Gavin v. Dunn

• Decision Date: 27 March 2020
• Docket Number: CIVIL ACTION NO. 4:16-00273-KOB
• Citation: Gavin v. Dunn, 449 F.Supp.3d 1174 (N.D. Ala. 2020)
• Parties: Keith Edmund GAVIN, Petitioner, v. Jefferson S. DUNN, Commissioner of the Alabama Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Alabama

449 F.Supp.3d 1174

Keith Edmund GAVIN, Petitioner,

v.Jefferson S. DUNN, Commissioner of the Alabama Department of Corrections, Respondent.

CIVIL ACTION NO. 4:16-00273-KOB

United States District Court, N.D. Alabama, Middle Division.

Signed March 27, 2020

Grant A. Premo, John D. Watson, III, Bradley Arant Boult Cummings LLP, Birmingham, AL, Matthew M. Fogelberg, Melanie E. Walker, Neil H. Conrad, Nicholas Kringlee Tygesson, Steven J. Horowitz, Sidley Austin LLP, Chicago, IL, Rachel R. Goldberg, Sidley Austin, Los Angeles, CA, for Petitioner.

Beth Jackson Hughes, Office of the Attorney General, Montgomery, AL, for Respondent.

REVISED MEMORANDUM OPINION

KARON OWEN BOWDRE, UNITED STATES DISTRICT JUDGE

The court WITHDRAWS its Memorandum Opinion entered on March 17, 2020(doc. 63) and enters this Revised Memorandum Opinion in its place nunc pro tunc.The court inadvertently used the wrong name for the petitioner on two separate pages of the prior Memorandum Opinion.This Revised Memorandum Opinion corrects that error and makes no other changes.The Final Judgment Order (doc. 64) remains in full force and effect.

PetitionerKeith Edmund Gavin has petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1999 convictions in Cherokee County, Alabama, for two counts of capital murder and one count of attempted murder, and his subsequent sentences of death for the capital murder convictions and life imprisonment for the attempted murder conviction.Mr. Gavin alleges that a variety of constitutional violations require reversal of his convictions and/or sentence.The parties have fully briefed Mr. Gavin's claims.

After careful consideration of the record, the pleadings, and the applicable provisions of 28 U.S.C. § 2254, and for the reasons stated below, the court finds that Mr. Gavin's petition is due to be granted on his claim that counsel were constitutionally ineffective at the penalty phase of his trial, and that all other claims are due to be denied with prejudice.

Table of Contents

I. PROCEDURALHISTORY...1189

II.THE OFFENSE OFCONVICTION...1190

III.THE SENTENCE...1194

IV.LEGALSTANDARD...1198

A.Exhaustion of State Court Remedies: The First Condition Precedent to Federal HabeasReview...1198

B.The Procedural Default Doctrine: The Second Condition Precedent to Federal HabeasReview...1198

C.Overcoming Procedural Default: The Cause and PrejudiceAnalysis...1199

D.The Statutory Overlay: The Effect of "the Antiterrorism and Effective Death Penalty Act of 1996" on HabeasReview...1199

1.Title 28 U.S.C. § 2254(e)(1)...1200

2. 28 U.S.C. § 2254(d)...1200

E.Ineffective Assistance of CounselClaims...1201

1.The performance prong...1201

2.The prejudice prong...1202

3.Deference accorded state court findings of historical fact, and decisions on the merits, when evaluating ineffective assistance of counsel claims...1202

V. Mr. Gavin'sClaims...1203

A.JurorMisconduct...1203

1.Premature PenaltyDeliberations...1203

2.Improper Contact with an Officer of the Court...1206

B.Ineffective Assistance of Counsel in the GuiltPhase...1208

1.Failure to Investigate and Impeach the State's Key Witness, DwayneMeeks...1208

a. Failure to Conduct a MinimalInvestigation...1209

b. Failure to Impeach Mr. Meeks on Inaccuracies and Inconsistencies in HisTestimony...1211

2.Failure to Expose Irregularities in the State'sInvestigation...1212

a. Contamination of the Victim'sVan...1212

b. Dewayne Meeks' "Interview"...1214

1.Advance Notice of Interview...1214

2.Dewayne Meeks's Interviewers were PersonalFriends...1215

c. Dewayne Meeks' PolygraphExamination...1216

d. Failure to Investigate Dewayne Meeks' Vehicle, Clothing, and Home...1218

e. Failure to Investigate KeyWitnesses...1219

f. Irregularities in the Recovery of the MurderWeapon...1220

3.Failure to Suppress Identification Evidence and to Effectively Cross-Examine Unreliable IdentificationTestimony...1221

a. Failure to Suppress IdentificationEvidence...1222

b. Failure to Effectively Cross-Examine Unreliable IdentificationTestimony...1224

4.Failure to Prevent the Jury from Hearing Prejudicial Evidence of Mr. Gavin's Prior Conviction During the GuiltPhase...1227

5.Failure to Call Mr. Gavin to Testify in His OwnDefense...1229

6.The Cumulative Effect of Trial Counsel'sErrors...1231

C.Ineffective Assistance of Counsel in the PenaltyPhase...1231

1.Available MitigationEvidence...1233

a. LuciaPenland...1233

b. Betty Paramore, Ph.D....1236

c. Craig Haney, Ph.D....1237 2.Deficiency of Counsel for Failing to Investigate...1238

3.Prejudice from Failure to Investigate...1241

4. Analysis...1242

D.Prosecutor's Comments on Mr. Gavin's Failure to Testify...1249

E.Admission of Tainted EyewitnessIdentifications...1256

1.DannySmith...1256

2.LarryTwilley...1261

F.Violation of Mr. Gavin's Right of Self-Representation...1262

G.Violation of Ring v. Arizona ...1266

VI. CONCLUSION...1270

I.PROCEDURAL HISTORY

In April, 1998, Mr. Gavin was indicted in the Cherokee County Circuit Court on two counts of capital murder for the shooting death of William Clinton Clayton, Jr.(Vol. 1, Tab 1at 10-12).¹The murder was made capital because it was committed during the course of a robbery, in violation of Ala. Code § 13A-5-40(a)(2), and because Mr. Gavin had been convicted of another murder within the previous twenty years, in violation of Ala. Code § 13A-5-40(a)(13).(Id. at 10).In a separate indictment, Mr. Gavin was indicted on one count of attempted murder, for attempting to shoot a police officer, Danny Smith, with a gun.(Id. at 13-15).

