Gray v. Davis
| Decision Date | 13 May 2014 |
| Docket Number | Case No. 1:11-cv-630 (AJT/TCB) |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | RICKY JAVON GRAY, Petitioner, v. KEITH W. DAVIS, WARDEN, Sussex I State Prison, Respondent. |
Petitioner Ricky Javon Gray ("Gray" or "Petitioner") presents four claims in his Amended Petition for Habeas Corpus [Doc. No. 146]. This matter is before the Court on the Motion to Dismiss the Amended Petition [Doc. No. 152] of Respondent Keith W. Davis, Warden, Sussex I State Prison (the "Warden" or "Respondent").
The facts pertaining to Gray's underlying offense conduct and the procedural history of the case is set forth in the Court's Memorandum Opinion dated April 27, 2012 [Doc. No. 68], which is incorporated herein by reference.
By Amended Order dated May 18, 2012 [Doc. No. 74], the Court dismissed Petitioner's Petition for a Writ of Habeas Corpus and certified two questions, the second of which was whether Petitioner was entitled to counsel in addition to his state habeas counsel for the purpose of assessing whether there existed any defaulted claims that could be asserted in federal habeas proceedings under the holding of Martinez v. Ryan, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012). By Order dated June 7, 2013 [Doc. No. 91], the Fourth Circuit "conclude[d] that Gray wasentitled to the appointment of independent counsel in his federal habeas proceeding [for the purpose of assessing whether there existed any cognizable defaulted claims under the holding of the United States Supreme Court in Martinez v. Ryan]... and vacate[d] the judgment and remand[ed] for further proceedings, deferring consideration of his first claim." Doc. No. 91.1 As directed by the Fourth Circuit, such new counsel were to "vigorously examine and present if available potential claims of ineffective assistance" of counsel in his state habeas proceedings that could excuse otherwise defaulted claims of ineffective assistance of trial counsel, as set forth in Martinez." Id.
On July 3, 2013, this Court appointed independent counsel for Gray and granted Petitioner leave to file an amended petition for a writ of habeas corpus "based on any claims, not previously presented, which may be asserted based on the holding in Martinez." Doc. No. 94. On July 24, 2013, Gray filed his Motion for the Appointment of Counsel [Doc. No. 96], requesting that the Court appoint additional independent counsel, which the Court granted by its Order dated August 2, 2013 [Doc. No. 102]. Subsequently, on August 20, 2013, Gray filed his Renewed Motion for Appointment of Mental Health Expert [Doc. No. 104] and Motion for Appointment of Investigators [Doc. No. 105], both of which this Court denied by its Orders dated August 28, 2013 [Doc. Nos. 112, 113]. Petitioner then filed his Motion for Appointment of Pharmacologist [Doc. No. 115] on September 6, 2013, requesting the appointment of Dr. Wilkie A. Wilson to assist in the investigation and presentation of a defense of voluntary intoxication, focusing on the effects of PCP on the human brain, and specifically on Petitioner's mental state at the time of the crime. After hearing oral argument, the Court granted that motion in its Order dated September 20, 2013 [Doc. No. 120]. On September 27, 2013, Gray filed his Motion for Appointment of Investigator [Doc. No. 122], requesting that Stephanie Bouis, a clinical social worker and capital mitigation specialist beappointed to further investigate the voluntary intoxication claim by "interview[ing] lay witnesses who observed Petitioner's substance abuse and symptoms of intoxication during the relevant time period." By Order dated October 7, 2013 [Doc. No. 132], the Court granted that motion. Gray then filed his Motion for Appointment of Neuropsychologist [Doc. No. 143] on November 1, 2013, requesting that Dr. Kristine M. Herfkens be appointed by this Court to assist Dr. Wilson in rendering his opinion, specifically to "answer the question of the extent to which organic brain damage may have exacerbated the impact of Petitioner's intoxication and impairment at the time of the crime." By Order dated November 8, 2013 [Doc. No. 139], the Court granted that motion. On December 16, 2013, Petitioner filed his Amended Petition for a Writ of Habeas Corpus [Doc. No. 146], in which he presents four claims:
(1) ineffective assistance of state trial counsel in failing to present evidence of Gray's voluntary intoxication at the time of the crime (Claim XI);
(2) ineffective assistance of state habeas counsel in failing to interview the jurors on the grounds that, had they done so, they would have found that Gray's conviction and death sentence were tainted by one juror's reliance on extraneous influences in violation of his constitutional rights (Claim XII);
(3) ineffective assistance of state trial counsel in failing to present in mitigation a complete picture of the physical, sexual, and emotional abuse perpetrated on Gray (Claim XIII); and
(4) cumulatively ineffective assistance of state trial counsel which was thus prejudicial (Claim XIV).
