Davis v. Sharp

• Decision Date: 27 November 2019
• Docket Number: No. 17-6225,17-6225
• Parties: Nicholas Alexander DAVIS, Petitioner - Appellant, v. Tommy SHARP, Interim Warden, Oklahoma State Penitentiary, Respondent - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

943 F.3d 1290

Nicholas Alexander DAVIS, Petitioner - Appellant,

v.Tommy SHARP, Interim Warden, Oklahoma State Penitentiary,^* Respondent - Appellee.

No. 17-6225

United States Court of Appeals, Tenth Circuit.

FILED November 27, 2019

Michael Lieberman (Thomas Hird, with him on the briefs), Assistant Federal Public Defenders, Oklahoma City, Oklahoma, for Petitioner-Appellant.

Caroline Hunt, Assistant Attorney General (Mike Hunter, Attorney General, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before HARTZ, MORITZ, and EID, Circuit Judges.

MORITZ, Circuit Judge.

After an Oklahoma jury convicted Nicholas Davis of first-degree murder and sentenced him to death, he sought federal habeas relief. In relevant part, he asserted that both trial counsel and appellate counsel were constitutionally ineffective in failing to adequately investigate his mental health and discover that he suffers from depression and post-traumatic stress disorder

(PTSD). The district court denied relief. For the reasons explained below, we affirm.

Background

One evening in January 2004, Davis went to an apartment where his former girlfriend, Tia Green, was visiting her sister, Chinetta Hooks.¹ Seventeen-year-old Marcus Smith was also present in the apartment. Davis, wearing all black, knocked on the door and covered the peephole. Unable to see who was at the door, Smith asked who was there, but Davis did not respond. When Smith opened the door slightly, Davis forced his way inside. He was carrying a handgun loaded with 23 rounds, including one in the chamber, along with a box of extra ammunition. He pointed the gun at Smith, and Smith put his hands up and backed away.

As Green, Hooks, and Smith tried to reason with Davis, Davis twice lowered the gun. But he then raised it a third time and fired at Smith’s head. Davis continued firing, and Green and Hooks ran into other rooms of the apartment. Davis ultimately shot Smith three times, and Smith died at the scene. Davis also shot Green and Hooks multiple times, though they both survived.

Davis eventually confessed to the shooting. According to Davis, he went to the apartment because Green said she wanted to talk to him, and he brought a gun because Green tried to hurt him in the past. Davis also said that he shot Smith in self-defense because Smith lunged at him.

Based on these events, a jury convicted Davis of one count each of first-degree murder and being a felon in possession of a gun and two counts of shooting with the intent to kill. At sentencing, Davis’s trial counsel presented a mitigation case based on Davis’s life story. Nine family-member witnesses asked the jury to spare Davis’s life. They painted a picture of Davis’s early childhood as a happy one, during which he lived with extended family on his grandparents’ farm. And they explained that he only later turned to a life of crime after his neglectful mother took him away from this idyllic setting. Unswayed by Davis’s mitigation case, the jury ultimately found that the state proved three aggravating circumstances—that Davis "knowingly created a great risk of death to more than one person"; that Davis committed the murder while he was "serving a sentence of imprisonment on conviction of a felony"; and that there existed "a probability that petitioner would commit criminal acts of violence that would constitute a continuing threat to society"—and sentenced Davis to death for first-degree murder.² R. 513–14.

On direct appeal to the OCCA, Davis raised 21 claims of error. Davis , 268 P.3d at 138. In one of those claims, Davis alleged that he received ineffective assistance of counsel (IAC) at trial. Specifically, he challenged the life story that trial counsel presented in mitigation and alleged that trial counsel should have called one of his brothers to testify that his entire childhood was one of deprivation and neglect and should have called an expert witness to more fully explain to the jury how Davis’s negative life experiences affected his behavior (collectively, the life-experience IAC claim). Id. at 129–30.

The OCCA ordered the state trial court to conduct an evidentiary hearing on this claim. Id. at 132. During that hearing, appellate counsel clarified that (1) the life-experience IAC claim alleged trial counsel was ineffective in the manner in which she chose to present Davis’s life story to the jury (first by characterizing his early childhood as positive and second by failing to call an expert to tie together the story of Davis’s life) and (2) the life-experience claim did not allege that trial counsel was ineffective in failing to investigate or present evidence about Davis’s mental health. Nevertheless, the hearing on the life-experience IAC claim yielded critical details about trial counsel’s investigation into Davis’s mental health. For instance, appellate counsel pointed out that trial counsel sought a mental-health evaluation from Terese Hall, a clinical psychologist.³ And appellate counsel also provided the court with a memo in which trial counsel memorialized the results of Hall’s mental-health evaluation, including Hall’s conclusions that Davis suffered from antisocial personality disorder

and was "a psychopath." R. 530. Additionally, appellate counsel noted that Hall did not recommend any further psychological testing and told trial counsel that she could not assist with Davis’s defense.

