Davis v. Mississippi, CIVIL ACTION NO. 3:15-CV-421-DPJ-FKB
| Decision Date | 18 September 2018 |
| Docket Number | CIVIL ACTION NO. 3:15-CV-421-DPJ-FKB |
| Parties | SAHEED DAVIS PETITIONER v. STATE OF MISSISSIPPI RESPONDENT |
| Court | U.S. District Court — Southern District of Mississippi |
This habeas petition is before the Court on the Report and Recommendation ("R&R") [14] of Magistrate Judge F. Keith Ball. Judge Ball recommended denying habeas relief and dismissing the petition. Petitioner Saheed Davis filed an Objection [18]; the State of Mississippi responded [20]; and Davis filed a Reply [21].1 Having considered the parties' submissions and the applicable authority, the Court finds the Report and Recommendation should be adopted as the Court's opinion.
Saheed Davis was convicted in state court for murdering Maurice Warner.2 During a family gathering on December 25, 2008, Davis and Warner engaged in a verbal and physical altercation. The men separated, heading toward their respective vehicles, and before Warner could open his car door, Davis retrieved a gun and shot him 10 times. R&R [14] at 2. At trial, Davis's sole defense was that he shot Warner in self-defense. Id. at 2-3. The jury convicted Davis of murder, and he was sentenced to life-imprisonment. Id. at 3. The Mississippi Court ofAppeals affirmed the conviction and sentence, and the Mississippi Supreme Court denied Davis's application for post-conviction relief. Id.
Davis's federal petition raises three grounds for relief:
Id. Judge Ball found ground one procedurally barred. Id. at 3-7. As to grounds two and three, he found the state court's adjudications were not contrary to, nor did they involve an unreasonable application of, clearly established Supreme Court law. Id. at 7-14. He likewise found the state's factual findings were not unreasonable. Id.
Working in reverse order, grounds two and three allege ineffective assistance of counsel. The Mississippi Supreme Court rejected both arguments on the merits. See State Ct. R. [6-1] at 25-35 (PCR Mot.) ( position as to grounds two and three); id. [6-1] at 38 (PCR Order) ( the claims do not meet the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984)). These claims are therefore subject to a highly deferential standard of review:
28 U.S.C. § 2254(d). Applying this standard to an ineffective-assistance-of-counsel claim, Harrington v. Richter, 562 U.S. 86, 105 (2011) ().
In ground two, Davis says his attorney erred by reaching an agreement with the prosecution that neither would introduce evidence of Davis's or Warner's criminal histories. Davis believes he lost an opportunity to support his claim that Warner was the aggressor and gained nothing, because he did not testify. Judge Ball properly concluded that there was a "reasonable argument" that Davis's counsel made a strategic decision to enter the agreement because it was possible Davis might testify. Id.; see R&R [14] at 8-9 ().
In his Objection, Davis says if he had wanted to testify, "competent counsel would have and could have dissuaded him because it would open him up to exposure of his own far-less serious criminal past." Obj. [18] at 5. But this argument only reinforces that defense counsel—when faced with the unpredictability that his client may or may not testify—strategically chose to err on the side of caution and avoid the possibility that the jury could hear Davis's criminal history. There is a "reasonable argument" that counsel's conduct satisfied Strickland. Harrington, 562 U.S. 105; see Strickland, 466 U.S. at 690 ().
In ground three, Davis says his attorney erred in failing to request a heat-of-passion manslaughter jury instruction. Judge Ball concluded, and the undersigned agrees, that the given instructions adequately set out the requirements for heat-of-passion manslaughter. R&R [14] at 11-13 ().
In his Objection, Davis generally disagrees with Judge Ball and adds that "the point made in the Petition is that the facts, circumstances and law ought to be reviewed in an evidentiary hearing by this Court."Obj. [18] at 6. The limited circumstances justifying a hearing are set forth in § 2254(e)(2), and Davis has not shown that he can overcome this bar. The jury instructions are accurately reflected in the record and speak for themselves. Stated simply, there is nothing to be gained by holding a hearing on this ground; there is no factual dispute or credibility determination to be assessed. See Shank v. Vannoy, No. 16-30994, 2017 WL 6029846, at *2 (5th Cir. Oct. 26, 2017) () (quoting Schiro v. Landrigan, 550 U.S. 465, 474 (2007)). The state court's rejection of the ineffective-assistance-of-counsel claim contained in ground three was objectively reasonable; habeas relief is denied. 28 U.S.C. § 2254(d).
Davis says Hinds County District Attorney Robert Schuler Smith should have recused himself because he previously represented Warner in a criminal matter, as well as Warner's brother.3 Davis contends that this history created a conflict of interest. In support, Davis presented an affidavit from his former counsel, Robert Powell, stating that the district attorney's office refused to enter a plea agreement because Warner's family opposed it. Davis's trial counsel knew about the alleged conflict but took no action, and his appellate counsel did not raise the issue on appeal. R&R [14] at 6.
On post-conviction review, the Mississippi Supreme Court found this claim was procedurally barred, because "the issue could have been raised at trial and on direct appeal." State Ct. R. [6-1] at 38 (PCR Order) ). Judge Ball assumed for the sake of argument that ground one states a cognizable habeas claim but concluded that "it is nevertheless procedurally barred from review by this court." R&R [14] at 4.
The undersigned agrees; even assuming a constitutional violation occurred, Davis has not shown that he can overcome the procedural bar.
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991) (emphasis added). Davis challenges the procedural bar in three ways: (1) lack of an adequate state-procedural bar; (2) cause for the default; and (3) actual innocence.
A state-procedural ground is adequate if it "is strictly or regularly applied evenhandedly to the vast majority of similar claims." Amos v. Scott, 61 F.3d 333, 339 (5th Cir. 1995) (citing Dugger v. Adamas, 489 U.S. 401, 410 n.6 (1989); Hathorn v. Lovorn, 457 U.S. 255, 263 (1982)). Davis says the procedural bar he faces is not adequate because the Mississippi Supreme Court has twice considered conflict-of-interest arguments made during post-conviction proceedings. Judge Ball rejected this argument because: (1) Davis's cited cases address defense counsel who have conflicts of interest (not the prosecutor) and (2) "a showing that the state court disregarded a procedural rule in two cases is [ ] insufficient" to show the rule has not been regularly applied. R&R [14] at 5.
Looking to the second point, "'regularly' is not synonymous with 'always' and 'strictly' is not synonymous with 'unanimously.'" Amos, 61 F.3d at 342. When—as here—there have been "relatively few occasions" that a state court has disregarded a rule, it is "not sufficient to undercut the overall regularity and consistency" of its application. Id. at 345; see Fratta v. Davis, 889 F.3d 225, 231 (5th Cir. 2018) ...
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