Davis v. Johnson

• Decision Date: 01 August 2014
• Docket Number: Case No. 3:11-cv-0613
• Court: U.S. District Court — Middle District of Tennessee
• Parties: PHEDREK T. DAVIS Petitioner, v. DEBRA JOHNSON, Warden Respondent.

PHEDREK T. DAVIS Petitioner, v. DEBRA JOHNSON, Warden Respondent.

Case No. 3:11-cv-0613

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

August 1, 2014

Judge Campbell

MEMORANDUM OPINION

Petitioner Phedrek T. Davis, a prisoner in state custody at Turney Center Industrial Complex, has filed a pro se petition under 28 U.S.C. § 2254 for a writ of habeas corpus (ECF No. 1), as amended by two supplemental filings (ECF Nos. 43, 48). The respondent has answered in opposition to the petition, and has filed a complete copy of the underlying state-court record. The petition is ripe for review. For the reasons set forth herein, petition will be DENIED and this action DISMISSED with prejudice. Petitioner's motion for evidentiary hearing (ECF No. 61) will accordingly be DENIED.

I. PROCEDURAL BACKGROUND

On June 23, 2005, the petitioner was found guilty by a Davidson County Jury of: (1) first degree premeditated murder; (2) misdemeanor assault, and (3) attempted second degree murder. On August 31, 2005, the petitioner was sentenced to life imprisonment for first degree murder, with a consecutive fifteen year sentence for attempted murder and concurrent 11 month 29 day sentence for assault. (ECF No. 36-1, at 81- 83.) His conviction and sentence were affirmed on direct appeal. State v. Davis, No. M2006-00198-CCA-R3-CD, 2007 WL 2051446 (Tenn. Ct. Crim. App. July 19,2007) ("Davis 1"); State v. Davis, 266 S.W.3d 896 (Tenn. 2008), cert. denied, 577 U.S. 906 (2009) ("Davis 2").

Thereafter, the petitioner filed a pro se petition in the state court for post-conviction relief. (ECF No. 36-17, at 37-94.) The trial court summarily denied the petition. (ECF No. 36-17, at 95-96.) That decision, including the decision not to appoint counsel, was affirmed on appeal. Davis v. State, No. M2009-01616-CCA-R3-PC, 2010 WL 1947379 (Tenn. Ct. Crim. App. May 14, 2010), perm. appeal denied (Tenn. Nov. 10, 2010) ("Davis 3").

While petitioner's post-conviction petition was pending, he filed a pro se petition for writ of error coram nobis. (ECF No. 36-22, at 37-115). The trial court dismissed the petition (ECF No. 36-22, at 128-130), and was affirmed on appeal. Davis v. State, M2009-02310-CCA-R3-CO, 2010 WL 3270015 (Tenn. Ct. Crim. App., Aug. 19, 2010) ("Davis 4"). Petitioner then filed a second petition for writ of error coram nobis. (ECF No. 36-26, at 4-13). The trial court dismissed the petition (ECF No. 36-26, at 14-15) and was again affirmed on appeal. Davis v. State, M2011-01366-CCA-R3-CO, 2012 WL 3017806 (Tenn. Crim. App., July 23, 2012) ("Davis 5").

While his second petition for writ of error coram nobis was pending, Petitioner Davis filed his petition under 28 U.S.C. § 2254 in this Court on May 23, 2011. (ECF No. 1, at 40 (date of petitioner's signature)). On the petitioner's motion, the Court held this matter in abeyance pending final resolution of his state court case and reopened the matter on August 16, 2012. (ECF No. 23). Respondent filed an answer on September 26, 2013. (ECF No. 53.) The petition is timely, and this Court has jurisdiction.

On May 28, 2013, Petitioner filed a document styled "Petitioner's Supplement to His Writ of Habeas Corpus" raising three claims of ineffective assistance of counsel (ECF No. 43), which the Court construed as a motion to amend the petition and retroactively granted on June 20, 2013. (ECFNo. 44.) On July 3, 2013, Petitioner filed a second document styled "Petitioner's Supplement to His Writ of Habeas Corpus" raising five more claims of ineffective assistance of counsel. (ECF No. 48.) The Court presumed this to be the product of a misunderstanding by Petitioner of the Court's June 20 Order, and retroactively granted the second amendment by Order entered May 2, 2014, but expressly stated that the amendment being granted was the second supplement that was already in the record and instructed Petitioner that he was not to file any additional supplements without prior leave of Court. (ECF No. 55.)

In the same Order, the Court required Respondent to file an amended answer to include a response to Petitioner's supplemental claims and to account for the impact of Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014). Respondent complied with a comprehensive amended answer filed June 2, 2014. (ECF No. 60.)

