Davis v. Terry

• Decision Date: 26 September 2006
• Docket Number: No. 04-13371.,04-13371.
• Citation: 465 F.3d 1249
• Parties: Troy Anthony DAVIS, Petitioner-Appellant, v. William TERRY, Warden, Georgia Diagnostic Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

465 F.3d 1249

Troy Anthony DAVIS, Petitioner-Appellant, v. William TERRY, Warden, Georgia Diagnostic Prison, Respondent-Appellee.

No. 04-13371.

United States Court of Appeals, Eleventh Circuit.

September 26, 2006.

Kathleen A. Behan, Arnold & Porter, LLP, Washington, DC, for Davis.

Thomas H. Dunn, GA Resource Ctr., Susan V. Boleyn, State Law Dept., Atlanta, GA, for Terry.

Appeal from the United States District Court for the Southern District of Georgia.

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, 263 Ga. 5, 426 S.E.2d 844 (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, 273 Ga. 244, 539 S.E.2d 129 (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, 115 S.Ct. 851, 130 L.Ed.2d 808 (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, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), that execution of an innocent person 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 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 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 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, 92 S.Ct. 763, 31 L.Ed.2d 104 (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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (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, 92 S.Ct. 763; 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 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 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...