Davenport v. Hooper
| Docket Number | Civil Action 22-1277 |
| Decision Date | 25 May 2023 |
| Parties | TYRONE DAVENPORT v. TIM HOOPER, WARDEN |
| Court | U.S. District Court — Eastern District of Louisiana |
REPORT AND RECOMMENDATION
This matter was referred to the undersigned United States Magistrate Judge to conduct a hearing, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2). For the following reasons, IT IS RECOMMENDED that the petition for habeas corpus relief be DISMISSED WITH PREJUDICE.
Petitioner Tyrone Davenport, is a convicted inmate currently incarcerated at the Louisiana State Prison in Angola Louisiana. On August 14, 2013, Davenport and seven others were charged by bill of indictment in Orleans Parish with various criminal offenses committed while members of the “Taliban” gang.[1] On June 19, 2015, after a joint trial, both Davenport and co-defendant Dale Elmore were found guilty of racketeering in violation of La. Rev. Stat. § 15:1353, second-degree murder of Ralph Bias in violation of La. Rev. Stat. § 14:30.1 and La. Rev. Stat. § 15:1403(B), and attempted second-degree murder of Corey Martin in violation of La. Rev. Stat. §§ 14:(27)30.1 and 15:1403(B).[2] On October 21, 2015, Davenport was sentenced to 50 years at hard labor without the benefit of parole, probation or suspension of sentence for racketeering, and life at hard labor without the benefit of parole, probation or suspension of sentence for second-degree murder with an additional 50 years for the gang enhancement provision to be served consecutively to the sentences for racketeering and second-degree murder.[3]Davenport was also sentenced to 50 years at hard labor without the benefit of parole, probation or suspension of sentence for attempted second-degree murder with an additional 25 years without benefits for the gang enhancement provision to be served consecutively to the sentences for racketeering and second-degree murder.[4] The state district court denied Davenport's motion for reconsideration of sentence.[5]
On direct appeal, Davenport's appointed counsel asserted the following claims: (1) insufficient evidence supported the convictions; (2) the trial court gave erroneous jury instructions regarding attempted second-degree murder; (3) the trial court permitted a climate of fear at trial which resulted in an inflammatory and prejudicial atmosphere that negatively impacted the verdict and ultimately violated his due process rights to a fair trial; (4) the prosecution's closing was improper.[6] Davenport filed a pro se brief in which he argued that the trial court exceeded its jurisdiction in proceeding to trial on the charges against him because the record did not reflect that the indictment was returned in open court as required by La. Code Crim. P. art. 383.[7] On October 18, 2017, the Louisiana Fourth Circuit affirmed Davenport's conviction and amended his sentences on the racketeering and gang enhancement provision convictions to delete the prohibition of parole.[8]
On March 9, 2018, the Louisiana Supreme Court denied as untimely Davenport's pro se related writ application.[9] The Louisiana Supreme Court denied Davenport's motion for reconsideration on May 25, 2018.[10] On October 8, 2018, the Louisiana Supreme Court denied Davenport's counseled related writ application without reasons.[11]
On January 3, 2020, Davenport filed a pro se application for post-conviction relief with the trial court.[12] In that application, he asserted that: (1) his trial counsel was ineffective in failing to investigate and interview witnesses; (2) his trial counsel was ineffective for failing to preserve his rights under Bruton v. United States, 391 U.S. 123 (1968), and Douglas v. Alabama, 380 U.S. 415 (1965); (3) his counsel was ineffective in allowing hearsay testimony in the form of 911 recorded calls in violation of Davis v. Washington, 547 U.S. 813 (2006), and Bullcoming v. New Mexico, 564 U.S. 647 (2011); (4) his trial counsel was ineffective in failing to request a mandatory mistrial under La. Code Crim. P. art. 770 after the trial court ruled that the prosecution could introduce inadmissible evidence, and his appellate counsel was ineffective in failing to raise the issue on appeal; (5) his rights under the Fourteenth Amendment were violated when the authorities destroyed material evidence.[13]