Disregarding the Court's express instruction, on May 6, 2014, Petitioner filed a third document styled "Petitioner's Supplement to His Writ of Habeas Corpus," offering thirty-two pages of what he describes as an "amended petition in order to add a subpoint to his ineffective assistance of counsel claim." (ECF No. 57, at 2.) The document does not contain any request for leave to amend and does not offer any explanation for why the proffered bases for relief could not have been included in the original petition three years ago or either of the two amendments already permitted. See Foman v. Davis 371 U.S. 178, 182 (1962) (noting that valid reasons to deny an amendment include undue delay and repeated failure to cure deficiencies by amendments previously allowed). As Petitioner did not actually move to amend his petition for a third time to include this "subpoint," and the Respondent has already filed her answer to the petition as previously amended (ECF No.60), the Court does not consider this latest filing by Petitioner as part of the pleadings in this case.¹

II. STATEMENT OF FACTS

The Tennessee Supreme Court summarized the testimony presented during trial as follows:²

This case arises out of the shooting death of Susan Phelps on August 21, 2003, as she stood inside her apartment in Nashville, Davidson County, Tennessee.

Mr. Eula Beasley testified that he had known the victim two to three months prior to her death and had visited her apartment "a lot." On the day of the shooting, Mr. Beasley was at the victim's apartment along with several other people. Because the electricity was out in the apartment, the victim had run an extension cord from the Defendant's apartment to hers. According to Mr. Beasley, the Defendant (appellant Phedrek T. Davis) saw the victim coming out of his apartment and accosted her on the sidewalk. Mr. Beasley was standing next to the victim when this occurred. The Defendant slapped her across her face and said, "bitch, I'm going to get you, don't be in this house when I come back." Mr. Beasley had previously told one of the detectives that the Defendant also threatened "to kill her when he come [sic] back, he was going to shoot up the house and everything."

After this altercation, Mr. Beasley and the victim were both in the victim's living room "having fun." Mr. Beasley explained that he had not taken the Defendant's threats seriously. Within fifteen minutes, Mr. Beasley saw the Defendant walking fast toward the victim's apartment. As the Defendant came abreast of the living room window, which was open, he began shooting into the apartment through the window. The Defendant continued walking and shooting. Mr. Beasley described the gun as an automatic which the Defendant was firing with one hand. The victim was standing "right in front of the window." When the gunfire began, Mr. Beasley turned and ran to a back room where he broke a window and jumped out. He did not see the victim get shot. He did, however, hear "a bunch" of shots.

After jumping through the window, Mr. Beasley ran up the alleyway, where he hid in some bushes out of fear. From there, he saw the Defendant drive by.

On cross-examination, Mr. Beasley admitted that he had been smoking crack cocaine on the day of the shooting. He also admitted to an aggravated burglary and several theft convictions.

George Boone testified that he had known the victim several months before her death. On the day of the shooting, he and several other people were at the victim's apartment. The victim was walking outside. Mr. Boone stated that, while he was standing in her living room looking out the door, he saw an altercation between the Defendant and the victim; he saw no one else present during the argument. Mr. Boone heard the Defendant call the victim "bitch" and state, "somebody got my stuff." He saw the Defendant slap the victim, after which she walked a short distance away. The Defendant also left. After the victim returned to her apartment, the Defendant "came to the door after that and said, somebody got my shit, you-all need to get up out of here." Mr. Boone testified, "He said I don't care if it's your husband or whoever is in there, when I come back I'm going to shoot this m* * * * * f* * * * * up." None of the other people in the apartment responded to the Defendant, but Mr. Boone "told them, they need to come out of there because of what he said." Although the others did not take the Defendant's threat seriously, Mr. Boone did, and he walked out of the apartment.

Mr. Boone stationed himself a short distance away, in front of the apartment. From his position, he could look through the living room window; he saw the victim sitting in front of it. Fifteen to thirty minutes later, he saw the Defendant returning. The Defendant walked over to near where Mr. Boone was standing, reached down, and "come [sic] up with a pistol." The Defendant pointed the gun and "opened fire." Mr. Boone stated that the Defendant shot through the window and that he shot from right to left. Neither man spoke to the other. When he was done shooting, the Defendant "just walked on back around the building" where he got in a car and drove away.

Mr. Boone went to the apartment and looked in. He saw the victim lying on the floor.

Dr. Stacy Turner testified about the victim's autopsy. According to Dr. Turner, the victim had suffered a gunshot wound to the face in which the bullet perforated the victim's right carotid artery and caused her death. The bullet was recovered from the victim's body.

Officer William Kirby, a member of the identification crime scene section of the Metro Nashville Police Department, testified that he reported to the scene of...