Davis v. Coyle

• Citation: 475 F.3d 761
• Decision Date: 29 January 2007
• Docket Number: No. 02-3227.,02-3227.
• Parties: Von Clark DAVIS, Petitioner-Appellant, v. Ralph COYLE, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

475 F.3d 761

Von Clark DAVIS, Petitioner-Appellant, v. Ralph COYLE, Warden, Respondent-Appellee.

No. 02-3227.

United States Court of Appeals, Sixth Circuit.

Argued: December 8, 2005.

Decided and Filed: January 29, 2007.

ARGUED:

Alan M. Freedman, Midwest Center for Justice, Ltd., Evanston, Illinois, for Appellant. Michael L. Collyer, Office of the Attorney General, Cleveland, Ohio, for Appellee.

ON BRIEF:

Alan M. Freedman, Midwest Center for Justice, Ltd., Evanston, Illinois, Laurence E. Komp, Attorney at Law, Manchester, Missouri, for Appellant. Michael L. Collyer, Office of the Attorney General, Cleveland, Ohio, for Appellee.

Before DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

DAUGHTREY, J., delivered the opinion of the court, in which COLE, J., joined GIBBONS, J. (pp. 781-83), delivered a separate opinion concurring in the judgment.

OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

The petitioner, Von Clark Davis, was convicted of aggravated murder and sentenced to death by a three-judge panel in Ohio state court. The Ohio Court of Appeals affirmed his conviction and sentence, but the state supreme court vacated the sentence and remanded the case to the trial court for resentencing. After refusing to permit Davis to introduce new evidence at the rehearing, the same three-judge panel again imposed the death penalty, finding that because of his criminal history and "explosive personality disorder," Davis would not be deterred from future criminal conduct by a life sentence. Following his unsuccessful appeal of the second sentencing order, Davis filed a petition for a writ of habeas corpus in federal court, contending, among other things, that his rights under the Eighth and Fourteenth Amendments to the United States Constitution had been violated when he was denied the opportunity to present evidence of his good behavior in prison during the five years he had spent on death row between the first and second sentencing hearings. Because the decisions in the Ohio courts rejecting this contention and upholding the sentencing order were both contrary to and unreasonable applications of the rule announced by the United States Supreme Court in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), we reverse the district court's denial of relief and grant the petitioner a conditional writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1984, a three-judge panel convicted Davis of capital murder in the death of Suzette Butler, and the Ohio Court of Appeals affirmed the conviction on direct appeal. See State v. Davis, No. CA84-06-071, 1986 WL 5989 (Ohio Ct.App. May 27, 1986) (Davis I). As part of its review, the Ohio Supreme Court provided the following statement of facts with regard to Davis's conviction:

At approximately 7:40 p.m. on December 12, 1983, officers of the Hamilton Police Department arrived at the scene of a shooting at American Legion Post 520 (hereinafter "the Legion").... Lying on the pavement approximately six feet outside the front door of the Legion was the deceased victim, Suzette Butler. An autopsy performed the following day by the county coroner revealed that Butler had died as a result of multiple gunshot wounds to the left side of her head. One of the entrance wounds suggested that the muzzle of the murder weapon was within four to twenty inches of the victim's head at the time the weapon was fired.

On the day of the shooting, Butler met her friend, Mona Aldridge, at the Legion sometime between 5:00 p.m. and 6:30 p.m. Appellant, Von Clark "Red" Davis, arrived shortly thereafter, and eventually sat at a table with Butler and Aldridge. Apparently, [Davis] and Butler had cohabited for several months, but had recently separated. After a brief period of time, [Davis] and Butler arose from the table and walked out the front door. Prior to leaving, Butler told Aldridge that she would be "right back" and asked Aldridge to watch her jacket, cigarettes and drink. Several minutes later, a concerned Aldridge went to the front door of the Legion to look for Butler. Aldridge opened the door slightly and discovered [Davis] pointing a gun at Butler's head. Aldridge panicked and went back inside the bar. Momentarily, others followed her into the bar saying that someone had been shot.

The shooting was witnessed by Reginald Denmark and Cozette Massey. The couple had been on a walk observing Christmas lights. As they were walking, they saw a man and a woman talking in front of the Legion. The man and woman did not appear to be arguing. Two shots rang out. As the woman (later identified as Butler) fell, another shot was fired. Finally, "... after she was down, he bent down and shot her in the head." Both Massey and Denmark ultimately identified [Davis] as the person who shot Butler.

