Petitioner was convicted of the above offenses following a jury trial in the Saginaw County Circuit Court, in which he was tried jointly with several co-defendants. This Court recites verbatim the relevant facts regarding petitioner's conviction from the Michigan Court of Appeals's opinion,which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case arises from events that occurred on December 10, 2007, in Saginaw, Michigan. According to the testimony of witnesses, including that of Darell Hewitt, who agreed to testify "truthfully and completely ... about the events that occurred December 10th, 2007,"1 he, defendant, Caprice Mack, Dquan Favorite, Arnell Johnson, Jeremy Williamson and Deshawn Christopher were drinking and playing games at a house on Sanford Street when Tonya Wilson's car was burned. Travis Crowley2 testified that his girlfriend, April Johnson, called him and told him that her mom's car "got blew up." Crowley said that Mack got on the phone and told him that "some boys had blew up Tonya['s] car, so ... they said that they was gonna take care of it."
According to Hewitt, after Wilson's car burned, defendant and Favorite discussed retaliating against persons at a duplex located at 1622 Farwell Street in Saginaw because they thought Ronell Hinley had burned the car. Hewitt said that the group planned "to set the [Farwell] car on fire" and "to shoot anybody that come [sic] out of the house." Hewitt testified, however, that there was no agreement to set fire to the house or to kill anyone.
The evidence indicated that defendant, Hewitt, Favorite, Mack, Johnson and Williamson went to the house at Farwell to set the car on fire, but they failed to successfully do so. The men returned to the house on Sanford and then defendant, Hewitt, Favorite, Mack and Christopher made a second trip to the Farwell house. Defendant and Mack went into the garage with containers of gasoline and then ranout. This time, the car in the Farwell house garage was set on fire. There was evidence that Hewitt and Favorite had guns and that as the fire at the Farwell house spread from the garage to the house, people began to leave the house, and Hewitt and Favorite shot at the people as they left.
Defendant, Favorite, and Mack, who were all tried together, moved for a directed verdict on all counts. Defendant argued that Hewitt's testimony, in a light most favorable to the prosecutor, showed that there was a plan to burn a car in the Farwell house's garage. Defendant argued that this was insufficient to support a charge of attempted murder or conspiracy to commit first-degree murder. The trial court, concluding that the combination of starting a house on fire at 2:00 a.m. and shooting at people as they exited the house "establish[ed] evidence of attempt to murder," denied the motion for directed verdict as to all three defendants. On July 2, 2009, defendant moved for a new trial on the basis of newly discovered evidence, the evidence being an affidavit, purportedly from Hewitt, wherein Hewitt claims that he lied at trial to save himself, and that defendant "is innocent of all charges." The trial court denied the motion without an evidentiary hearing, and this appeal ensued.
People v. Davis, No. 290131, 2010 WL 2507029, * 1 (Mich.Ct.App. June 22, 2010).
Petitioner's conviction was affirmed on appeal. Id.
The Michigan Supreme Court remanded the case to the Michigan Court of Appeals for consideration of an issue raised by petitioner but not addressed in that court's opinion, namely, whether the circuit court erroneously allowed the statement of petitioner's co-defendant to be introduced into evidence through the preliminary examination testimony of another witness. People v. Davis, 488 Mich. 946, 790 N.W. 2d 401 (2010).
On remand, the Michigan Court of Appeals again affirmed petitioner's conviction. People v. Davis, No. 290131, 2011 WL 921656 (Mich.Ct.App. March 17, 2011)(On Remand). The Michigan Supreme Court subsequently denied petitioner leave to appeal. People v. Davis, 489 Mich. 993, 800 N.W.2d 78 (2011).
Petitioner subsequently filed a motion for relief from judgment, which was denied by the trial court. People v. Davis, No. 08-0320280-FC (Saginaw Cty. Cir. Ct., Sept. 7, 2012); reconsiderationden. (Saginaw Cty. Cir. Ct. Oct. 3, 2012). The Michigan appellate courts denied petitioner leave to appeal. People v. Davis, No. 314940 (Mich.Ct.App. Sept. 6, 2013); lv. den. 495 Mich. 918; 840 N.W.2d 361 (2013).