On January 31, 2014, the Warden filed his Rule 5 Answer and Motion to Dismiss the Amended Petition [Doc. No. 152]. On March 14, 2014, the Court heard oral argument, following which the Court took the Motion to Dismiss under advisement.
Pursuant to the Fourth Circuit's mandate, this Court must consider any "potential claims of ineffective assistance" of counsel in Petitioner's state habeas proceedings that could excuse otherwise defaulted claims of ineffective assistance of trial counsel, as set forth in Martinez. See Doc. No. 91.
A claim is procedurally defaulted if a prisoner fails to abide by a state procedural rule, such that the claim is not properly presented in a state court proceeding. Martinez v. Ryan, 132 S. Ct. at 1316 (citing Coleman v. Thompson, 501 U.S. 722, 747-748, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)). Generally, a procedural default may be forgiven, and thus a federal court may review the defaulted claim, only if a prisoner is able to show both "cause" for the default and "prejudice" from a violation of federal law. See Wainwright, 433 U.S. at 84; Coleman, 501 U.S. at 750. Under the Wainwright/Coleman test, errors on the part of defense counsel in the post-conviction proceedings do not qualify as "cause" to excuse a procedural default, thus barring such procedurally defaulted claims from being heard in federal courts. Coleman, 501 U.S. at 754. In Martinez, the Supreme Court adopted a "narrow exception" to the rule adopted in Coleman. Martinez, 132 S. Ct. at 1315. This "narrow exception" provides that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. The Martinez exception is an equitable, not a constitutional rule, and, as the Fourth Circuit noted in its Order remanding this case [Doc. No. 91], quoting Trevino v. Thaler, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013), a claim falls within the Martinez exception where:
(1) the claim of 'ineffective assistance of trial counsel' was a 'substantial' claim; (2) the 'cause' consisted of there being 'no counsel' or only 'ineffective' counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the 'initial' review proceeding in respect to the 'ineffective-assistance-of-trial-counsel claim'; and (4) state law requires that an 'ineffectiveassistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.'
Tevino, 133 S. Ct. at 1918 (quoting Martinez, 132 S. Ct. at 1318) (emphasis original).
Imbedded in this Martinez formulation are multiple unsettled issues. With respect the "substantial claim" requirement, it is unclear how the facts are to be viewed for the purpose of determining whether a claim is "substantial," that is, whether a test akin to that applicable to summary judgment applies or whether the Court may weigh the evidence. It is also unclear whether the "substantial claim" standard of proof, or a higher or lower standard, applies to the "cause" prong of the Martinez test that requires that state habeas counsel was "ineffective." Likewise unclear are what "prejudice" showings are required, given that (1) within the context of a Martinez ineffective assistance of counsel ("IAC") claim, the Strickland standard applies to both whether trial counsel was ineffective (for the purpose of determining whether the IAC claim is "substantial") and also whether state habeas counsel was ineffective (for the purposes of determining whether the "cause" prong of the Martinez analysis is satisfied). Unsettled in this regard is whether the Strickland prejudice prong applicable to the "cause" prong of the Martinez analysis is based on the prospects of a different result in the state court habeas proceedings or the trial court proceedings, or both. It must also be remembered, the Martinez exception applies only to establishing the "cause" prong of the Coleman "cause and prejudice" test, so that it would appear that once the "cause" prong of the Martinez test is satisfied, a federal habeas petitioner must still satisfy the "prejudice" prong of theWainwright and Coleman test; and the question arises whether that showing of prejudice imposes any additional evidentiary showing.2
As to the requirement that a petitioner make a showing that his defaulted claim is "substantial," we know from Martinez that a claim is "substantial" if it has "some merit." Martinez, 132 S. Ct. at 1318-19. In adopting that standard, the Court in Martinez referenced generally the standards for issuing certificates of appealability, as set forth in Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).3 Stated otherwise, a claim is "insubstantial" i...
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