Davis v. Kemp

• Citation: 829 F.2d 1522
• Decision Date: 30 September 1987
• Docket Number: No. 83-8384,83-8384
• Parties: Freddie DAVIS, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellant, Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1522

829 F.2d 1522

Freddie DAVIS, Petitioner-Appellee, Cross-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellant, Cross-Appellee.

No. 83-8384.

United States Court of Appeals Eleventh Circuit.

Sept. 30, 1987.

Rehearing and Rehearing En Banc Denied Nov. 25, 1987.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant, cross-appellee.

Joseph M. Nursey, Millard C. Farmer, Atlanta, Ga., for petitioner-appellee, cross-appellant.

Appeals from the United States District Court for the Northern District of Georgia.

Before HILL and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit Judge.

HILL, Circuit Judge:

Ralph Kemp, Warden of the Georgia Diagnostic Center, appeals to this court from an order of the district court granting Freddie Davis' petition for a writ of habeas corpus, and thus prohibiting his execution unless the state holds a resentencing hearing within 180 days. Davis has filed a cross-appeal from the order of the district court denying relief as to the other grounds set forth in his petition. We affirm the order of the district court denying relief as to the grounds raised by Davis in his cross-appeal and reverse the order granting relief on the grounds addressed by the state's appeal.

Davis was indicted in Meriwether County, Georgia, on charges of murder and rape; at his trial in March 1977, the jury found him guilty of both crimes. At his sentencing hearing, the jury found an aggravating circumstance, see O.C.G.A. Sec. 17-10-30(b)(2), ¹ and the judge sentenced Davis to death for the murder and life imprisonment for the rape. Davis appealed his convictions and sentence to the Georgia Supreme Court. In February 1978, that Court upheld Davis' convictions but vacated his death sentence. See Davis v. State, 240 Ga. 763, 243 S.E.2d 12 (1978). At Davis' second sentencing hearing in May 1978, the jury found two statutory aggravating circumstances, see O.C.G.A. Sec. 17-10-30(b)(2) & (b)(7), ² and the judge sentenced Davis to death. Davis appealed to the Georgia Supreme Court, which affirmed the death sentence. See Davis v. State, 242 Ga. 901, 252 S.E.2d 443 (1979). The United States Supreme Court vacated the second death sentence and remanded the case to the Georgia Court for reconsideration in light of Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980). See Davis v. Georgia, 446 U.S. 961, 100 S.Ct. 2934, 64 L.Ed.2d 819 (1980). The Georgia Court reinstated the death sentence, see Davis v. State, 246 Ga. 432, 271 S.E.2d 828 (1980), and the Supreme Court denied certiorari. See Davis v. Georgia, 451 U.S. 921, 101 S.Ct. 2000, 68 L.Ed.2d 312 (1981). Davis then filed a petition for a writ of habeas corpus in state superior court. The state court denied this petition on February 5, 1982, and the Georgia Supreme Court denied Davis' application for a certificate of probable cause on March 24, 1982. The United States Supreme Court again denied certiorari. See Davis v. Georgia, 459 U.S. 891, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982).

On December 15, 1982, Davis filed a petition for a writ of habeas corpus in federal district court. The court denied this petition on December 20, 1982. Davis, with new counsel, filed various pleadings with the district court, which he characterized as amended petitions, ³ in an effort to raise new claims. Although the district court found the petitions to be successive and an abuse of the writ, on December 23, 1982, the court agreed to reconsider the case. On April 8, 1983, the court granted Davis the above-described partial relief.

This appeal was held in abeyance pending four en banc opinions affecting the outcome of this case. With the Supreme Court's denial of certiorari on March 2, 1987 in Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985) (en banc), vacated, 474 U.S 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), on remand, 802 F.2d 1293 (11th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987), the appeals in these four cases became final. Accordingly, we proceed to analyze the issues set forth in Davis' petition.

I

Davis raised three of his claims on appeal for the first time in his second federal habeas petition. ⁴ The state contends that the district court improperly considered Davis' second petition after finding it to be a successive petition and an abuse of the writ. We hold that, under the controlling case law, the district judge did not abuse his discretion in considering the issues raised in the successive petition in this case.

As the Supreme Court has stated, the district courts are responsible for

the just and sound administration of the federal collateral remedies, and theirs must be the judgment as to whether a second or successive application shall be denied without consideration of the merits. Even as to such an application, the federal judge clearly has the power--and, if the ends of justice demand, the duty--to reach the merits.

