565 F.3d 810 (11th Cir. 2009), 08-16009, In re Davis

Docket Nº:08-16009.
Citation:565 F.3d 810
Party Name:In re: Troy Anthony DAVIS, Petitioner.
Case Date:April 16, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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565 F.3d 810 (11th Cir. 2009)

In re: Troy Anthony DAVIS, Petitioner.

No. 08-16009.

United States Court of Appeals, Eleventh Circuit.

April 16, 2009

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[Copyrighted Material Omitted]

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Thomas H. Dunn (Court-Appointed), GA Resource Ctr., Atlanta, GA, Jason C. Ewart, Danielle Garten, Arnold & Porter, LLP, Washington, DC, for Davis.

Susan V. Boleyn, State Law Dept., Atlanta, GA, for Appellee.

Stephen L. Ascher, Jenner & Block, LLP, New York City, Kathleen A. Behan, Washington, DC, for Amici Curiae.

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Application for Leave to File a Second or Successive Habeas Corpus Petition, 28 U.S.C. § 2244(b).

Before DUBINA, BARKETT and MARCUS, Circuit Judges.


On October 22, 2008, Troy Anthony Davis (" Davis" ), a Georgia death row inmate, filed an application with this Court seeking authorization to file a second or successive 28 U.S.C. § 2254 federal habeas petition, raising for the first time a freestanding actual innocence claim. Davis had previously filed a federal habeas petition in the United States District Court for the Southern District of Georgia in 2001, alleging, among other things, violations of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Davis now claims that his execution would violate the Eighth and Fourteenth Amendments because he is actually innocent of the offense of murder. We took the unusual step of staying Davis's execution, which had been scheduled for October 27, 2008, and ordered the parties to submit further briefs. Thereafter, we scheduled the case for oral argument. Having the benefit of the parties' briefs and after hearing extensive oral argument, we deny Davis's application.


A Georgia jury convicted Davis for the murder of Savannah police officer Mark Allen MacPhail in the early morning hours of August 19, 1989, and for two other offenses. The trial court sentenced him to death for the murder conviction. The Supreme Court of Georgia affirmed Davis's convictions and death sentence. Davis v. State, 263 Ga. 5, 426 S.E.2d 844, cert. denied, 510 U.S. 950, 114 S.Ct. 396, 126 L.Ed.2d 344 (1993). Thereafter, in 1997, the state trial court denied his state habeas corpus petition for relief, and in 2000, the Supreme Court of Georgia affirmed the denial of Davis's petition. Davis v. Turpin, 273 Ga. 244, 539 S.E.2d 129 (2000), cert. denied, 534 U.S. 842, 122 S.Ct. 100, 151 L.Ed.2d 59 (2001). Davis then filed his first federal habeas corpus petition on December 14, 2001, raising a number of constitutional violations, including: (1) that the prosecution knowingly presented false testimony at his trial, in violation of Giglio ; (2) that the prosecution failed to disclose material exculpatory evidence, in violation of Brady ; and (3) that his trial counsel was constitutionally ineffective, in violation of Strickland. Because Davis failed to raise these constitutional claims before the state court, he sought to overcome his procedural default of these claims by showing under Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), that he should be able to raise these claims anyway because he was actually innocent of the underlying murder.1 The district court did not rule on his actual innocence claim, instead reaching the merits of his constitutional claims and denying his petition.

Notably, Davis did not raise a substantive freestanding claim of actual innocence in his first federal habeas petition. During

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the proceedings, however, Davis moved the district court to stay the federal habeas proceedings in order for him to present a freestanding actual innocence claim to the state courts. In April 2004, the district court denied Davis's stay request.

After the district court denied Davis's habeas corpus petition, we affirmed. Davis v. Terry, 465 F.3d 1249, 1256 (11th Cir.2006), cert. denied, __ U.S. __, 127 S.Ct. 3010, 168 L.Ed.2d 728 (2007). We held that Davis failed to sustain a Brady or Giglio violation, and he did not establish a violation of the Sixth Amendment right to the effective assistance of counsel. And we made clear in our opinion that Davis had " not ma[d]e a substantive claim of actual innocence." Id. at 1251.

