Davis v. Bradshaw

• Decision Date: 16 June 2016
• Docket Number: CASE NO. 1:14CV2854
• Parties: IAN DAVIS, aka Benson Davis, Petitioner, v. MARGARET BRADSHAW, Respondent.
• Court: U.S. District Court — Northern District of Ohio

IAN DAVIS,aka Benson Davis, Petitioner, v. MARGARET BRADSHAW, Respondent.

CASE NO. 1:14CV2854

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION

June 16, 2016

JUDGE BOYKO

MAGISTRATE JUDGE VECCHIARELLI

REPORT AND RECOMMENDATION

This 28 U.S.C. § 2254 petition is before the undersigned magistrate judge pursuant to Fed. R. Civ. P. 72(a) & (b), Local Rule 72.2(a), and 28 U.S.C. § 636(b)(1)(A) and (B). (Doc. No. 31.) Before the court is the petition of Ian Davis, also known as Benson Davis ("Davis" or "Petitioner"), for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the cases of State of Ohio vs. Davis, Case Nos. 91CR40924 and 93CR43666 (Lorain County September 22, 1994). For the following reasons, the magistrate judge recommends that the petition be DENIED.

I. Introduction

The state appellate court that affirmed Davis' conviction noted the following facts:

On August 8, 1991, the body of Marsha Blakely was found in an alley behind the Westgate Plaza in Lorain. Blakely appeared to be the victim of several different types of assaults. She had numerous cuts and bruises on her body, her throat had been slashed, and she had been run over by a car. The police investigation stalled until a reward was offered. At this time, William Avery, Jr. came forward and made a statement to police that implicated Davis, among others, in the death of Blakely. Davis was indicted for the assault and murder of Blakely.

* * *

Avery gave the following testimony at trial. Davis and some of his associates from New York sold drugs in the Lorain housing projects. Avery often purchased crack cocaine from these drug dealers. On one occasion Avery was fronted some crack by Al Monday, the leader of the New York group. Avery was to sell the crack and then pay Monday. Avery, however, got behind in paying Monday back. Avery then offered to "beat somebody up" to pay off his $3,000 to $4,000 drug debt to Monday.

On August 7, 1991, Monday attempted to take advantage of Avery's services. Avery accompanied Monday to the apartment of Floyd Epps, where Blakely was staying. Davis and three other men were waiting outside the apartment when Monday and Avery arrived. Once all six men were inside the apartment, Monday asked Avery "to beat Marsha up." Avery refused because he knew her too well. As a result, Davis and the other men began beating Blakely themselves. During the assault, a man known as Shakeme repeatedly asked Blakely, "Where's my shit at?" Avery assumed that he was referring to money or drugs.

Blakely tried to defend herself, and in the process she hit one of the men, Lenworth Edwards, in the face. Edwards grabbed his nose, which was bleeding, and stepped away, but the other three kept on beating her until she was unconscious. Davis then grabbed Blakely by the arm and dragged her, face down, to a car in the parking lot. Edwards and two others got into the car with Blakely and Davis, while Avery and Monday got into a second car. The two cars were driven to an alley behind Westgate Plaza, where a man known as Justice was waiting in a third car. Blakely was dragged out of the car. Justice began swinging a shiny object at Blakely. Fearing for his life, Avery ran away.

Davis claims Avery's testimony is unreliable because of the circumstances surrounding his decision to testify about the assault and murder of Blakely. A review of the record reveals that after a reward was offered, Avery's father originally approached the police with information concerning Blakely's murder. The police, however, told him that they were looking for an eyewitness to the crime. Avery then came forward as a witness. Avery made a statement to the police, implicating Davis and his associates in the assault and murder of Blakely. The police arrested Lenworth Edwards, who was later indicted for assault and aggravated murder.

On the day of Edward's trial, Avery stated that he was not going to testify unless he received $10,000. The prosecutor would not agree to pay Avery any more money, so Avery refused to testify. The trial court heldAvery in contempt, and ordered that he be incarcerated in the county jail until he agreed to testify. Avery later returned to the courtroom, testified that he had lied to the police and recanted his testimony. Avery claimed that he made everything up in order to collect the reward money. As a result, the trial court granted Edwards' motion for a mistrial.

At Edward's second trial, Avery took the witness stand and explained that his original statements which implicated Edwards were in fact true. He further explained that he had perjured himself during the first trial because he had been threatened by Edwards while in the county jail. Avery proceeded to testify, describing in detail how Edwards had participated in the assault and murder of Blakely. Edwards was convicted on both charges. We affirmed the convictions in State v. Edwards (Dec. 16, 1992), Lorain App. Nos. 92CA005345 & 92CA005346. The police used the information provided by Avery to identify and arrest Davis.

State v. Davis, 1996 WL 121998 at * 1-2 (Ohio App. 9^th Dist. March 20, 1996).