Sanders v. United States, 373 U.S. 1, 18-19, 83 S.Ct. 1068, 1078-79, 10 L.Ed.2d 148 (1963); see also Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 2625, 91 L.Ed.2d 364 (1986) ("the permissive language of Sec. 2244(b) gives federal courts discretion to entertain successive petitions under some circumstances"); Potts v. Zant, 638 F.2d 727, 741 (5th Cir. Unit B 1981). In his order, the district judge specifically cited Sanders and Potts. We thus conclude that, despite his decision that Davis had abused the writ, the district judge relied on the proper grounds in exercising his discretion, concluding that the "ends of justice" justified considering Davis' amended petition. See Sanders, 373 U.S. at 15, 83 S.Ct. at 1077. ⁵

II

The district court granted the writ because it found the closing argument of the prosecutor at Davis' sentencing hearing unconstitutional under our decision in Hance v. Zant, 696 F.2d 940 (11th Cir.1983). In Hance, the court found unconstitutional arguments made by the prosecutor which were similar to the arguments delivered in this case. The decision in Hance, however, has been largely overruled. Brooks v. Kemp, 762 F.2d 1383, 1399 (11th Cir.1985) (en banc), vacated on other grounds, --- U.S. ----, 106 S.Ct. 3325, 92 L.Ed.2d 732 (1986); see Drake v. Kemp, 762 F.2d 1449 (11th Cir.1985) (en banc), cert. denied, --- U.S. ----, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986); Tucker v. Kemp, 762 F.2d 1480 (11th Cir.1985) (en banc), vacated, 474 U.S. 1001, 106 S.Ct. 517, 88 L.Ed.2d 452 (1985), on remand, 802 F.2d 1293 (11th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987); Tucker v. Kemp, 762 F.2d 1496 (11th Cir.1985) (en banc).

Generally the court engages in a two step process in determining whether a habeas petitioner is entitled to relief based upon a prosecutor's arguments. First, we consider whether the prosecutor's arguments were improper. Second, we consider whether any arguments found improper were so prejudicial as to render the trial fundamentally unfair. As we noted in Brooks, 762 F.2d at 1400, "it is not our duty to ask whether a particular remark was unfair; we are concerned with whether it rendered the entire trial unfair." The Supreme Court has recently reaffirmed the standard to be employed in reviewing a prosecutor's argument:

The relevant question is whether the prosecutors' comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. De Christoforo, 416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431] (1974). Moreover, the appropriate standard of review for such a claim on writ of habeas corpus is "the narrow one of due process, and not the broad exercise of supervisory power." Id. at 642, 94 S.Ct. at 1871.

Darden v. Wainwright, 477 U.S. 187, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Applying this standard, we conclude that the prosecutor's closing arguments did not render Davis' trial fundamentally unfair.

Davis primarily attacks six portions of the prosecutor's arguments which he considers unconstitutional. During the sentencing phase, the prosecutor analogized the role of the jury and the role of soldiers fighting for their country:

I know it's difficult and an unpleasant thing. Nobody would like to recommend the death penalty for anybody else, but people, unfortunately, are faced with difficult times, having to do difficult things. Every one who goes into the armed services has a difficult duty. Oftentimes these men have to go into battle and fight and get killed although they might be opposed to the practice of killing. But, in order to protect our country and preserve it, keep it where it is and keep it free, they must occasionally go into battle and kill people. It's the same principal that applies here, and I submit, Freddie Davis and people like him are just as much as an enemy of this country as soldiers who have fought against this country in war. In fact, even more because these soldiers are fighting for their own country.

Freddie Davis has no such motives. His motives are self-motivations, greed, lust or what have you. Let's not feel sorry for Freddie Davis. There has been no evidence whatsoever presented by Freddie Davis to repute [sic] or dispute or rebute [sic] any evidence that we have submitted. The evidence that we have submitted must be taken as true because you have no other evidence presented to you. That's it.

In Brooks, we found improper an argument that was similar in some respects to the argument quoted above but was in other respects more egregious. We noted that "the analogy of the death penalty to killing in a war was appropriate insofar as it implied that imposing death, while difficult, is at times sanctioned by the state because of compelling reasons (national security or deterring crime)." 762 F.2d at 1412. We found the particular analogy drawn in Brooks to be improper, as it "undermine[d] the crucial discretionary element required by the Eighth Amendment." Id. at...