Davis v. Shoop, Case No. 2:16-cv-495

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtMagistrate Judge Michael R. Merz
PartiesVON CLARK DAVIS, Petitioner, v. TIMOTHY SHOOP, Warden, Chillicothe Correctional Institution Respondent.
Decision Date16 June 2020
Docket NumberCase No. 2:16-cv-495

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

June 16, 2020


District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

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 has been referred to the undersigned for a Report and Recommendations. 28 U.S.C. § 636(b).

On May 16, 1984, Davis was convicted by a three-judge panel1 of the Butler County, Ohio, Court of Common Pleas of one count of aggravated murder of his girlfriend, Suzette Butler, with a firearm specification, and one count of knowing use of a firearm while under a disability—having previously pled guilty to and been convicted of both shooting with the intent to wound his estranged wife, Ernestine, and later, second degree murder of Ernestine (Petition, ECF No. 6, PageID 8581-82, 8589, citing Trial Tr., ECF No. 5-3, PageID 7641-42, 7645-47, 2nd Resent'g Tr.,

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ECF No. 5-8, PageID 8441-42, 8466). After a penalty phase, which began on May 24, 1984, the panel sentenced Davis to death. Id. at PageID 8589, citing State Court Record., ECF No. 4-3, PageID 487-89. In 1988 and 2007, the Supreme Court of Ohio and the United States Court for the Sixth Circuit, respectively, affirmed Davis's convictions, but vacated his death sentence and remanded the matter to the trial court for a new penalty phase. Davis v. Coyle, 475 F.3d 761 (6th Cir. 2007); State v. Davis, 38 Ohio St. 3d 361 (1988).2 Twice, three-judge panels resentenced Davis to death (Petition, ECF No. 6, PageID 8595, 8618, citing State Court Record, ECF No. 4-39, PageID 4924-34; 1st Resent'g Tr., ECF No. 5-4, PageID 7728). The judgment from the Second

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Resentencing became final upon the United States Supreme Court's denying Davis's petition for writ of certiorari on March 2, 2015. Davis XVI, 135 S.Ct. 1494.3 Davis first filed a petition for writ of habeas corpus in this Court on April 28, 1997, which was denied by Judge James L. Graham in Orders dated December 23, 1997, and September 4, 2001. Davis IX, ECF Nos. 16-1, 16-2. Those orders were overturned by the Sixth Circuit's decision to vacate Davis's death sentence and remand for resentencing. Davis X, 475 F.3d 761. Davis filed the instant Petition on August 25, 2016 (ECF No. 6). For the reasons set forth below, it is recommended that the Petition be DENIED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The factual background has been extensively set forth in previous opinions listed supra. The discussion below is limited to those facts germane to the Grounds for Relief in the instant Petition.

Davis, after dropping out of school in the ninth grade, enlisted in the Navy in 1964 when he was seventeen years old, but was discharged seven months later after he went Absent Without Leave and the Navy "determined his emotional instability was 'so severe that he [was] not suitable to be in the US Armed Forces.'" (Petition, ECF No. 6, PageID 8581 (brackets in original, quoting 2nd Resent'g Tr., ECF No. 5-8, PageID 8442; citing 2nd Resent'g Tr., ECF No. 5-8, PageID 8441-42, 8466)). He married Ernestine in 1967, but the couple separated in 1969. Id. On September 16, 1969, while they were separated, Davis fired four shots at Ernestine, causing her to "suffer[] a bullet wounds (sic) in the right upper arm and in the left hand." (Trial Tr., ECF No. 5-3, PageID

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7642). Davis was subsequently charged with and pled guilty to one count of discharging a firearm with the intent to wound Ernestine. Id. On December 30, 1970, during an altercation, Davis, by his own admission to law enforcement officers, stabbed and killed Ernestine. Id. at PageID 7645-47. In 1971, a mental evaluation was conducted on Davis, in which the psychologist concluded that Davis's "desperate need for relationships triggers paranoia at the prospect of losing them, causing a sudden and dramatic vacillation from love and idealization to anger and hate. This disposition made Mr. Davis prone to 'angry outbursts with very little provocation.'" (Petition, ECF No. 6, PageID 8582, quoting 2nd Resent'g Tr., ECF No. 5-7, PageID 8445). "This evaluation additionally described Mr. Davis as 'unstable and hostile' and 'afraid of his impulses.'" Id., quoting 2nd Resent'g Tr., ECF No. 5-7, PageID 8445. Davis pled guilty to one count of second-degree murder of Ernestine and served ten years in prison from 1971 until 1981. While incarcerated, Davis exhibited exemplary behavior and obtained numerous educational degrees and certifications. Id., citing Trial Tr., ECF No. 5-3, PageID 7613-15.

