Davis v. Executive Director of Dept. of Corrections, Civ. A. No. 94-Z-1931.

• Decision Date: 28 June 1995
• Docket Number: Civ. A. No. 94-Z-1931.
• Citation: 891 F. Supp. 1459
• Parties: Gary Lee DAVIS, Petitioner, v. EXECUTIVE DIRECTOR OF the DEPARTMENT OF CORRECTIONS, as head of the Department of Corrections, Ari Zavaras, Respondent.
• Court: U.S. District Court — District of Colorado

891 F. Supp. 1459

Gary Lee DAVIS, Petitioner, v. EXECUTIVE DIRECTOR OF the DEPARTMENT OF CORRECTIONS, as head of the Department of Corrections, Ari Zavaras, Respondent.

Civ. A. No. 94-Z-1931.

United States District Court, D. Colorado.

June 28, 1995.

COPYRIGHT MATERIAL OMITTED

Gary Lee Davis, Canon City, CO, pro se.

Dennis W. Hartley, Dennis W. Hartley, P.C., Colorado Springs, CO, Michael G. Katz, Vicki Mandell-King, Federal Public Defenders Office, Denver, CO, for Gary Lee Davis.

Robert M. Petrusak, Atty. General's Office, Gen. Legal Services Section, Denver, CO, Steven L. Bernard, County Attys. Office, Robert S. Grant, Dist. Attys. Office, Brighton, CO, for Colorado Dept. of Institutions.

ORDER

WEINSHIENK, Judge.

This matter is before the Court on Gary Davis' Petition For Writ Of Habeas Corpus. The Court has reviewed fully the trial and appellate proceedings in the Colorado state court system, and has considered the additional evidence submitted by petitioner. The Court is satisfied that petitioner's rights were fully protected at trial and that counsel more than adequately represented petitioner at trial. Therefore, the Petition For Writ Of Habeas Corpus will be denied, for the reasons more fully set forth below.

I. BACKGROUND

Petitioner Gary Davis and his ex-wife, Rebecca Fincham, were charged in the kidnapping, sexual assault, and murder of Virginia May. In 1987, Davis was found guilty of murder in the first degree after deliberation, murder in the first degree (felony murder), conspiracy to commit first degree murder, second degree kidnapping, and conspiracy to commit second degree kidnapping. In addition, he admitted to four counts of being a habitual criminal. Davis was sentenced to a single life sentence on his convictions for all counts except first degree murder. He was sentenced to death for the first degree murder conviction.

Although he raised no challenge to the judgment of convictions on his direct appeal, he challenged the validity and constitutionality of his death sentence on numerous grounds. The Colorado Supreme Court affirmed Davis' convictions and death sentence in May 1990. People v. Davis, 794 P.2d 159 (Colo.), modified on denial of reh'g, (1990), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991) (Davis I).

Thereafter, Davis filed a motion for post-conviction relief pursuant to Colo.R.Crim.P. 35(c) on January 14, 1991, alleging that his trial counsel, Craig Truman, was ineffective in the penalty phase. In his motion, Davis made the following assertions: there was no trust between the attorney and his client; Truman failed to employ a psychiatrist to assist in repairing the relationship; he failed to employ a mitigation specialist to develop mitigating evidence; he failed to investigate fetal alcohol syndrome, and the effects of Davis' severe alcoholism; he failed to employ a psychiatric expert to explain the bizarre relationship between Fincham and Davis and her influence upon him; and he failed to present evidence concerning Davis' childhood, broken home, and the abuse he suffered.

A hearing was scheduled for February 19, 1991. On February 13, Davis moved for a continuance, attaching three affidavits to his motion. The request was denied, but the trial court gave counsel sixty days in which to reopen upon the filing of affidavits, and conducted the hearing on February 19, 1991.

On February 27, 1991, the trial court denied Davis' claim of ineffective assistance of counsel. The court found that counsel investigated background witnesses and employed two investigators; that counsel believed these witnesses "would do more harm than good;" that counsel's decision not to present evidence with respect to alcoholism was based on counsel's view that alcoholism is not a mitigating circumstance, and a doctor's report that alcoholism was not a factor in Davis' actions; that the prosecution could have countered mitigation with more damaging information; that the closed head injury evidence was a red herring; and that counsel made a tactical decision not to attack the prior convictions in order to argue to the jury that society would be protected from the defendant who could receive two life sentences.

