel.”

Davis, 594 F. Supp. 2d at 821. The District Court found this to be an unreasonable
No. 09-1140 Davis v. Booker Page 9

application of Strickland “in the larger context of counsel’s other errors and the relative

weakness of the prosecutor’s case.” Id. The Court continued: “The prior felony

conviction, by itself, may not have persuaded the jury to return a not guilty verdict, but,

if that impeachment evidence was introduced along with testimony that there was some

evidence that Wilder, not [Davis], was the shooter, it may have been sufficient to sway

the jury.” Id. at 821-22.

The District Court’s finding of prejudice for the failure to impeach Glaze for the

prior conviction is contingent on Selma’s exculpatory testimony. In the absence of

testimony from Selma that Wilder was the shooter, then Davis cannot show that the

impeachment would have made a difference in the outcome of his trial. Moreover,

undisclosed impeachment evidence is cumulative “when the witness has already been

sufficiently impeached at trial.” Brown v. Smith, 551 F.3d 424, 433-34 (6th Cir. 2008).

Here, Glaze’s credibility was already impeached by the facts that he (1) was a drug

dealer, and (2) made inconsistent statements to police and at a preliminary hearing.

There is no reason to believe that the “marginal impact” of a retail fraud conviction

would have significantly impacted the jury’s assessment of Glaze’s testimony, much less

its final verdict.

3. Improper Prosecutorial Vouching of John Wilder’s Credibility

The final basis upon which the District Court granted habeas relief was

“improper vouching” by the prosecutor for the testimony of John Wilder. Because Davis

failed to object at trial to the prosecutor’s statements, this claim is procedurally defaulted

unless Davis can show “cause and prejudice” to excuse the default. Coleman v.

Thompson, 501 U.S. 722, 750 (1991). The District Court held that ineffective assistance

of trial counsel constituted cause because the improper nature of the prosecutor’s

conduct was obvious and apparent. Davis, 594 F. Supp. 2d at 826.

It is unclear what the District Court believed was “improper vouching.”

Prosecutorial vouching is said to occur when the prosecutor “supports the credibility of

a witness by indicating a personal belief in the witness’s credibility[,] thereby placing

the prestige of a [prosecutor’s office] behind that witness” through “comments that
No. 09-1140 Davis v. Booker Page 10

imply that the prosecutor has special knowledge of facts not in front of the jury.” United

States v. Francis, 170 F.3d 546, 550 (6th Cir. 1999). That did not occur here.

During the trial, the prosecutor told the jury that Wilder did not receive favorable

treatment for testifying against Davis: “[W]ilder got a no charge reduction. That is, he

pleaded guilty as charged to the crime of accessory after the fact because that’s what he

did.” Davis, 594 F. Supp. 2d at 833. According to the District Court, this constituted

improper vouching because “[t]he circumstances surrounding the crime in this case

certainly would have supported a second-degree murder charge [for Wilder] based upon

an aiding and abetting theory.” Id. at 826. Thus, by failing to charge Wilder initially

with a higher crime, the prosecutor “attempted [an] end run around the plea-agreementdisclosure requirement,” concealing Wilder’s true motives for testifying and making the

“repeated reference to the ‘minimal’ benefit afforded Wilder for his testimony

improper.” Id.

The prosecutor’s statements do not fall under the rubric of improper vouching:

the prosecutor did not indicate a personal belief of Wilder’s veracity based on special

knowledge of facts not before the jury. Rather, the District Court essentially concluded

that the prosecutor committed some other form of misconduct by undercharging Wilder

for the purpose of bolstering his credibility at Davis’s trial.

But nothing remained undisclosed. The prosecutor charged Wilder as an

accessory because presumably he did not have proof that Wilder thought that Davis was

likely to shoot Prewitt or anyone else. In this case, Wilder’s charge was in evidence: he

testified at the very beginning of direct examination that he had pleaded guilty to being

an accessory after the fact. (Trial Transcript, Part A, 6/22/99, 162). As the Michigan

Court of Appeals wrote:

Whether Wilder could have been charged with a more serious offense

does not change the fact that he was only charged with being an

accessory after the fact, to which he pleaded guilty. Therefore, the

prosecutor’s comments that the witness did not receive a charge

reduction were accurate, and did not deceive the jury or deny defendant

a fair trial. . . . The witness’s interest in the matter was clear.
No. 09-1140 Davis v. Booker Page 11

Id. at 825. 

Accordingly, the judgment of the District Court is reversed.