Mr. Gavin was represented at trial by court appointed attorneys H. Bayne Smith and John H. Ufford, II.(Vol. 1, Tab 1at 9).He was convicted on November 6, 1999, of attempted murder and both counts of capital murder.(Vol. 11, Tab 24at 1211-18).The penalty phase of the trial was held on November 8, 1999.(Vol. 11, Tab 25at 1271 - Vol. 12, Tab 34at 1301).The jury recommended by a vote of 10 to 2 that Mr. Gavin be sentenced to death.(Vol. 12, Tab 34at 1300;Vol. 1, Tab 1at 152).On January 5, 2000, the trial judge accepted the jury's recommendation and sentenced Mr. Gavin to death.(Vol. 12, Tab 36at 1315).Additionally, the trial judge sentenced Mr. Gavin to a consecutive term of life imprisonment for the attempted murder conviction.(Vol. 12, Tab 35at 1301).

Stephen P. Bussman represented Mr. Gavin on direct appeal.(Vol. 2at 201).The Alabama Court of Criminal Appeals affirmed Mr. Gavin's convictions and sentences on September 26, 2003, and denied his application for rehearing on November 14, 2003.Gavin v. State , 891 So. 2d 907(Ala. Crim. App.2003).The Alabama Supreme Court denied Mr. Gavin's certiorari petition on May 28, 2004.Ex parte Gavin , 891 So. 2d 998(Ala.2004).The United States Supreme Court denied Mr. Gavin's petition for a writ of certiorari on January 24, 2005.Gavin v. Alabama , 543 U.S. 1123, 125 S.Ct. 1054, 160 L.Ed.2d 1073(2005).

On May 26, 2005, Mr. Gavin, through new counsel, timely filed a Rule 32 petition in the Circuit Court of Cherokee County.(Vol. 19at 21-36).On June 20, 2005, the trial court returned the petition to Mr. Gavin's attorneys for failure to use or follow the form required by Rule 32.6 of the Alabama Rules of Criminal Procedure, and permitted him to re-file the petition within thirty days.(Id. at 45).Mr. Gavin re-filed his petition in proper form on July 19, 2005.(Id. at Tab 58).On June 20, 2006, the trial court dismissed many of Mr. Gavin's claims, but granted him leave to file an amended petition expanding upon his ineffective assistance of counsel claims.(Vol. 20, Tab 61at 272-94).

Mr. Gavin filed an amended petition on August 18, 2006.(Vol. 20, Tab 62at 297-352).In January, 2007, the trial court dismissed all claims in the petition, except the ineffective assistance of counsel claims.(Vol. 21, Tab 64at 581-88).The trial court held an evidentiary hearing on Mr. Gavin's ineffective assistance of counsel claims in February, 2010.(Vol. 37, Tab 78at 63 - Vol. 40at 670).At the end of the hearing, the parties were afforded time to file post-hearing briefs.(Vol. 40at 664).Instead of filing a post-hearing brief, Mr. Gavin filed a second amended Rule 32 petition on April 2, 2010.(Vol. 32, Tab 70).On August 17, 2010, the trial court concluded that Mr. Gavin's second amended Rule 32 petition should be treated as a post-hearing brief.(SeeVol. 36, Tab 76at 3491).

On April 18, 2011, the trial court denied all of Mr. Gavin's ineffective assistance of counsel claims.(Id. at 3484-523).The Alabama Court of Criminal Appeals affirmed the trial court's denial of collateral relief on August 22, 2014, (Vol. 46, Tab 85), and overruled Mr. Gavin's application for rehearing on March 20, 2015(Vol. 46, Tab 86).On October, 23, 2015, the Alabama Supreme Court denied Mr. Gavin's certiorari petition.(Vol. 47, Tab 88).The United States Supreme Court denied his certiorari petition on March 20, 2017.Gavin v. Alabama , ––– U.S. ––––, 137 S. Ct. 1325, 197 L.Ed.2d 516(2017).

On February 16, 2016, Mr. Gavin filed a § 2254 petition in this court.(Doc. 1).Respondents filed an answer and brief on November 7, 2016.(Docs. 32, 33).Mr. Gavin filed a reply brief on February 20, 2017.(Doc. 33).Respondents filed an amended answer and brief on June 16, 2017.(Docs. 43, 44).Mr. Gavin filed an amended reply brief on October 12, 2017.(Doc. 60).

II.THE OFFENSE OF CONVICTION

In its opinion on direct appeal, the Alabama Court of Criminal Appeals summarized the evidence in the case:

A little after 6:30 p.m. on March 6, 1998, Clayton, a contract courier for Corporate Express Delivery Systems, Inc., was shot and killed while sitting in a Corporate Express van outside the Regions Bank in downtown Centre.Clayton had finished his deliveries for the day and had stopped at Regions Bank to obtain money from the ATM in order to take his wife to dinner.

There were four eyewitnesses to the crime, two of whom positively identified Gavin as the shooter.

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