                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0204n.06

                                           No. 18-1955

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                        FILED
 ALVIN DAVIS,                                             )                        Apr 24, 2019
                                                          )                   DEBORAH S. HUNT, Clerk
        Petitioner-Appellant,                             )
                                                          )
                                                                  ON APPEAL FROM THE
                v.                                        )
                                                                  UNITED STATES DISTRICT
                                                          )
                                                                  COURT FOR THE EASTERN
 JEFFREY LARSON,                                          )
                                                                  DISTRICT OF MICHIGAN
                                                          )
        Respondent-Appellee.                              )
                                                          )


BEFORE: GUY, CLAY, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Petitioner Alvin Davis appeals the district court’s denial of his petition for a writ of habeas

corpus under 28 U.S.C. § 2254. Because the court correctly determined that petitioner presented

no errors meriting relief, we affirm.

                                                 I.

       A Michigan jury convicted petitioner of unlawful imprisonment, felonious assault, and

possession of a firearm during the commission of a felony. People v. Davis, No. 300426, 2012

WL 882244, at *1 (Mich. Ct. App. Mar. 15, 2012) (per curiam). The Michigan Court of Appeals

provided the following description of his offenses:

       [Davis] was convicted of assaulting and unlawfully imprisoning Kristopher
       Delbridge on May 25, 2009, in Detroit. . . . The prosecution’s theory at trial was
       that [Davis], a supervisory deportation agent with the Department of Homeland
       Security (“DHS”), used his position as a federal agent to unlawfully obtain
       information involving a theft at his mother’s Detroit home on May 20, 2009.
       Evidence at trial indicated that as Kristopher Delbridge was leaving a neighborhood
No. 18-1955, Davis v. Larson


       store, [Davis] exited his government-issued Chevy Tahoe SUV, approached
       Kristopher, drew his government-issued firearm, forced Kristopher to sit on the
       ground, and prohibited Kristopher from standing or leaving as he questioned him.
       During the episode, [Davis] demanded the location of the suspected thief.
       Kristopher denied any knowledge of the suspected thief’s whereabouts, but used
       his cell phone to call the suspected thief’s mother, gave the phone to [Davis], and
       [Davis] spoke to the mother. Unbeknownst to the parties, a portion of the episode
       was captured on the store’s outside video surveillance camera.
Id.

       Before trial, the prosecution sought to introduce evidence of Davis’s prior misconduct as a

homeland security officer. See Mich. R. Evid. 404(b)(1). The other-acts evidence related to a

DHS investigation involving Zoha Madarani, a former immigration consultant to the State of

Michigan, with whom defendant had been engaged in an on-going sexual relationship. The

prosecution averred that it intended to tender evidence that, in 2003, Davis impermissibly

processed a deferred inspection for an Iraqi client of Madarani named Mohsin Al-Uglah, due to

Davis’s relationship with Madarani. Al-Uglah’s processing was impermissible because he had a

pending charge for first-degree criminal sexual conduct in Minnesota, which disqualified him from

admission to the country. And when he was investigated by DHS, the prosecution contended, he

was untruthful, changed his story multiple times, and later admitted to lying under oath.

Alternatively, and in the event the trial court rejected its motion to admit the other-acts evidence,

the prosecution moved to admit Davis’s prior inconsistent statements related to this DHS

investigation. After argument on the motions, the trial court precluded the prosecution from

presenting evidence related to the Al-Uglah matter in its case in chief but permitted the prosecution

to present the evidence in rebuttal, as well as Davis’s inconsistent statements, if he took the stand.

       The case went to trial, where Davis declined to testify in his own defense after being

advised of his right to do so. The jury convicted defendant of the three charges listed above, and

the trial court sentenced him to “concurrent prison terms of 2 to 15 years for the unlawful

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No. 18-1955, Davis v. Larson


imprisonment conviction and 2 to 4 years for the felonious assault conviction, to be served

consecutive to a 2-year term of imprisonment for the felony-firearm conviction.” Davis, 2012 WL

882244, at *1.

         Davis appealed to the Michigan Court of Appeals, raising, among other issues, a claim that

the trial court effectively denied him his right to testify by ruling that the prosecution could present

evidence of his past professional misconduct if he did. Id. at *1–2. The Michigan Court of Appeals

rejected this argument and ultimately affirmed, id. at *1–2, *4, and the Michigan Supreme Court

denied him leave to appeal, People v. Davis, 819 N.W.2d 908 (Mich. 2012).

         Davis then filed this § 2254 habeas petition in federal court. The petition raised two issues:

(1) his conviction was obtained by way of prosecutorial misconduct for presenting false evidence;

and (2) he was denied his Fifth Amendment right to testify in his own defense. The district court

held the petition in abeyance while Davis returned to state court to exhaust his perjured-testimony

claim.

         So Davis returned to Michigan court and filed a postconviction motion for relief from

judgment alleging that the prosecution committed misconduct by presenting false evidence to the

court during a pretrial hearing. The postconviction court rejected his motion because it held Davis

had already raised this claim in his direct appeal, which precluded postconviction relief. See

M.C.R. 6.508(D)(2). The Michigan Court of Appeals then denied his application for leave to

appeal the trial court’s decision. See People v. Davis, No. 334445 (Mich. Ct. App. Oct. 19, 2016)

(order).