Petitioner filed a habeas petition, which was held in abeyance to permit petitioner to return to the state courts to exhaust additional claims.
Petitioner filed a second motion for relief from judgment, which was denied. People v. Davis, No. 08-0320280-FC (Saginaw Cty. Cir. Ct., Apr. 7, 2015). The Michigan appellate courts denied leave to appeal. People v. Davis, No. No. 328287 (Mich.Ct.App. Oct. 14, 2015); lv. den. 500 Mich. 853, 883 N.W. 2d 751 (2016).
On October 12, 2016, this Court granted petitioner's motion to reopen the habeas case and to amend the petition. In his amended petition, petitioner seeks relief on the following grounds:
I. There was insufficient evidence to convict the Petitioner of conspiracy to commit first-degree murder, in doing so violated Petitioner [sic] Fourteenth Amendment constitutional right to due process.
II. There was insufficient evidence to convict the Petitioner of attempted murder, in doing so violated Petitioners [sic] Fourteenth Amendment constitutional rights to due process.
III. The trial court violated Petitioners [sic] Fifth Amendment constitutional rights when allowing multiple counts and charges without new (separate) elements, thus violating Petitioners [sic] constitutional protection against double jeopardy.
IV. The cumulative effect of all these errors violated Petitioners [sic] Fourteenth Amendment constitutional rights to a fair trial, simply because the errors were so prejudicial they clearly denied Petitioner a fair trial.
V. The trial court violated Petitioners [sic] Sixth Amendment constitutional rights to a public trial, when the trial court concluded vior [sic] dire of the prospective jurors in secrecy in a star chamber like atmosphere, to the extent that the proceeding was conducted outside of the presence of the general public, resulting in structural error.
VI. The circuit court was divested of jurisdiction to try Petitioner for the crime in question because the bind over was predicated sole [sic] upon perjured testimonial evidence presented during the preliminary examination by the prosecutors [sic] key witnesses. which [sic] constitutes a radical jurisdictional defect.
VII. The trial court violated Petitioners [sic] Fourteenth Amendment right to due process, as well abused its discretion when his instruction to the jury vouched for prosecution witness Darell Hewitts [sic] credibility was erroneous.
VIII. The trial court violated Petitioners [sic] Fourteenth Amendment right to due process, as well abused its discretion by never addressing Petitioner [sic] request for a handwriting expert. In doing so denied Petitioner [sic] rights to present defense, rendering Petitioner unfair trial [sic].
IX. The trial court violated Petitioners [sic] Fourteenth Amendment constitutional rights to a fair trial as well abused its discretion by erroneous charge to the jury.
X. The trial court violated Petitioners [sic] Sixth Amendment constitutional rights to effective assistance of counsel, in doing so denied Petitioners [sic] Fourteenth Amendment constitutional rights to due process, and abused its discretion by denying Petitioners [sic] motion for substitution of counsel.
XI. Petitioner was denied his Sixth Amendment constitutional rights to effective assistance of counsel, when counsel failed to adequately perform his professional responsibilities as counsel by failing to engage in any form of investigatory interviews of the prosecutions [sic] case to any meaningful adversarial testing, before or at trial.
XII. Petitioner was denied his Sixth Amendment constitutional rights to effective assistance of appellant counsel, when counsel failed to adequately investigate Petitioners [sic] appeal, in which counsel also failed to raise effective issues.
XIII. Petitioner was denied his Fourteenth Amendment constitutional rights to a fair trial when the prosecutor plead [sic] to the jury to commit a "civic duty" by returning a guilty verdict upon Petitioner.
XIV. Petitioner was denied his Fourteenth Amendment constitutional rights to a fair trial when the prosecutor lied to the jury stating Petitioner threatened to kill prosecution witness.
XV. Petitioner was denied his Fourteenth Amendment constitutional rights to a fair trial when the prosecutor inflamed the passion of the
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