On April 10, 1991, Davis appealed to the Colorado Court of Appeals and also filed a verified motion to reopen evidence in the trial court (within the 60 days ordered by the trial court). Davis moved in the Court of Appeals for a limited remand, which was granted on May 21, 1991, for the trial court to conduct a hearing based upon Davis' offer of proof. The trial court denied the motion to reopen evidence without conducting any further hearing.

The trial court's denial of relief was affirmed by the Colorado Court of Appeals in People v. Davis, 849 P.2d 857, 861 (Colo.App. 1992) (Davis II). The Court of Appeals perceived no error in the trial court's findings as to sufficient evidence, and as to the decision to avoid unfavorable information. They stressed that counsel presented the testimony of two favorable witnesses, and determined that the lower court did not abuse its discretion in failing to grant the motion to reopen.

The Colorado Supreme Court affirmed in Davis v. People, 871 P.2d 769 (Colo.1994) (Davis III). Thereafter, this Court granted Petitioner's Motion For Stay Of Execution on August 22, 1994, and set a hearing for March 1, 1995. At that hearing, the Court heard mitigation testimony from four family members regarding Davis' positive influence in their lives, and oral argument on all issues except the ineffective assistance of counsel. The Court granted petitioner until April 3, 1995, to submit additional mitigation evidence relating to his alcoholism and relative accomplice culpability defense, and to have video taped depositions taken of various other family members. The Court conducted oral argument on the ineffective assistance of counsel claim on April 13, 1995.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

The first argument made by Davis is that trial counsel provided him with ineffective assistance during his closing argument and in the investigation and presentation of mitigating evidence. Davis further asserted that he was entitled to an evidentiary hearing in order to enable the Court to review the various types of mitigating evidence and testimony that would have been available at the time of Davis' trial in 1987.

The Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel. ..." U.S. Constitution, amend. VI. "The Supreme Court has long `recognized that the "right to counsel is the right to effective assistance of counsel"' under the Sixth Amendment." Osborn v. Shillinger, 861 F.2d 612, 624 (10th Cir.1988) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984)). The Court of Appeals for the Tenth Circuit has recently held that "this right extends to a capital sentencing hearing." Brecheen v. Reynolds, 41 F.3d 1343, 1365 (10th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 2564, 132 L.Ed.2d 817 (1995) (citing Harris v. Dugger, 874 F.2d 756, 762 (11th Cir.), cert. denied, 493 U.S. 1011, 110 S.Ct. 573, 107 L.Ed.2d 568 (1989)).

To prevail on a Sixth Amendment claim of ineffective assistance of counsel, Davis must show first that "counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064. In proving that trial counsel was ineffective, Davis must overcome the "strong presumption" that trial counsel's conduct falls within the "wide range of reasonable professional assistance that `might be considered sound trial strategy.'" Brecheen, 41 F.3d at 1365. It is essential to emphasize that petitioner's claim "must be reviewed from the perspective of counsel at the time," Porter v. Singletary, 14 F.3d 554, 558 (11th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994), because "a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Finally, in reviewing a claim of ineffective assistance, the Court must "address not what is prudent or appropriate, but only what is constitutionally compelled." United States v. Cronic, 466 U.S. 648, 665 n. 38, 104 S.Ct. 2039, 2050 n. 38, 80 L.Ed.2d 657 (1984).

"If constitutionally deficient performance is shown," Brecheen, 41 F.3d at 1365, then Davis must demonstrate that "there is a `reasonable probability' that the outcome would have been different had those errors not occurred." U.S. v. Haddock, 12 F.3d 950, 955 (10th Cir.1993). The second prong of the test requires that the Court evaluate the sentencing process in order to effectively analyze the prejudicial effects, if any, that trial counsel's performance played on the sentence rendered in the case. Addressing this specific issue, the Tenth Circuit has held:

In the specific context of a challenge to a death sentence, the prejudice component of Strickland focuses on whether "the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death."

Brecheen, 41 F.3d at 1365 (citing Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69). "In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury." Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. A verdict with overwhelming support in the record is less likely to have been affected by errors than one that is only weakly supported by the record. Id. at 696, 104 S.Ct. at 2069.

Davis argues that he was deprived of his Sixth Amendment Right to the effective assistance of counsel in the penalty phase of his case, and in the guilt phase as it bears upon the penalty phase. The Court finds that Davis' arguments fail to prove that Craig...