Davis v. United States

• Decision Date: 18 April 2012
• Docket Number: No. 11–1694.,11–1694.
• Citation: 673 F.3d 849
• Parties: Marcus Q. DAVIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

673 F.3d 849

Marcus Q. DAVIS, Appellant,
v.
UNITED STATES of America, Appellee.

No. 11–1694.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 9, 2012.Filed: March 14, 2012.Rehearing and Rehearing En Banc Denied April 18, 2012.*

[673 F.3d 850]

Jeffrey M. Lipman, Lipman Law Firm, P.C., Clive, IA, for appellant.

Shannon L. Olson, Asst. U.S. Atty., Des Moines, IA (Nicholas A. Klinefeldt, U.S. Atty., on the brief), for appellee.

Before WOLLMAN, LOKEN, and GRUENDER, Circuit Judges.

[673 F.3d 851]

WOLLMAN, Circuit Judge.

Marcus Davis was convicted of one count of malicious use of fire causing personal injury and death, in violation of 18 U.S.C. § 844(i). He was sentenced to 360 months' imprisonment, and his conviction and sentence were affirmed on direct appeal. United States v. Davis, 534 F.3d 903 (8th Cir.2008), cert. denied, 555 U.S. 1201, 129 S.Ct. 1388, 173 L.Ed.2d 639 (2009). Davis sought habeas corpus relief under 28 U.S.C. § 2255, claiming that he received ineffective assistance of counsel at trial. The district court ¹ denied his petition. We affirm.

I.

The facts of this case are fully set forth in our opinion in Davis's direct appeal. See Davis, 534 F.3d at 906–11. Following are the facts relevant to the habeas appeal now before us. On March 6, 2000, a fire started at 845 Cross Park Avenue, an apartment building in Iowa City, Iowa. One resident of the building died as a result of the fire and another suffered serious burns. Police determined that the fire had been set intentionally, and they investigated the case for more than five years before Davis and Stephen Edwards were indicted in September 2005.

The evidence presented at the joint trial was largely circumstantial, with the exception of two incriminating statements, one by each defendant. The evidence showed that the fire was the culmination of an ongoing altercation between Davis and Jan Ballew, who lived in the apartment building and had repeatedly reported Davis to the police because of the volume of his music. Davis was not a resident of the burned apartment building, but his music was evidently audible to at least some of the building's residents. Joyce O'Neal testified that Davis had said to her, “I didn't mean for it—I didn't mean for it to happen like this. I was only trying to scare the old lady because every time our music—we would turn our music up, she would always call the police on us.” Davis, 534 F.3d at 910. Betty Jo Thompson testified that Edwards had said to her, “It wasn't to hurt anybody, to murder anybody. It wasn't to kill anybody. It was to get someone to come out of the house.” Id.

These statements were used as part of a visual display during the prosecution's closing argument without objection from Davis's counsel. As we recounted in Davis's direct appeal:

Both defendants filed a motion in limine to prevent the government from using statements attributed to one defendant against the nondeclarant codefendant. The district court stated that it “anticipates that the government will elicit testimony carefully to ensure that statements made by one defendant do not reference the non-declarant co-defendant.” The district court permitted defense counsel to object to the admission of statements attributed to one of the defendants and allowed defense counsel to make the strategic choice whether they wanted to object at every opportunity or to object the first time a statement was admitted in the course of each witness's testimony. Defense counsel chose to object once per witness and to have the limiting instruction repeated at that time.

During the government's rebuttal closing argument, the prosecutor stated, “ladies and gentlemen, they even confessed to it.” The prosecutor then displayed

[673 F.3d 852]

a demonstrative aid, which he referred to as “Exhibit K,” even though it had not been admitted as a trial exhibit, and had not been published to defense counsel as required by the local rules. The aid consisted of a power point slide that showed side-by-side statements attributed to each of the defendants.

Davis, 534 F.3d at 910–911. The statements displayed were Davis's statement to O'Neal and Edwards's statement to Thompson. As the prosecutor finished his argument he said, “The government has proven beyond a reasonable doubt that Marcus Davis set a gasoline fire on the third floor of 845 Cross Park to scare the old lady. And Stephen Edwards was right there helping him. ‘It wasn't meant...