Upon his release, Davis began a tumultuous live-in relationship with Suzette Butler. On December 12, 1983, while separated from Butler, Davis asked Wade Coleman and Mark Lovette, his cousin and acquaintance, respectively, to buy a gun and bullets for him. Coleman testified that Davis wanted the gun for protection, but gave no specifics and never mentioned Butler with respect to acquiring the weapon (Trial Tr., ECF No. 5-2, PageID 7313-15). Armed and heavily intoxicated, he entered an American Legion bar in Hamilton, Ohio, where Butler was eating dinner with a friend, Mona Aldridge (Petition, ECF No. 6, PageID 8583, citing Trial Tr., ECF No. 5-2, PageID 7289-92, 7309-13, 7317, 7335-37). Butler and Davis talked privately (and, by outward appearances, calmly) before Aldridge joined them (Trial Tr., ECF No. 5-2, PageID 7348-49). Aldridge testified that at some point, Butler asked her to watch her personal belongings while she

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went outside with Davis. Several minutes after Butler and Davis stepped outside, Aldridge reportedly opened the door to the bar, "peeked out[,]" and saw "Davis with a gun pointed towards [Butler's] head." (Trial Tr., ECF No. 5-2, PageID 7338, 7353-54). While the police record of Aldridge's statement immediately after the shooting included a statement that she heard Butler and Davis arguing when she peeked outside, she testified at trial that they were not arguing and that she never told the police that. Id. at PageID 7358-60. Aldridge further testified that, even though she did not hear gunshots, she ran back inside the American Legion because she was scared, and approximately 90 seconds later, people entered the bar and reported that someone had been shot. Id. at PageID 7338-39, 7355.

Sometime between 7:00 and 7:30 that evening, an Anthony Ferguson observed Butler and Davis outside the bar as Ferguson was standing on the corner diagonally across from the American Legion. Ferguson testified that "as soon as [Butler and Davis] walked out the door he turned around and he shot her. And as she fell on the ground he shot her some more . . . about three or four times." (Grand Jury Tr., ECF No. 5-1, PageID 7128). Ferguson did not call the police but spoke with law enforcement after the crime scene was roped off. Id. at PageID 7147-48. However, Ferguson did not testify at trial, and two of the State's trial witnesses, Reginald Denmark and Cozette Massey, who testified that they were near the scene of the crime, testified that they had not seen Ferguson. (Petition, ECF No. 6, PageID 8735, citing Trial Tr., ECF No. 5-2, PageID 7373-74, 7382-83, 7424). Denmark and Massey, who were in a romantic relationship at the time of the murder, indicated that they had left Massey's apartment between 7:15 and 7:30 p.m. and observed Butler and Davis outside the American Legion from across the street; Massey testified that she heard gunfire and saw Davis shoot Butler in the head three times after the initial two gunshots (which she did not witness) sent Butler to the ground (Trial Tr., ECF No. 5-2, PageID

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7366-68). Massey further testified that she spoke to the police anonymously immediately after the shooting occurred, and also spoke to the police approximately four days later. During the latter interview, police showed Massey a photograph of Butler (in isolation, rather than an array of photographs including others), and a photograph of Davis with Butler (again, in isolation). From those photos, Massey identified Butler as the victim and Davis as the man who shot her. Id. at PageID 7385-89. When Massey identified Davis in court as the perpetrator, trial counsel moved to strike the identification, arguing that it was the fruit of the photograph shown Massey by the police, which was itself an impermissibly suggestive process. However, the three-judge panel collectively overruled the motion. Id. at PageID 7393-94.

Denmark testified that, from across the street next to Massey, he saw Davis quickly take out a gun and fire two shots; at that point, Denmark testified, Butler attempted to say something but fell to the ground, at which point Davis quickly shot her again (Trial Tr., ECF No. 5-2, PageID 7397-98, 7417). Denmark identified Davis while under oath, saying that he had known of Davis at the time of the shooting, having seen him around town, and that there was "never any doubt" that Davis was the man he had seen shooting Butler. Id. at PageID 7399-400. At the end of the State's case-in-chief, Davis's counsel moved for acquittal on the charge of aggravated murder, citing the inconsistent testimony of the above eyewitnesses and arguing that, even if true, there was no "prior calculation or design" by Davis to kill Butler, which was required under the statute to sustain a conviction for aggravated murder (Trial Tr., ECF No. 5-3, PageID 7445-53, citing Ohio R.Crim.P. 29). The three-judge panel overruled the motion, finding "that there is sufficient evidence here on each element in the crimes charged in the indictment[.]" Id. at PageID 7461.

After the Rule 29 Motion was denied, Davis's counsel, John Garretson, set forth Davis' defense with his opening statement. Counsel argued...

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