Davis v. Fla. Dep't of Corrs.

• Decision Date: 10 February 2022
• Docket Number: 19-CV-62779-RUIZ/STRAUSS
• Court: U.S. District Court — Southern District of Florida
• Parties: RALSTON G. DAVIS, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

RALSTON G. DAVIS, Petitioner,
v.
FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

No. 19-CV-62779-RUIZ/STRAUSS

United States District Court, S.D. Florida

February 10, 2022

REPORT AND RECOMMENDATION

Jared M. Strauss, United States Magistrate Judge

THIS CAUSE is before me on Ralston G. Davis' (“Petitioner's”) Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (DE 1) and Memorandum of Law in Support of Petition Filed Under 28 U.S.C. § 2254 (DE 1-2) (collectively, the “Petition”). Specifically, Petitioner challenges his conviction and sentence for three counts of first-degree murder on grounds of constitutional error and ineffective assistance of trial counsel. (DE 1; DE 1-2). This matter has been referred to me to take all action as required by law pursuant to 28 U.S.C. § 636(b)(1)(A) and the Magistrate Rules of the Local Rules of the United States District Court for the Southern District of Florida. (DE 20). I have carefully reviewed the Petition (DE 1; DE 1-2), the Response (DE 13; DE 14), the Reply (DE 19), and the record. Being otherwise duly informed, for the reasons further described below, I respectfully RECOMMEND that the Petition be DENIED.

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I. FACTUAL BACKGROUND

Petitioner reported being incarcerated at Tomoka Correctional Institution in Daytona Beach, Florida when he filed his Petition on November 7, 2019. (DE 1; DE 1-2). According to the summary of facts in Respondent's Response, on November 30, 2005, Petitioner purchased a semi-automatic AR-15 .223 caliber assault rifle and two magazines from Randy Reddick for $900.00. (DE 13 at 6) (citing DE 15-2 at 113-15, 131-32).^[1] Reddick had known Petitioner for about three years and often saw Petitioner around the neighborhood; he thought Petitioner was a nice person. (DE 15-2 at 127-128). During the sale, and again the next afternoon to evening, Reddick saw Petitioner acting calm and collected. (Id. at 119-20, 128-29, 132). Between 10:00 and 10:15 p.m. on December 2, 2005, Jerry Nicholson, who was working his barbeque stand by the Exxon Station at the intersection of Sunrise Boulevard and 31st Avenue, saw someone stopped in the intersection despite having a green light. (Id. at 359-60). The driver jumped out of the car, got on top of the car, and started shooting in the air. (Id. at 360-62). Although Nicholson could not identify the shooter, police found total of nine shell casings in the intersection that were later identified as having been fired from Petitioner's gun. (Id. at 348-51, 383-88). Farrah Cyprien and Labrent Gray, who were both working at the barbeque stand, and John Diggs, who was watching television and drinking beer in his truck at the station, also heard these shots. (Id. at 231, 235, 370,

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738-40). Police from several agencies responded to multiple reports of shots fired near the intersection, but the shooter was gone before their arrival. (Id. at 81-82, 272, 452-53).

Earlier that same evening, Myosha Proby had dinner and watched a movie in her apartment with Hermione Harrell. (Id. at 149-50). After the movie, Harrell started to take a shower to get ready to go out to a club with another friend, and Proby asked Harrell for her phone to call Petitioner. (Id. at 150-51). Harrell had gone out on a date with Petitioner a couple of months before. (Id. at 147). She introduced Proby to Petitioner the same night, when Proby wanted to buy cocaine. Harrell knew Petitioner sold cocaine but never saw him use it. (Id. at 147-48, 167-69).^[2] When Harrell got out of the shower, she saw that Proby was upset. (Id. at 151). Proby told Harrell that Petitioner was upset, and Harrell listened to Petitioner on the phone yelling and “fussing” at someone else. (Id. at 151). Harrell heard Petitioner say “come out” to someone. (Id. at 150-51). As Harrell was watching, Proby mouthed the words Petitioner was saying to her on the phone. (Id. at 153). Proby relayed to Harrell that Petitioner told her he was going to come and kill her. (Id.). Harrell suggested Proby call the police, but the evidence does not indicate that Proby did. (Id. at 152.). Harrell tried to call Petitioner and sent a text to Petitioner for him to call her. (Id. at 153.) Petitioner did not answer the call or reply to the text. (Id.). Instead, he arrived at the apartment about fifteen (15) minutes later. (Id. at 153-54).

Jason Rolle observed Petitioner arrive at Proby's apartment complex. (Id. at 142). Petitioner stopped his car near the entrance to the building, came up behind Rolle, and then walked past him to a second-floor apartment. (Id. at 142-44). Rolle saw that Petitioner was bleeding from the nose and mouth as though he had been in a fight. (Id. at 137-139). Petitioner climbed the stairs

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with his rifle, one clip inserted and an extra clip in hand, and looked serious, angry, and totally focused as he walked. (Id. at 144-145). At the apartment door, Petitioner cocked the rifle before he banged on the door. (Id. at 137). When Rolle saw that, he immediately went back downstairs. (Id.). Minutes later, Rolle heard gunshots. (Id. at 138).