Davenport filed a counseled supplemental memorandum claiming: (1) his trial counsel was ineffective in failing to bring the counternarrative to the jury's attention that witnesses claimed that the shooters fired from and fled in a Bronco; (2) the State destroyed evidence; (3) trial counsel was ineffective in failing to request a limiting instruction and move for a mistrial when the trial court allowed the introduction of a co-defendant's statements into evidence; (4) trial counsel was ineffective in failing to protect against the prosecution's racist troupes and inflammatory antics.[14] On August 3, 2020, the State filed a procedural objection pursuant to La. Code Crim. P. art. 930.4 to Davenport's claim relating to the destruction of evidence.[15] Davenport filed a traverse.[16] The State filed a reply.[17]
The state district court held a hearing on September 10, 2020.[18] The state district court overruled the State's procedural objections to Davenport's destruction-of-evidence claim and ordered the State to file a response on the merits of Davenport's application.[19]
The State filed a writ application with the Louisiana Fourth Circuit Court of Appeal.[20] On November 17, 2020, the Louisiana Fourth Circuit denied the writ application.[21] The Louisiana Supreme Court denied the State's related writ application on March 9, 2021.[22]
The State responded to Davenport's destruction-of-evidence claim on June 15, 2021.[23]On July 20, 2021, the state district court declined to summarily deny that claim and ordered the State to respond to Davenport's other claims.[24]The State filed its response as to the other claims on September 21, 2021.[25] Davenport filed a reply memorandum on October 5, 2021.[26] The state district court denied Davenport's post-conviction claims on October 12, 2021.[27]
The Louisiana Fourth Circuit denied Davenport's counseled related writ application on February 14, 2022.[28] On April 26, 2022, the Louisiana Supreme Court denied Davenport's related writ applications finding he failed to show ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U.S. 668 (1984), and he failed to show that the State withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).[29]
The Louisiana Fourth Circuit denied Davenport's supplemental writ application on February 25, 2022.[30] The Louisiana Supreme Court denied his related writ application without reasons on April 26, 2022.[31]
In the interim, Davenport filed two pro se motions alleging that the jury verdict violated Ramos v. Louisiana, 140 S.Ct. 1390 (2020).[32] On March 10, 2022, the state district court denied the motions, finding that they were untimely under La. Code Crim. P. art. 930.8.[33] The Louisiana Fourth Circuit denied Davenport's related writ application on May 17, 2022.[34]
On April 25, 2022, Davenport filed a pro se application for habeas corpus relief.[35] In that application, Davenport claims: (1) ineffective assistance of counsel for failing to locate and subpoena two eyewitnesses who witnessed the shootings; (2) ineffective assistance of counsel for failing to preserve his rights at trial under Bruton; (3) ineffective assistance of counsel in allowing 911 calls to be played at trial without objection or cross-examination; (4) ineffective assistance of trial counsel for failing to request a mistrial after the trial court allowed inadmissible evidence and ineffective assistance of appellate counsel for failure to raise the issue on appeal.
On May 20, 2022, the Court received Davenport's supplemental application for habeas corpus.[36] On June 21, 2022, the Court granted Davenport's counsel leave to supplement the pro se petition with a supplemental memorandum that addressed the claims in Davenport's pro se application in more detail and included a claim that the State destroyed exculpatory evidence, specifically, a photograph of the suspect vehicle taken by a witness.[37] The State contends that Davenport's petition is untimely.[38] Alternatively, the State contends that Davenport failed to exhaust his claim of ineffective assistance of appellate counsel for failing to raise on appeal trial counsel's failure to request a mistrial, and that that claim is technically procedurally defaulted.[39] It argues that Davenport's remaining claims are meritless.[40] Davenport filed a reply claiming that his fund withdrawal request for postage for his application for post-conviction relief occurred on April 25, 2022, and that is the date that should be used as the filing date.[41]
The record facts as succinctly summarized by the Louisiana Fourth Circuit on direct appeal established the following:
The record shows that Mr. Martin has had multiple encounters with Defendants, which took place both before and after the January 2011 incident. Mr. Martin reported that in 2007-after the murder of his brother-he became a target of violence. He said the people who killed his brother are related to Mr Davenport. According to Mr....
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