The OCCA reviewed the results of the evidentiary hearing and rejected the life-experience IAC claim. Davis , 268 P.3d at 132–38. It also rejected Davis’s remaining claims and thus affirmed his convictions and sentence. Id. at 139.

Davis then sought postconviction relief in state court. There, he raised what we refer to respectively as the Trial PTSD Claim and the Appellate PTSD Claim (collectively, the PTSD Claims). See Davis v. State , No. PCD-2007-1201, slip op. at 3 (Okla. Crim. App. Jan. 25, 2012) (unpublished). Specifically, in the Trial PTSD Claim, he alleged that trial counsel was ineffective in failing to investigate, develop, and present evidence, at both the guilt and sentencing stages, that he suffered from PTSD. Id. In the Appellate PTSD Claim, he alleged that appellate counsel was ineffective in failing to investigate, develop, and raise this aspect of trial counsel’s alleged ineffectiveness on appeal. Id. at 7. In support, Davis submitted a report from Lara Duke, a licensed psychologist who spent five hours with Davis, administered various tests, and diagnosed Davis with PTSD. Id. at 3–4. The OCCA found the Trial PTSD Claim waived because Davis failed to raise it on direct appeal. Id. at 6; see also Logan v. State , 293 P.3d 969, 973 (Okla. Crim. App. 2013) ("[I]ssues that were not raised previously on direct appeal, but which could have been raised, are waived for further review."). It rejected the Appellate PTSD Claim on the merits. Davis , slip op. at 7–8. Thus, the OCCA denied Davis’s motion for postconviction relief. Id. at 11.

Next, Davis filed a habeas petition in federal district court. See 28 U.S.C. § 2254. As relevant here, he raised the PTSD Claims along with what we refer to respectively as the Trial Depression Claim and the Appellate Depression Claim (collectively, the Depression Claims). In particular, he argued trial counsel was ineffective in failing to investigate, develop, and present evidence at both the guilt and sentencing stages of trial that he suffered from depression and appellate counsel was ineffective in failing to investigate and raise this particular aspect of trial counsel’s alleged ineffectiveness on appeal. The district court denied Davis’s petition and refused to grant him a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1)(A).

Davis then sought to appeal to this court. We granted him a COA to appeal the district court’s resolution of the Depression Claims and the PTSD Claims.

Analysis

On appeal, Davis argues the district court erred in denying relief on both the Depression Claims and the PTSD Claims. In evaluating his arguments, we review the district court’s legal analysis de novo. See Smith v. Duckworth , 824 F.3d 1233, 1241–42 (10th Cir. 2016).

I. The Depression Claims

Davis’s § 2254 petition alleged in part that trial counsel was ineffective in "fail[ing] to investigate, develop, and present evidence of ... [m]ajor [d]epressive [d]isorder." R. 31. He further argued that appellate counsel was likewise ineffective in failing to investigate and present "[a] complete mental[-]health claim ... on appeal." Id. at 60. The district court ruled that these claims were unexhausted and subject to an anticipatory procedural bar.

We agree. The Depression Claims are unexhausted because Davis never presented such claims in state court, either on direct appeal or in his postconviction application. See § 2254(b)(1)(A) (requiring habeas petitioner to exhaust claims in state court); Bland v. Sirmons , 459 F.3d 999, 1011 (10th Cir. 2006) ("A claim has been exhausted when it has been ‘fairly presented’ to the state court." (quoting Picard v. Connor , 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) )). On direct appeal, Davis did advance the life-experience IAC claim. But he expressly limited that claim to his allegations that trial counsel was ineffective in failing to present evidence—in the form of testimony from an expert and from Davis’s brother—of Davis’s difficult childhood and its effects on him. Davis did not argue trial counsel was ineffective in failing to adequately investigate or present evidence about Davis’s depression. Davis , 268 P.3d at 129–30. Indeed, during the direct-appeal evidentiary hearing, Davis’s appellate counsel specifically stated that Davis was not asserting on appeal that trial counsel was ineffective in failing to conduct psychological testing or in failing to present evidence from a mental-health expert. Likewise, Davis’s postconviction application included only the PTSD Claims and did not mention depression.

Resisting the conclusion...