Troy Anthony Davis v. William Terry , 465 F.3d 1249 ( 2006 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-13371 U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
September 26, 2006
THOMAS K. KAHN
D. C. Docket No. 01-00290-CV-4
CLERK
TROY ANTHONY DAVIS,
Petitioner-Appellant,
versus
WILLIAM TERRY, Warden,
Georgia Diagnostic Prison,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(September 26, 2006)
Before DUBINA, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Troy Anthony Davis appeals the denial of his petition under 28 U.S.C.
§ 2254 for a writ of habeas corpus. Davis was convicted and sentenced to death
for crimes that occurred in two separate incidents on the same night. First, Davis
was convicted of shooting into a car on Cloverdale Drive in a subdivision of
Savannah, Georgia. Michael Cooper, who was sitting in the front passenger seat of
the car, was severely injured by a bullet that lodged in his right jaw. Davis was
also convicted of striking Larry Young in the head with a gun later that night in a
Savannah parking lot, and of fatally shooting police officer Mark Allen McPhail as
McPhail responded to the altercation.
Davis’ convictions and death sentence were affirmed by the Supreme Court
of Georgia. Davis v. State, 426 S.E.2d 844 (Ga. 1993). His state habeas court
petition for relief was denied in 1997, Davis v. Turpin, Civ. Action No. 94-V-162,
Order of Sept. 5, 1997 (entered Sept. 9, 1997), and the Supreme Court of Georgia
affirmed. Davis v. Turpin, 539 S.E.2d 129 (Ga. 2000). Davis then filed his federal
habeas petition, whose denial by the district court is the subject of this appeal.
Davis’ petition for habeas corpus is based essentially on his claim that newly
discovered evidence indicates both that he did not receive a fair trial and that,
under the standard set forth in Schlup v Delo, 513 U.S. 298 (1995), he is actually
innocent of murdering Officer McPhail. In Schlup, the Supreme Court described
two types of claims pertaining to actual innocence that might be made after trial.
First, the Court addressed the substantive claim of actual innocence, as asserted in
Herrera v. Collins, 506 U.S. 390 (1993), that execution of an innocent person
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violates the Eighth Amendment even if a conviction was the product of a fair trial.1
Second, the Court recognized the procedural claim, asserted by Schlup, that
conviction of an innocent person is constitutionally impermissible when the
conviction was the product of an unfair trial. The Court held that when a death-
sentenced prisoner makes a successful showing of actual innocence, procedural
default alone cannot bar consideration of his constitutional claims of an unfair trial.
In this case, Davis does not make a substantive claim of actual innocence.
Rather, he argues that his constitutional claims of an unfair trial must be
considered, even though they are otherwise procedurally defaulted, because he has
made the requisite showing of actual innocence under Schlup.2 Specifically, Davis
argues that:
1
The viability of this claim remains an open question as the Court did not reach it, finding that
Herrera had failed to make a “truly persuasive demonstration of ‘actual innocence.’” Herrera,
506 U.S. at 417.
2
To pass through the Schlup “gateway,” a petitioner’s new evidence must “establish sufficient
doubt about his guilt to justify the conclusion that his execution would be a miscarriage of
justice unless his conviction was the product of a fair trial.” Schlup, 513 U.S. at 316 (emphasis
in original). Establishing sufficient doubt of guilt does not, under Schlup, refer to the strict
“clear and convincing” standard of Sawyer v. Whitley, 505 U.S. 333 (1992), but rather the lesser
standard of Murray v. Carrier, 477 U.S. 478 (1986), which only requires a petitioner to “show
that it is more likely than not that no reasonable juror would have convicted him in the light of
the new evidence.” Schlup, 513 U.S. at 326-27. The Supreme Court painstakingly explained the
terms of the Carrier/Schlup standard. First, a habeas court cannot reject a petitioner’s claim
“solely because” there remains “sufficient evidence to support the jury’s verdict.” Id. at 331.
Instead, the court must “consider what reasonable triers of fact are likely to do.” Id. at 330. The
Court described a “reasonable” juror as one who fairly considers all of the evidence presented
and conscientiously obeys the instructions of the trial court requiring proof beyond a reasonable
doubt. See id. at 331. After articulating the appropriate standard, the Court remanded for an
evidentiary hearing to determine “the probative force” and reliability “of the newly presented
evidence in connection with the evidence of guilt adduced at trial.” Id. at 332.