In 2007, the state trial court set a new execution date. Soon thereafter, Davis filed an extraordinary motion for new trial, presenting newly discovered evidence in support of his motion. See Ga.Code Ann. § 5-5-41 (1995 & Supp. 2008); Dick v. State, 248 Ga. 898, 899, 287 S.E.2d 11, 13 (1982) (indicating that affidavits in support of an extraordinary motion for new trial include " facts sufficient to authorize that the motion be granted if the facts developed at the hearing warrant such relief" ); Timberlake v. State, 246 Ga. 488, 491, 271 S.E.2d 792, 795-96 (1980) (indicating that newly discovered evidence must be so material that it probably would result in a different verdict). This evidence consisted of: (1) seven affidavits containing recantations of eyewitnesses who testified at trial; (2) three affidavits averring post-trial confessions to the murder by another man, Sylvester " Red" Coles (hereinafter " Red Coles" ); (3) several affidavits of persons who had not previously testified who were either present at the scene of the murder or in the general area immediately following the crime; (4) two expert affidavits addressing ballistic evidence and eyewitness identifications; (5) affidavits of jurors; and (6) a general cache of additional affidavits.

Based on this evidence, Davis claimed that to apply Georgia's procedures for an extraordinary motion for a new trial in a manner that allows for his execution would be unconstitutional. The state trial court " exhaustively reviewed each submitted affidavit and considered in great detail the relevant trial testimony, if any, corresponding to each." State v. Davis, No. CR89-2467-FR, at 3 (Ga.Super.Ct. July 13, 2007). It observed that the majority of the affidavits that Davis submitted had been sworn over five years earlier, and a few had been attested to over ten years earlier. The state trial court concluded that some of the affidavits contained inadmissible hearsay, that the post-trial affidavits by some of the State's witnesses did not constitute cause for a new trial, and that several affidavits were not so material that they would have produced a different result. The state court ultimately denied the motion.

Davis then filed an application for discretionary appeal and a motion for a stay of execution in the Supreme Court of Georgia. While the application was pending, Georgia's State Board of Pardons and Paroles granted a temporary stay of execution and scheduled its own hearing. See Ga.Code Ann. § 42-9-39(d) (1987 & Supp. 2008) (granting Georgia's State Board of Pardons and Paroles " authority to pardon any person convicted of a crime who is subsequently determined to be innocent of said crime" ); § 42-9-42(a) (requiring majority vote of Georgia's State Board of Pardons and Paroles for a grant of clemency, pardon, parole, or other relief from sentence). The Supreme Court of Georgia dismissed Davis's motion for stay of execution as moot and granted his application

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for discretionary appeal. Davis v. State, 282 Ga. 368, 368, 651 S.E.2d 10, 10 (2007).

Thereafter, in a comprehensive opinion, the Supreme Court of Georgia affirmed the trial court's order denying Davis's extraordinary motion for new trial. Davis v. State, 283 Ga. 438, 660 S.E.2d 354 (2008). In affirming, the supreme court began by noting the lack of credibility that is generally afforded to recantation testimony, explaining that " [t]rial testimony is closer in time to the crimes, when memories are more trustworthy[, and] ... the trial process itself, including public oaths, cross-examination, and the superintendence of a trial judge, lends special credibility to trial testimony." Id. at 441, 660 S.E.2d at 358. The supreme court nonetheless painstakingly detailed each of the seven post-trial affidavits by the State's eyewitnesses, as well as six affidavits from additional witnesses Davis located, and explained how each affidavit failed to support Davis's extraordinary motion for a new trial. Id. at 441-47, 660 S.E.2d at 358-63. Among these affidavits were three eyewitnesses who had identified Davis at trial as the officer's shooter, and who Davis claimed had recanted their trial testimony: Antoine Williams, Dorothy Ferrell, and Harriet Murray. After detailing these post-trial affidavits, among others, the supreme court pointed to several defects in them, including the fact that Williams's and Ferrell's affidavits failed to affirmatively claim that Davis was not guilty, and that Murray's unsworn affidavit was yet another inconsistent statement she had made years after the murder. The supreme court determined that none of the affidavits had the materiality required to support an extraordinary motion for a new trial.

The Supreme Court of Georgia concluded this way:

Particularly in this death penalty case where a man might soon be executed, we have endeavored to look beyond bare legal principles that might otherwise be controlling to the core question of whether a jury presented with Davis's allegedly-new testimony would probably find him not guilty or give him a sentence other than death. In that spirit, we have chosen to focus primarily on one of the required showings for an extraordinary motion for new trial, the requirement that the new evidence be " so material that it would probably produce a different verdict." In weighing this new evidence, we do not ignore the testimony presented at trial, and, in fact, we favor that original testimony over the new. At least one original witness has never recanted his...

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