Harrell heard someone knocking on the door about fifteen (15) minutes after Proby finished her phone call with Petitioner. (Id. at 154, 171). When Proby opened the door, Harrell saw Petitioner in the open doorway, carrying a rifle at his side and dressed in all black. (Id. at 154, 171-72). From the look of his eyes, it appeared as though he had been smoking or drinking; he also had a slight stagger and was unsteady on his feet when he came in. (Id. at 156).

Once inside the apartment, Petitioner started yelling, “You set me up, you set me up.” Proby kept saying “that wasn't my brother”; Petitioner responded that he knew and continued accusing her of setting him up. (Id. at 155-156). Next, Petitioner ordered Proby to “get the f*** down.” (Id. at 157). When Proby got on her knees and folded her arms with her back turned to Petitioner, Petitioner started shooting. (Id.). As Petitioner shot her, Proby collapsed to the floor near the coffee table. (Id. at 158). Petitioner went around the table and got on top of it as he continued to shoot her over twenty (20) times. (Id. at 174). Although Petitioner never paid attention to Harrell, she got up during the shooting and jumped from the second-floor balcony, and hid in the laundry room until the police arrived. (Id. at 158-59, 174-75).

About twenty to thirty minutes after the initial shooting, multiple witnesses observed Petitioner return to the intersection of Sunrise Boulevard and 31st Avenue, pull into the Exxon station lot, and jump out of the car with a rifle. (Id. at 363-65, 371-73, 519, 742-43). Petitioner was playing loud music in his car. (Id. at 506). Petitioner approached Ravindra Basdeo as Basdeo sat in his car and shot him. (Id. at 516-19). Petitioner was angry and was shouting and cursing at

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Basdeo. (Id. at 288-90; 507-08; 519). Cyprien testified to hearing “tapping sounds” while in the BBQ truck and saw Petitioner standing at the window of the car that Basdeo was driving. (Id. at 229-234). Other customers told Cyprien that there was shooting, so Cyprien exited the BBQ truck. (Id.). When Cyprien returned to the front of the truck, she saw that Basdeo was dead in the car. (Id.).

Petitioner later told his parents that Basdeo cut him off so he “follow[ed] him in a gas station; [he] ma[d]e him open his mouth, ” and he murdered him. (Id. at 1059-1060). A psychologist testified that Petitioner told him that he followed Basdeo to the gas station, put his rifle into Basdeo's mouth and pulled the trigger, killing him. (Id. at 585, 416-17, 426, 571, 592).

Petitioner then turned around toward Diggs in his truck, approached, and started talking to Diggs. (Id. at 743-44). Petitioner told Diggs that “somebody played him out” or “done him wrong.” (Id. at 743-44). Diggs knew Petitioner because Diggs accompanied the mother of a victim to a trial where Petitioner appeared as an eye-witness. (Id. at 757-58). Petitioner turned his attention away from Diggs when Carlos Jones walked out of the convenience store. (Id. at 744).

Jones's girlfriend, Jennifer Josephson, testified that Jones had entered the Exxon convenience store to purchase snacks for a movie. (Id. at 255-56). Just as Petitioner approached Diggs' truck, Jones came out of the convenience store, and Petitioner grabbed him. (Id. at 744-45). Petitioner told Jones, “Don't run or I'm going to kill you.” (Id. at 744). Ruben Hamm testified that he saw two people outside the convenience store - one dark-skinned and one light-skinned and one with a black rifle and one with a shopping bag. (Id. at 726, 729-34). Hamm walked out of the way when he saw the rifle but heard gunshot noises and then saw someone on the ground. (Id.). Diggs testified that Petitioner put his left arm around Jones' neck and shoulder and walked Jones back toward the store. (Id. at 745). Petitioner told Jones to get down or

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Petitioner would kill him. (Id.). Jones was cooperative and got to his knees. (Id. at 746). Once Jones was on his knees, Petitioner shot him multiple times and walked casually back to his car as sirens were heard indicating that police were arriving. (Id. at 511-12, 514-15, 520, 746, 755-57).^[3]

After Petitioner threw the gun into his car, he took off fast. (Id. at 748-50). Petitioner passed the police cruisers as they were entering the Exxon station. (Id. at 513, 520, 749-50). People reported to law enforcement that they observed Petitioner hold his rifle out of his driver's side window when he drove through the Sunrise Boulevard and 31st Avenue intersection going east; pursuing police officers later observed the same thing. (Id. at 283-84, 452-54, 838). Officer Hagerty, while riding with her Partner, Officer Jenkins, saw Petitioner sticking his upper body outside the window. (Id. at 468-69, 836). At one point, Petitioner drove his car into a strip mall parking lot; but, as...