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(1) The district court erred as a matter of law in declining to address
Davis’ claim of actual innocence by: (a) refusing to examine all of the
evidence of his actual innocence; (b) reaching Davis’ constitutional
claims before considering the gateway issue of his actual innocence;
(c) applying the standards of 28 U.S.C. § 2254(e)(2) to deny Davis an
evidentiary hearing on the question of his actual innocence; and (d)
failing to recognize that Davis has made a colorable showing of actual
innocence.
(2) The State violated Davis’ due process and fair trial rights by its
knowing use of material false evidence and by withholding material
exculpatory evidence.
(3) Trial counsel was constitutionally ineffective for failing to conduct
adequate pretrial investigation and for ineffectively representing
Davis at trial.
(4) Davis’ trial was fraught with procedural and substantive errors,
including Confrontation Clause violations, which in combination
deprived him of a fundamentally fair trial as guaranteed under the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution.3
DISCUSSION
Certainly, the threshold question in this case is whether Davis is entitled to
consideration of his claims of an unfair trial when, as he concedes, those claims are
3
We note at the outset that Davis provides no particular factual support for this claim other than
a very brief assertion of a Confrontation Clause violation. Specifically, he challenges a single
statement within Officer Lorenzo Brown’s testimony regarding a shell casing that linked the
murder of Officer McPhail to the Cloverdale shooting. Brown testified that he was given the
casing by a homeless man who claimed to have found it “on the lawn of the trust company
bank.” On appeal, Davis complains that he did not have the opportunity to confront the homeless
man, but he did not raise this argument in his habeas petition. The argument was not considered
by the district court and will not be considered here. See Thomas v. Crosby, 371 F.3d 782, 800
(11th Cir. 2004) (Tjoflat, J., specially concurring) (“[A]ppellant’s failure to press the argument
before the district court foreclosed its right to present it on appeal.” (quoting First Ala. Bank of
Montgomery, N.A. v. First State Ins. Co., 899 F.2d 1045, 1060 n.8 (11th Cir. 1990) (internal
quotation marks omitted)).
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procedurally defaulted for failure to present them to the state court.4 Davis
recognizes that, notwithstanding the procedural bar, the district court did consider
the merits of his constitutional claims and rejected them as a matter of law. He
nonetheless argues that the district court erred in declining to consider evidence of
his actual innocence and instead reached the merits of his constitutional claims.
Davis cannot prevail on this issue. As noted above, the procedural claim of actual
innocence under Schlup is permitted in order to assure consideration of
constitutional claims of an unfair trial where those claims have been procedurally
defaulted. Davis received precisely such substantive consideration. He cannot be
heard to complain that the test for achieving a desired result was not applied, or not
applied correctly, when the desired result was, in fact, obtained. Accordingly, we
now turn to the true gravamen of this appeal: the question of whether the district
4
None of Davis’ current claims of an unconstitutional trial were raised in the direct appeal of his
conviction. Thus, the state habeas court ruled that they were waived and procedurally barred
pursuant to Black v. Hardin, 336 S.E.2d 754, 754-55 (Ga. 1985). Because a federal habeas court
“will not review a question of federal law decided by a state court if the decision of that court
rests on a state law ground that is independent of the federal question and adequate to support the
judgment,” Coleman v. Thompson, 501 U.S. 722, 729-30 (1991), this Court is likewise
precluded from considering these constitutional claims. A petitioner may surmount this
procedural bar in one of two ways. First, the petitioner’s defaulted claims can be reviewed if he
can show cause excusing the default and prejudice arising therefrom. See Dretke v. Haley, 541
U.S. 386, 392-93 (2004). Second, because “[t]he cause and prejudice standard is not a perfect
safeguard against fundamental miscarriages of justice[,]” id. at 393, a petitioner may still obtain
review of his constitutional claims, even if he cannot show cause and prejudice, only if his case
“implicat[es] a fundamental miscarriage of justice.” Schlup, 513 U.S. at 314-15 (1995) (quoting
McCleskey v. Zant, 499 U.S. 467, 494 (1991)); Mincey v. Head, 206 F.3d 1106, 1136 (11th Cir.
