Davis v. Johnson
| Decision Date | 02 June 1998 |
| Docket Number | No. CIV. A. H-98-1415.,CIV. A. H-98-1415. |
| Citation | 8 F.Supp.2d 897 |
| Parties | William Prince DAVIS, Petitioner, v. Gary JOHNSON, Director, TDCJ, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
Ken Jerome McLean, Houston, TX, for Petitioner.
Erik E. Cary, Assistant Attorney General, Austin, TX, for Respondent.
Opinion on Denial of a Writ of Habeas Corpus
A state prisoner under a death sentence seeks to overturn the imposition of that punishment. He claims his counsel ineffectively assisted him. Because he did not file his petition in the allotted time, his petition will be denied. If Davis had met the time limits, his attack on the judgment would still fail because he has not demonstrated that his sentence would have been different if his counsel had tried the case as Davis says he should have.
After a life of crime up to the age of twenty-one, William Prince Davis murdered a store manager, generating the death sentence. On June 2, 1978 — yes, '78 — Davis robbed the Red Wing Ice Cream Company as the company's drivers returned with their day's receipts. Davis held a .32 caliber pistol on Richard Lang, the manager. Davis shot Lang in the chest in front of several witnesses. Lang died.
Shortly after killing Lang, Davis confessed. He told an officer, The following day, another officer took his written statement.
Davis was indicted for capital murder and had two lawyers — Tom Dunn and George Pletcher — appointed to defend him. The guilt phase of the trial was brief. On September 18, 1978, Davis was convicted of capital murder.
The more vigorously contestable and contested part of the trial was the punishment. The court asked the jury two questions about the punishment:
Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant, William Prince Davis, that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?
Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, William Prince Davis, would commit criminal acts of violence that would constitute a continuing threat to society?
The charge informed the jury that a no answer to either question would mean life in prison and a yes answer to both would mean death. The jury answered both questions affirmatively within hours, and Davis was sentenced to die.
The Texas Court of Criminal Appeals affirmed. Davis v. State, 597 S.W.2d 358 (Tex. Crim.App.1980). One of Davis's trial lawyers, Dunn, assisted him in that direct appeal. Davis then filed several unsuccessful state court petitions for writs of habeas corpus. The Court of Criminal Appeals twice denied Davis collateral relief, once in a brief, unpublished opinion and later in a lengthy, published opinion. Ex parte Davis, 866 S.W.2d 234 (Tex.Crim.App.1993) (per curiam).
Davis now petitions this court for a writ of habeas corpus, claiming that his counsel was ineffective in (1) failing to have the jury consider Davis's youth in mitigation, (2) failing to object to the prosecutor's equating deliberate and intentional, and (3) failing to present evidence that would have demonstrated an absence of deliberateness. The Texas Court of Criminal Appeals addressed each of these claims in its collateral review. Initially, Johnson did not respond to Davis's arguments; rather, he moved to dismiss Davis's petition on the ground that Davis filed it too late. The court has since received Johnson's response to the merits.
The threshold issue is: Was Davis's petition filed on time? Because Davis's motion for appointment of counsel and application for a writ of habeas corpus were filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, it applies to his case. The act sets a limit of one year after the last of a series of events for a state prisoner to file an application in federal court collaterally attacking a criminal judgment. 28 U.S.C. § 2244(d) (Supp.1997). As Johnson admits, Davis is allowed a one-year grace period after the effective date of the AEDPA. United States v. Flores, 135 F.3d 1000, 1006 (5th Cir.1998). Under the statute, Davis had to file his petition by April 23, 1997. At his request, however, this court extended the time to May 26, 1997. Parenthetically, this court may have erred in assuming that it had the authority to extend the statutory deadline.
Though the point is far from clear, the court assumes that when Davis moved for appointment of counsel and for an extension of time he satisfied the time limit on initiation. Still, at some point he had actually to file his petition. That point came and went on May 26, 1997. Davis did not file anything — let alone his petition — for over eight months after the extended deadline. Over a year passed between his initial request on February 27, 1997, for an extension and his next request on March 25, 1998, for an extension without Davis's filing anything. He has no explanation for missing the prescribed time as extended. Whether Davis satisfied the original time limit is now academic because he plainly did not file within the ordered time.
