Davis v. Shoop

• Decision Date: 29 March 2021
• Docket Number: Case No. 2:16-cv-495
• Parties: VON CLARK DAVIS, Petitioner, v. TIMOTHY SHOOP, Warden, Chillicothe Correctional Institution Respondent.
• Court: U.S. District Court — Southern District of Ohio

VON CLARK DAVIS, Petitioner, v. TIMOTHY SHOOP, Warden, Chillicothe Correctional Institution Respondent.

Case No. 2:16-cv-495

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

March 29, 2021

District Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

ORDER ADOPTING REPORT AND RECOMMENDATIONS IN PART AND DENYING PETITION FOR HABEAS CORPUS

This capital habeas corpus case is before the Court for decision on the merits on the Petitioner Von Clark Davis's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (ECF No. 6). The case was referred to the Magistrate Judge for a Report and Recommendations, 28 U.S.C. § 636(b)(1)(B), which he filed on June 16, 2020 (Report, ECF No. 51). Davis subsequently filed Objections (ECF No. 57), to which the Warden has responded (Response, ECF No. 60), and Davis has filed a Reply (ECF No. 63).¹ For the reasons set forth below, the Report is ADOPTED, with the following exceptions: Davis is allowed to proceed in forma pauperis on appeal and is granted a certificate of appealability as to Claims Four and Eleven, and Claims Twenty-Twothrough Twenty-Five only as to their cognizability.² The Petition is DENIED.

I. LEGAL STANDARDS

A. 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b)

A District Judge may, as the undersigned has here, refer a dispositive matter to a Magistrate Judge "to submit to a judge of the court proposed findings of fact and recommendations for the disposition[.]" 28 U.S.C. § 636(b)(1)(B).

Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1)(C).

B. 28 U.S.C. § 2254

As Davis is imprisoned based on a state court judgment, he may petition for a writ of habeas corpus "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition:

[S]hall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented[.]

28 U.S.C. § 2254(d). A habeas corpus petitioner must also satisfy additional procedural requirements, including but not limited to exhaustion of State court judicial remedies. 28 U.S.C. § 2254(b). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214, this Court's review of a claim adjudicated on its merits in a State court proceeding is sharply circumscribed: the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133,140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. A determination of a factual issue made by a State court is presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

A state court may be found to have acted "contrary to" federal law in two ways: (1) if the state court's decision is "substantially different from the relevant precedent" of the United States Supreme Court; or (2) if "the state court confronts a set of facts that are materially indistinguishable from a decision of [the United States Supreme] Court and nevertheless arrives at a result different from [United States Supreme Court] precedent[.]" Williams v. Taylor, 529 U.S. 362, 405 (2006). A state court does not act contrary to federal law simply because its application of federal law was incorrect. Rather, the decision must have been "mutually opposed[,]" id., to "clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254(d)(1), which encompasses only the holdings of Supreme Court decisions, and not their dicta. Williams, 529 U.S. at 412.

The "unreasonable application" standard is distinct from and more deferential than that of "clear error." "It is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court decision was erroneous. . . . Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75, 76 (2003) (internal quotation marks omitted). "[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (internal citation omitted). However, this deferential standard applies only when thestate court has addressed the merits of a claim raised on appeal; "[w]here a state court has not adjudicated a claim on the merits, the issue is reviewed de novo by a federal court on collateral review." Trimble v. Bobby, 804 F.3d 767, 777 (6^th Cir. 2015).

C. Exhaustion, Procedural Default, and Res Judicata

A federal habeas corpus petitioner must exhaust his claims in the state court before he may bring those claims before this Court. 28 U.S.C. § 2254(b)(2). This can be shown by demonstrating that: (1) the highest court of a state has adjudicated the merits of the claim; or (2) under state law, the claims are procedurally barred. Gray v. Netherland, 518 U.S. 152, 161-62 (1996). "[T]he doctrine of exhaustion requires that a claim be presented to the state courts under the same theory in which it is later presented in federal court." Wong v. Money, 142 F.3d 313, 322 (6^th Cir. 1998). However, if a claim is procedurally barred under state law because "a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, [then] federal habeas review of the claims is barred." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Under Ohio law, failure to make timely objections at trial or to raise the issue on direct appeal from the trial court, if possible, bars a petitioner from raising that claim in a federal habeas corpus petition. Seymour v. Walker, 224 F.3d 542, 555 (6^th Cir. 2000), citing State v. Perry, 10 Ohio St. 2d 175, 176 (1967), paragraphs eight and nine of the syllabus; see also, e.g., Coleman v. Mitchell, 244 F.3d 533, 538-39 (6^th Cir. 2001) ("Coleman I"), superseded by statute on other grounds as stated in Stewart v. Winn, 967 F.3d 534, 540 (6^th Cir. 2020) (holding that the "Perry rule" regarding res judicata was an adequate and independent state law ground upon which to find a claim procedurally defaulted, and thus, bar its consideration of claims by district courts); Wong, 142 F.3d at 322 (emphasis added) ("Under Ohio law, the failure to raise on appeal a claim that appears on the face of the record constitutes a procedural default under the State's doctrine of resjudicata."). A claim of ineffective assistance of counsel—e.g. for failure to make timely objections at trial—normally must "be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 489 (1986).

Further, in raising the claims in the state court, a petitioner must set out why he believes his federal constitutional rights have been violated to avoid procedural default. 28 U.S.C. § 2254; Gray, 518 U.S. at 162-63. The procedural default analysis focuses on the "last explained state court judgment." Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991). Therefore, a decision by a state supreme court in which the court declines to exercise jurisdiction over an appeal from an intermediate appellate court, but that does not provide reasons for that decision, does not constitute the "state judgment" upon which this Court resolves the procedural default question. Munson v. Kapture, 384 F.3d 310, 314 (6^th Cir. 2004), citing Ylst, supra. However, the threshold for what constitutes an "explained state court judgment" is modest—an order from a state supreme court stating nothing more than "that the petitioner had failed to meet the burden of establishing entitlement to relief under [Michigan Rule of Criminal Procedure] 6.508(D) - though brief - constituted the last explained state court decision in the case." Id. (internal quotation marks omitted), quoting Simpson v. Jones, 238 F.3d 399, 407-08 (6^th Cir. 2000). A decision by a state court to review the merits of an otherwise-defaulted claim, as an act of grace to an appellant, does not save that claim from being procedurally defaulted in the federal District Court. Coleman v. Mitchell, 268 F.3d 417, 429 (6^th Cir. 2001) ("Coleman II"), quoting Amos v. Scott, 61 F.3d 333, 342 (5^th Cir. 1995). Finally, a District Court's review "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 180, 181 (2011).

A State's procedural...