2000). It would be considered a fundamental miscarriage of justice if “a constitutional violation
has probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at
327 (quoting Murray, 477 U.S. at 496) (internal quotation marks omitted).
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court erred in concluding that Davis’ constitutional claims of an unfair trial, as he
asserts them in this case, must be rejected as a matter of law.
Davis first argues that his constitutional right to a fair trial was violated
because the State knowingly presented false testimony which had been coerced by
the police to obtain his conviction. Specifically, Davis argues that the State
violated his Fourteenth Amendment right to due process by offering material
evidence that state agents knew to be coerced and false in violation of Giglio v.
United States, 405 U.S. 150 (1972). Davis also argues that the State failed to
provide him with exculpatory impeachment evidence of the coercive investigative
tactics used to obtain the false testimony in violation of Brady v. Maryland, 373
U.S. 83 (1963). Additionally, Davis argues that he was denied the effective
assistance of counsel guaranteed by the Sixth Amendment, citing trial counsel’s
failure to investigate possible police coercion of witnesses, to interview critical
eyewitnesses prior to trial, and to properly prepare for trial. We address each claim
in turn.
I. Giglio Claim
Giglio error, a species of Brady error, occurs when “the undisclosed
evidence demonstrates that the prosecution’s case included perjured testimony and
that the prosecution knew, or should have known, of the perjury.” Ventura v. Att’y
Gen., Fla., 419 F.3d 1269, 1276-77 (11th Cir. 2005) (quoting United States v.
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Agurs, 427 U.S. 97, 103 (1976)). In order to prevail under Giglio, Davis must
establish that: (1) the prosecutor knowingly used perjured testimony or failed to
correct what he subsequently learned was false testimony; and (2) such use was
material – i.e., that there is “any reasonable likelihood” that the false testimony
“could . . . have affected the judgment.” Giglio, 405 U.S. at 154; see also
Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir. 1999). Davis fails to meet
this standard.
The only Giglio argument actually asserted in Davis’ federal habeas petition
(as opposed to his appeal brief) is that the prosecution knowingly presented the
false testimony of Kevin McQueen and vouched for this allegedly false testimony.
But Davis fails to make any specific allegations tending to show that the
government knew McQueen’s statement to be false. At trial, the State introduced
McQueen’s sworn statement that, when the two were inmates together, Davis
confessed to the killing. In his present affidavit McQueen asserts that he “made up
the story about the confession” in order “to get even with” Davis after an
argument.
But as the district court correctly stated:
A showing of state misconduct requires, at a minimum, an allegation
that the State presented McQueen’s testimony while knowing it was
false. McQueen’s affidavit, accepted as truthful for the sake of
argument, shows only that McQueen, on his own and prompted by no
one else, sought to take out his anger against Petitioner by lying to a jail
warden, by making a false statement to a police officer, and by lying to
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the court and the jury when he testified that Petitioner confessed to
shooting Officer McPhail. McQueen did not present the affidavit
recanting his testimony until well after the trial had ended, and no
evidence has been presented to indicate that the State knew that his trial
testimony was false.
Based on this sole allegation regarding Kevin McQueen, Davis cannot support a
Giglio claim as a matter of law.
Although not referenced in his habeas petition, Davis did attach to his petition
the affidavits of other witnesses, which he now argues in his brief additionally
support his Giglio claim. We have carefully reviewed these affidavits and conclude
that, as a matter of law, they are insufficient to support a Giglio claim, either because
the assertions contained therein do not rise to the level of coercive police conduct,5 or
because there is no reasonable likelihood that the false testimony could have affected
the jury’s judgment.6 See United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir.
1995).
II. Brady Claim
To prevail on his Brady claim, Davis would have to prove that: (1) the
government possessed evidence favorable to him; (2) the defendant did not possess
the evidence and could not have obtained it with reasonable diligence; (3) the
5
For example, the “coercion” alleged in some affidavits goes no further than being “told” by the
police to sign a statement. In those affidavits, the affiant claims he did not read the statement at
the time he signed it but now claims that its contents were false.
6
For example, the allegation that D.D. Collins’ interrogation was coercive was raised at trial and
obviously did not impact the jury’s finding of guilt.