         Back in federal court, the district judge reopened the habeas case and ordered the state to

respond. At the conclusion of briefing, the district court denied Davis’s petition on both grounds,

finding no merit in either claim. The court did, however, grant Davis a certificate of appealability


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No. 18-1955, Davis v. Larson


on both issues. Davis now appeals the district court’s order denying his petition for a writ of

habeas corpus.

                                                 II.

       “In an appeal from the denial of habeas relief, we review the district court’s legal

conclusions de novo and its factual findings for clear error.” Scott v. Houk, 760 F.3d 497, 503 (6th

Cir. 2014). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state conviction

may be overturned for an issue adjudicated on the merits in state court if the decision “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “[B]ecause the purpose of

AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions

in the state criminal justice systems, and not as a means of error correction,” Greene v. Fisher, 565

U.S. 34, 38 (2011) (internal quotation marks omitted), “[t]his is a difficult to meet, and highly

deferential standard for evaluating state-court rulings,” Cullen v. Pinholster, 563 U.S. 170, 181

(2011) (internal quotation marks and citations omitted).

                                                III.

       Davis first argues that the prosecution committed prosecutorial misconduct by admitting

false evidence at the pretrial hearing. The state counters both on the merits and on procedural-

default grounds. The Supreme Court has held that federal courts are not required to address a

procedural-default issue before deciding against the petitioner on the merits, Lambrix v. Singletary,

520 U.S. 518, 525 (1997) (citing 28 U.S.C. § 2254(b)(2)), and we have in the past declined to

address procedural default when it “is unnecessary to the disposition of the case.” Mahdi v. Bagley,

522 F.3d 631, 635 (6th Cir. 2008) (brackets and citation omitted). We take the same tack here and

proceed to the merits of Davis’s claim, finding no basis for habeas relief.


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No. 18-1955, Davis v. Larson


       The Supreme Court has long “made clear that deliberate deception of a court and jurors by

the presentation of known false evidence is incompatible with ‘rudimentary demands of justice.’”

Giglio v. United States, 405 U.S. 150, 153 (1972) (quoting Mooney v. Holohan, 294 U.S. 103, 112

(1935)). Therefore, the Court has required a new trial “if ‘the false testimony could . . . in any

reasonable likelihood have affected the judgment of the jury[.]’” Id. at 154 (quoting Napue v.

Illinois, 360 U.S. 264, 271 (1959)). To prove such a claim, Davis “must show that the statement

in question was false, that the prosecution knew it was false, and that it was material.” Byrd v.

Collins, 209 F.3d 486, 517 (6th Cir. 2000). Davis has the burden of proving the evidence was

indisputably false; merely inconsistent will not suffice. United States v. Fields, 763 F.3d 443,

461–62, 463 (6th Cir. 2014).

       The allegedly false evidence at issue arises from the prosecution’s pretrial “offer of proof”

of other-acts evidence. Davis challenges one portion of that offer of proof, relating to an alleged

investigation into his immigration inspection of Al-Uglah. In particular, he argues that the

following portion of the offer of proof was false, and the prosecutor knew or should have known

as much:

       [Davis] improperly completed the deferred inspection of Mohsin Al-Uglah, despite
       a pending disposition of a 1999 Criminal Sexual Conduct First Degree Penetration
       arrest in the State of Minnesota, a conviction of which would have made him
       inadmissible to the United States. Davis entered the following information into the
       immigration database computer: “Hennepin County Sheriffs Office in Minneapolis,
       MN records reflect that no official arrest was executed for offense in question.”
       In support of his claim that this assertion was knowingly false, Davis offers two arguments.

First, he claims, without any citation to evidence, that nine months after the prosecutor presented

the offer of proof to the trial court, the DHS investigation into Davis concluded, clearing him of

all allegations. This is insufficient. Allegations of perjury must be supported by factual evidence.

Barnett v. United States, 439 F.2d 801, 802 (6th Cir. 1971) (per curiam). It might well be true that

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No. 18-1955, Davis v. Larson


a subsequent investigation cleared Davis of these allegations, but there is nothing in the record to

support that assertion. Moreover, nothing about the investigation’s conclusion supports the claim

that the prosecution knew its assertions were false, Byrd, 209 F.3d at 517, or that they were

indisputably so, Fields, 763 F.3d at 463. Furthermore, although Davis argues that the allegations

in the offer of proof were “untrue” or “false,” he also acknowledges that the DHS investigation

merely found the challenged allegations to be “unsubstantiated.” So even assuming that this

unsupported claim is true, an unsubstantiated investigation falls well short of Davis’s burden to

show that the prosecution’s evidence was indisputably false. Fields, 763 F.3d at 463.

