Davis v. Kelley

• Decision Date: 17 April 2017
• Docket Number: No: 17-1806,: 17-1806
• Citation: 855 F.3d 833
• Parties: Don William DAVIS Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

855 F.3d 833

Don William DAVIS Appellant
v.
Wendy KELLEY, Director, Arkansas Department of Correction Appellee

No: 17-1806

United States Court of Appeals, Eighth Circuit.

Filed April 17, 2017

Deborah Ruth Sallings, Scott Braden, Assistant Federal Public Defender, Federal Public Defender's Office, Little Rock, AR, E. Alvin Schay, Litle Rock, AR, for Petitioner-Appellant

Don William Davis, Pro Se

Kelly Hook Fields, Mark Lunsford Pryor, Attorney General's Office, Little Rock, AR, Jeffrey Weber, Bryant, AR, for Defendant-Appellee

SMITH, Chief Judge, SHEPHERD and KELLY, Circuit Judges.

ORDER

PER CURIAM.

Death row inmate Don William Davis moves for a stay of his execution scheduled for April 17, 2017, at 7:00 p.m., pending full briefing and argument of his appeal from the district court's denial of his Federal Rule of Civil Procedure 60(b) motion. We deny his motion for stay.

"[A] stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts." Hill v. McDonough , 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). "[I]nmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits." Id. .... A movant must present evidence to show a significant possibility of success on the merits of his claim. Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam).

Johnson v. Lombardi , 809 F.3d 388, 390 (8th Cir.), cert. denied , ––– U.S. ––––, 136 S.Ct. 601, 193 L.Ed.2d 480 (2015).

Davis sought relief from judgment pursuant to Rule 60(b) to obtain a merits ruling on his procedurally defaulted ineffective-assistance-of-trial counsel claim. That claim asserts that trial counsel rendered ineffective assistance at the penalty phase in violation of the Sixth Amendment by failing to present a witness to evaluate and explain Davis's admitted school and institutional records. He also asserts Davis's counsel failed to present other witnesses in mitigation. The district court denied relief, but granted a certificate of appealability on the issue.

A Rule 60(b) motion is a second or successive habeas corpus application if it contains a claim. For the purpose of determining whether the motion is a habeas corpus application, claim is defined as an "asserted federal basis for relief from a state court's judgment of conviction" or as an attack on the "federal

855 F.3d 835

court's previous resolution of the claim on the merits." Gonzalez [v. Crosby] 545 U.S. [524,] 530, 532 [ (2005) ], 125 S.Ct. 2641 [162 L.Ed.2d 480]. "On the merits" refers "to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d)." Id. at 532 n. 4, 125 S.Ct. 2641. When a Rule 60(b) motion presents a claim, it must be treated as a second or successive habeas petition under AEDPA.

No claim is presented if the motion attacks "some defect in the integrity of the federal habeas proceedings." Id . at 532, 125 S.Ct. 2641. Likewise, a motion does not attack a federal court's determination on the merits if it "merely asserts that a previous ruling which precluded a merits determination was in error—for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar." Id . at n. 4.

Ward v. Norris , 577 F.3d 925, 933 (8th Cir. 2009).

Davis challenges the district court's prior determination that his claim was procedurally defaulted. He...