It was later established that on the day of Butler's murder, [Davis] had sought out Mark "Poppa" Lovette to "do him a favor" in exchange for sixty dollars. Along with a third party, Wade Coleman, a.k.a. Hank Stokes, [Davis] drove Lovette to a pawn shop and gave him money to purchase a handgun. Lovette purchased a Raven P.25 semi-automatic handgun and gave it to [Davis]. [Davis] again gave money to Lovette and had him purchase shells for the gun at a K Mart store. Lovette was then dropped off. [Davis] subsequently discovered that the K Mart shells did not fit the weapon. Lovette was picked up again, the shells were returned to K Mart, and [Davis] drove Lovette to a local gun shop. Lovette purchased a box of PMC .25 automatic shells and gave them to [Davis]. [Davis] then loaded the gun in the presence of Lovette and Coleman and placed the gun under the driver's seat of his car. Late that afternoon, Lovette and Coleman were dropped off separately.

State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925, 926-27 (Ohio 1988) (Davis II).

At trial, Davis did not present either a heat of passion or a provocation defense. Instead, his counsel attempted to point out inconsistencies in the accounts of the shooting offered by state witnesses, and Davis also testified on his own behalf, maintaining that he had purchased the murder weapon as part of an exchange with "Silky Carr," a Kentuckian whom Davis asserted had been Butler's drug dealer. He also claimed that Butler owed "Silky Carr" money and "that he left `Carr' and Butler talking in front of the Legion on the night of the murder." Id. at 927 n. 5.

The Ohio Supreme Court affirmed Davis's convictions but vacated his sentence because the three-judge panel had improperly considered non-statutory aggravating circumstances during the penalty phase of the proceedings. See id. at 931-36. The court also considered for the first time whether to apply its holding in State v. Penix, 32 Ohio St.3d 369, 513 N.E.2d 744 (Ohio 1987), that a capital defendant whose death sentence is vacated on appeal following a jury verdict is ineligible to be resentenced to death, to defendants tried before a three-judge panel. The court declined to extend the holding in Penix and thus concluded that Davis was eligible to be resentenced to death. See Davis II, 528 N.E.2d at 936.

On remand, the same three-judge panel that originally convicted and sentenced Davis again imposed the death sentence upon the petitioner. Relying solely upon the record from the first sentencing hearing, the panel found that the only remaining, applicable aggravating factor—that Davis had been previously convicted of second-degree murder—outweighed the mitigating factors present beyond a reasonable doubt. The Ohio Court of Appeals affirmed this sentence as well, see State v. Davis, No. CA89-09-123, 1990 WL 165137 (Ohio Ct.App. Oct. 29, 1990) (Davis III), as did the Ohio Supreme Court. See State v. Davis, 63 Ohio St.3d 44, 584 N.E.2d 1192 (Ohio 1992) (Davis IV).

In 1993, Davis filed a petition for post-conviction relief in the state trial court and was granted an evidentiary hearing on a single issue—an alleged judicial conflict of interest. Relief was ultimately denied, however, by the Butler County Court of Common Pleas, the Ohio Court of Appeals affirmed the decision, see State v. Davis, No. CA95-07-124, 1996 WL 551432 (Ohio Ct.App. Sept. 30, 1996), and the Ohio Supreme Court denied further review. See State v. Davis, 77 Ohio St.3d 1520, 674 N.E.2d 372 (Ohio 1997). Similarly, Davis's attempts to obtain relief pursuant to an application to reopen his direct appeal in the Ohio Court of Appeals, under Ohio Appellate Rule 26(B), were unsuccessful.

Meanwhile, in April 1997, Davis filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging 28 grounds for relief. In December 1997, the district court concluded that ten of Davis's claims had been procedurally defaulted. The district court subsequently granted Davis's motion to amend his petition by adding 14 issues but later concluded that the additional issues were also procedurally barred. Ultimately, the district court also held that the remaining 18 issues were either defaulted or without merit, denied habeas relief, and dismissed Davis's § 2254 petition. The court did grant a certificate of appealability on 18 issues, and, at the petitioner's request, we certified one additional question.

On appeal, Davis has now abandoned several of those certified questions. Most of the remaining issues present challenges to the process of the petitioner's resentencing, including his contentions that he should have been allowed to withdraw his jury waiver prior to resentencing because it had been involuntarily entered at the time of his original trial, that it was error to deny his requests both for the appointment of additional experts and to introduce new mitigation evidence, that the three-judge panel should not have separated during deliberations, and that the Ohio Court of Appeals did not review adequately on direct appeal either his original sentence or the reimposed sentence. Davis also challenges the district court's determination that...