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government suppressed the favorable evidence; and (4) the evidence was material.
LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1268 (11th Cir. 2005) (citing
United States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989)). Davis alleges that the
State violated Brady by failing to disclose material exculpatory evidence concerning
Dorothy Ferrell – namely, that Ferrell, who testified against Davis at trial, had
contacted the district attorney’s office regarding the possibility of a favorable
disposition in an impending criminal action against her in exchange for her testimony
in Davis' case. Davis says this omission was material because Ferrell's testimony was
important in securing a guilty verdict against him.
At trial, Ferrell, who was staying in a hotel across the street from the murder
scene, testified on behalf of the State. She identified Davis as the shooter after her
memory was triggered by a picture of Davis on the seat of a police car. She then
picked Davis out of a five-person photographic line up and identified Davis at trial.7
After Ferrell testified, defense counsel’s wife received a phone call from a person
purporting to be Dorothy Ferrell saying that someone in the state attorney’s office
had told Ferrell they would help her if she testified in Davis’ case, and that Ferrell’s
testimony at Davis’ trial had been completely false. When defense counsel informed
the state attorney of the phone call, the state attorney revealed Ferrell’s written
7
Ferrell now claims that the police did not present her with a photographic line-up, but simply
showed her one photograph of Davis. However, as noted above, it was Ferrell herself who
initially and voluntarily identified Davis as the shooter.
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request for assistance in a criminal case in which she was a defendant. Her letter
stated that if the prosecutor would help, “I promise you, you will not be making a
mistake.” Recalled by the judge to explain, Ferrell denied making the phone call.
Though she admitted to writing the letter, she denied that the prosecutor helped her.
The judge then offered, and defense counsel declined, to recall Ferrell to the stand.
Because it is clear that the defense was aware at trial of Ferrell’s contact with
the state attorney’s office, there was no Brady violation. Moreover, this claim was
presented to the state habeas court, which found that “there was ‘no suppression of
any understanding or agreement for prosecutorial leniency and no grounds for
reversal.’” Because there was no clear and convincing evidence to the contrary, the
district court accepted the state habeas court's finding of fact that there was no
suppression of any understanding or agreement. Although the prosecution had an
obligation to advise defense counsel of Ferrell’s call, the state habeas court found that
the omission was not material, citing the defense team's reason for not calling Ferrell
back to testify once it found out about the call: “We weren't going to get very far with
this witness, simply because we had fairly impeached her on the issue of shoplifting.”
III. Ineffective assistance of counsel
Likewise, Davis cannot establish a successful claim of ineffective assistance of
counsel. Davis essentially argues that his counsel was ineffective because:
1. Counsel failed to contact Joseph Blige, who allegedly could have
furnished evidence that Davis had no fight with anyone at the Cloverdale
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party.
2. Counsel failed to ask defense witness Joseph Washington about the shirt
that Red Coles was wearing, information that would have been
exculpatory in light of other evidence presented to the jury.
3. Counsel failed to interview April Hester, who hosted the Cloverdale
party and saw Red Coles acting “nervous and upset” soon after
McPhail’s shooting.
4. Counsel failed to effectively impeach Larry Young, Harriet Murray, Red
Coles, and Stephen Sanders.
A successful claim under Strickland has “two components. First, the defendant
must show that counsel's performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Davis
fails, as a matter of law, to meet this standard. His counsel’s alleged instances of
misconduct, even if true, do not add up to a performance so deficient that it deprived
Davis of a fair trial. A review of the trial transcript reveals that Davis’ counsel were
fully prepared for trial and presented a viable defense: a case of mistaken identity.
Counsel extensively cross-examined the State’s witnesses to show that they were not
trustworthy and to raise doubt about the witnesses’ alleged observations of the
shooting. Counsel also presented significant testimony that Red Coles was the
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person who had committed the murder. Most importantly, none of the testimony
which Davis asserts counsel should have obtained would overcome the prejudice
requirement of Strickland in light of the totality of the evidence presented at trial.
Having very carefully considered this record, we cannot say that the district
court erred in concluding that Davis has not borne his burden to establish a viable
claim that his trial was constitutionally unfair.
AFFIRMED.
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