II. Prior State and Federal Court Proceedings

A. Trial Court Proceedings

In September 1991, Davis was indicted by a Lorain County Court of Common Pleas Grand Jury on one count of felonious assault in violation of Ohio Rev. Code § 2903.11(A)(1) in connection with the August 1991 assault and murder of Marsha Blakely. (Doc. No. 12-1, Exh. 1.) Over a year later, in April 1993, Davis was indicted on one count of aggravated murder in violation of Ohio Rev. Code § 2903.01(A), also in connection with Ms. Blakely's death.¹ (Id. at Exh. 2.)

Davis pled not guilty to both charges. (Id. at Exhs. 3, 4.) In September 1994, he entered a Notice of Intention to Claim Alibi, alleging that, at the time set forth in the indictments, he was in New York with his family. (Id. at Exh. 5)

As noted above, Davis' conviction was based in large part on the testimony of William Avery, Jr. ("Avery"), who told police that he witnessed Davis and three other men (Alfred Cleveland aka "Al Monday," Lenworth Edwards, and John Edwards) assault Ms. Blakely at the apartment of Floyd Epps on the night of August 7, 1991. (Doc. No. 12-6, Exh. 91.) Avery also testified at the trials of Cleveland, Lenworth Edwards, and John Edwards.

Davis' case proceeded to jury trial on September 19, 1994. (Doc. No. 12-6.) Witnesses included Avery, Lorain Police Detectives Richard Resendez and Geno Taliano, Lenworth Edwards, and Davis. (Id.) On September 22, 1994, a jury found Davis guilty as charged. (Doc. 12-1, Exhs. 6,7.) Following a sentencing hearing on September 22, 1994, the state trial court sentenced Davis to a term of 8 to 15 years incarceration on the felonious assault charge, to be served consecutive to a sentence of life in prison with parole eligibility after twenty (20) years on the aggravated murder charge. (Id. at Exhs. 8-10.)

B. Direct Appeal

Davis, through new counsel, filed a direct appeal, in which he asserted the following assignments of error:

I. THE EVIDENCE SUBMITTED AT TRIAL DOES NOT SUPPORT THE JUDGMENTS OF CONVICTION.

A. THE JUDGMENTS OF CONVICTION ARE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

B. THE JUDGMENTS OF CONVICTION OF FELONIOUS ASSAULT AND AGGRAVATED MURDER ARE CONTRARY TO LAW AND TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND ARTICLEI, SECTION 16 OF THE OHIO CONSTITUTION, IN THAT THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO ESTABLISH EACH AND EVERY ELEMENT OF THE OFFENSES BEYOND A REASONABLE DOUBT.

II. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHTS OF DUE PROCESS AND ASSISTANCE OF EFFECTIVE COUNSEL AS GUARANTEED TO HIM BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY SECTIONS 10 AND 16 OF ARTICLE I OF THE CONSTITUTION OF THE STATE OF OHIO.

A. COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO OBJECT TO THE TESTIMONY OF THE PATHOLOGIST AND SEROLOGIST ON THE BASIS THAT THEIR TESTIMONY WAS NOT BASED ON FACTS IN EVIDENCE WHEN PRESENTED.

B. COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN CALLING ALLEGED CO-DEFENDANT, LENWORTH EDWARDS, TO TESTIFY.

(Doc. No. 12-1, Exhs. 11, 12.) Of particular relevance here, the basis of Davis' first ground for relief was that "the only material witness [i.e., Avery] is wholly unreliable and . . . no direct evidence links Appellant with the murder or assault of Marsha Blakely." (Id. at Exh. 12, Page ID# 618.) The State filed a brief in opposition on October 10, 1995. (Id. at Exh. 13.)

The Court of Appeals for the Ninth District of Ohio ("state appellate court") affirmed Davis' convictions and sentences on March 20, 1996. With regard to Davis' argument regarding Avery's reliability, the state appellate court found as follows:

Although Avery did change his story several times, he offered a plausible explanation for his inconsistencies. The determination of the credibility of witnesses and the weight to be afforded their testimony is for the trier-of-fact. State v. Tyler (1990), 50 Ohio St.3d 24, 32. Furthermore, the prosecution presented additional testimony which tends to corroborate Avery's account of what happened the evening Blakely was murdered.

The deputy coroner testified that Blakely died as a result of her throat being slashed. He further testified that she also had a broken neck and damage to her chest cavity, and that these injuries were consistent with being run over by a car. He noted that Blakely would have died from these wounds as well. The autopsy also revealed scrapes and bruises on her head, which could have resulted from being dragged on the ground.

A witness [Delphenia Guice] testified that she knew Davis and indicated that he sold drugs along with the other members of the New York drug ring. The witness further testified that [Lenworth] Edwards had asked

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