Davis may argue that he did not have an attorney even after the court appointed Ken J. McLean to represent him. McLean indicated on the first motion for extension, "Attorney for Petitioner on motion only." He reiterated that in the request itself but said that he would be available to represent Davis fully only if an extension were granted. The lawyer said that he had four other cases with deadlines of April 21. The court granted the extension and appointed McLean attorney of record shortly after the request for counsel and first extension request were filed.
In the second motion for extension, McLean implied that he had only recently learned of his appointment: "On February 19, 1998, I was faxed a copy of an order signed on February 28, 1997, appointing me to represent Petitioner Davis." McLean's address and telephone on both motions and on the order appointing him are correct. Davis's June 2, 1998, response to Johnson's motion to dismiss reiterates that McLean never knew of the appointment. It fails to explain why, knowing the deadline was approaching in the spring of 1997, he did not check to see whether he had been appointed. Surely he would have inquired about the status of both motions sometime before the expiration of the original deadline even had he not actually known of the orders. None of Davis's papers provides a good explanation for missing the May 26, 1997, deadline.
On February 18, 1998, without realizing that the first-extended deadline had passed, the court inadvertently set a new deadline of April 20, 1998, and on April 3, 1998, extended it again to May 8, 1998, on Davis's request. While the court should have dismissed the petition as time-barred rather than setting the new deadlines, its orders did not prejudice Davis. By that time the court was without power to resurrect the petition. With or without the 1998 deadlines, Davis did not file by May 26, 1997, as ordered. His petition for a writ of habeas corpus is time-barred.
Parenthetically, however, the court questions why Johnson neglected to raise this issue in the eight months of total default by Davis. Johnson knew that Davis had missed the deadline in mid-1997, and he did not oppose Davis's second request for an extension in March of 1998. The people of Texas have not had effective assistance of counsel for some years.
Timing rules work both ways: if the state wants to kill a man because his filings are not on time, it should raise that issue promptly. If limitations applies to Davis, laches should apply to Johnson. Johnson waited until May 1998 to raise a point it knew of in May 1997. Responsible government's prompt objection would have saved everyone time and trouble, especially since the court, Davis, and Johnson are funded by the taxpayers.
Because the government's taking a person's life should invoke the most awesome governmental accountability, the court will address the merits of the petition in an abundance of caution.
The writ of habeas corpus is an exercise of judicial power outside the usual hierarchy of suits and appeals. Since before the Constitution was ratified in 1789, the writ has protected individuals from wrongful punishment. It allows individuals to question their criminal convictions when they believe they are being held in violation of the law of the United States. The writ gives the federal courts the power to reconsider a state's trial and appellate conclusions.
The state of Texas has the power to kill a person as punishment. If that decision is constitutionally sound, both in substance and in process, it must be affirmed by the federal courts. Texas is wholly bound by the United States laws and constitution. This court's narrow, yet careful, review exists only to ensure that the state met its responsibility to afford full constitutional protections to a man it has sentenced to die. The standards must be high when the penalty is death.
The Constitution requires that a defendant have a lawyer because an accused on his own cannot focus his case through the complex lens of the legal process without professional assistance. U.S. Const. Amend. VI. Reasonable help that precludes substantial injustice —rather than perfect lawyering—is required.
To prove that his counsel did not effectively assist him under the Constitution, Davis must show that their performance was deficient and that the deficiency prejudiced him.
• Deficiency. His counsel must have made errors so serious that he did not have reasonably competent help, denying him a reasonable opportunity to present his best positions through...
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Davis v. Johnson
...that it therefore may have erred by previously granting Davis extensions of time to file beyond the statutory period. Davis v. Johnson, 8 F.Supp.2d 897, 900 (S.D.Tex.1998). Second, the district court analyzed the merits of Davis's ineffective assistance of counsel claims and found them to b......