       Davis also attempts to support his claim with citation to an April 2, 2012 records-request

response by the Hennepin County Sheriff’s Office, which states that “[a] search of the records of

this office shows that there is no arrest history at the Hennepin County Adult Detention Center”

for Al-Uglah. But, again, this fails to support either that the prosecution’s offer of proof was

knowingly false, or that it was indisputably so. It is unclear to us how this 2012 response to a

record request is sufficient to show that the prosecution knew or should have known in 2010 that

Al-Uglah did not face criminal-sexual-conduct charges in Minnesota in 1999. As is apparent from

the offer of proof, the prosecution was relying upon the allegations supporting the DHS

investigation and Davis has presented no evidence even suggesting that the prosecution knew or

should have known at the time of the pretrial hearing that the offer of proof was false. Instead, the

evidence presented at most shows only that Al-Uglah was not arrested in Hennepin County—a

fact consistent with the offer of proof’s contention that Davis entered that exact information into

the immigration database. This is insufficient to show that the prosecution’s offer of proof, which

stated that Davis “improperly completed the deferred inspection of Mohsin Al-Uglah, despite a

pending disposition of a 1999 Criminal Sexual Conduct First Degree Penetration arrest in the State


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No. 18-1955, Davis v. Larson


of Minnesota,” which has dozens of counties, was indisputably false. Id. In sum, petitioner has

not met his burden and the district court correctly denied his habeas petition on this ground.

                                                 IV.

       Davis also claims that the trial court denied him his right to testify in his own defense under

the Fifth and Fourteenth Amendments. This argument does no better.

       As the Supreme Court has long noted, “[t]he right to testify on one’s own behalf at a

criminal trial . . . is one of the rights that ‘are essential to due process of law in a fair adversary

process.’” Rock v. Arkansas, 483 U.S. 44, 51 (1987) (quoting Faretta v. California, 422 U.S. 806,

819 n.15 (1975)). This right “falls under the protections of the Fifth and Fourteenth Amendments,”

among other constitutional provisions, and can only be relinquished by the knowing and

intentional waiver of the right by the criminal defendant. United States v. Webber, 208 F.3d 545,

550–51 (6th Cir. 2000).

       The main problem with Davis’s claim is that, despite his framing of the issue, the trial court

never denied him his right to testify. In fact, the trial court, following longstanding precedent,

explicitly advised Davis that he had the sole discretion to determine whether he wished to testify

at trial. After being so advised, Davis still voluntarily declined to testify, and his attorney

confirmed that Davis’s waiver of his right was consistent with their earlier discussions.

       Regardless, Davis relies on Rock v. Arkansas to argue that the trial court unconstitutionally

impaired his ability to testify in his own defense. 483 U.S. at 56–62 (holding that a state-court

rule per se precluding the admissibility of all hypnotically refreshed testimony violated a

defendant’s right to testify). But a closer analog is the Supreme Court’s decision in Ohler v. United

States, 529 U.S. 753 (2000). There, the Court held that a district court’s decision allowing the

prosecution to impeach the defendant with her prior felony convictions did not “prevent [her] from


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No. 18-1955, Davis v. Larson


taking the stand and presenting any admissible testimony which she chooses,” and therefore, the

practice did not contravene the defendant’s right to testify in her own defense. Id. at 755, 759–60.

Like in Ohler, and contrary to Rock, the decision here to admit the other-acts evidence was neither

a per se prohibition on Davis’s testimony nor did it prevent him from “presenting any admissible

testimony which []he chooses.” Id. at 759. As the Supreme Court has held, “it is not thought

inconsistent with the enlightened administration of criminal justice to require the defendant to

weigh [the] pros and cons” of facing cross-examination when making the decision whether to

testify. Id. at 759–60 (quoting McGautha v. California, 402 U.S. 183, 215 (1971), vac’d in part

on other grounds by Crampton v. Ohio, 408 U.S. 941 (1972)). Therefore, the district correctly

determined that the trial court’s decision to admit the other-acts evidence for impeachment

purposes did not impair Davis’s constitutional right to testify.

       Finally, and even if the ruling of admissibility on Davis’s other-acts evidence raised our

concern, it appears that he has failed to adequately preserve this claim for appeal. In other words,

the posture of Davis’s claim presents the same defects the Supreme Court found impassable in

Luce v. United States, 469 U.S. 38 (1984). There the Court held that “to raise and preserve for

review the claim of improper impeachment with a prior conviction, a defendant must testify,”

because, otherwise, determining the prejudice resulting from the evidentiary determination is nigh

impossible. Id. at 43. Furthermore, “[b]ecause an accused’s decision whether to testify seldom

turns on the resolution of one factor, a reviewing court cannot assume that the adverse ruling

motivated a defendant’s decision not to testify.” Id. at 42 (internal quotation marks and citation

omitted). And here, Davis voluntarily decided not to testify at trial, leaving his claim unpreserved

for our review. In short, he has failed to show that he was denied his right to testify.




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No. 18-1955, Davis v. Larson


       Finding no cause for relief, it follows that the consistent Michigan Court of Appeals

decision, see Davis, 2012 WL 882244, at *1–2, cannot be “contrary to, or involve[] an

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

of the United States,” 28 U.S.C. § 2254(d)(1), as it must for Davis to overcome AEDPA’s high

bar. The district court properly denied Davis’s § 2254 petition.

                                                V.

       We affirm the judgment of the district court.




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