Davis v. Allen

Filing 55

MEMORANDUM OPINION on Rule 59 Motion as more fully set out therein. Signed by Judge C Lynwood Smith, Jr on 10/12/2018. (AHI)

FILED
2018 Oct-12 PM 12:43
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JIMMY DAVIS, JR.,
Petitioner,
v.
JEFFERSON S. DUNN,
Commissioner, Alabama
Department of Corrections,
Respondent.

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Civil Action No. 1:07-CV-518-CLS

MEMORANDUM OPINION
This court entered a Memorandum of Opinion and Order of Dismissal on May
26, 2016, denying Jimmy Davis’s petition for writ of habeas corpus relief from his
state conviction for capital murder and resultant death sentence, and denying a
certificate of appealability.1
Davis subsequently filed a timely motion to alter, vacate, or amend the
judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.2 This
opinion addresses that motion.
I. STANDARD OF REVIEW

1

See doc. nos. 50 (Memorandum Opinion) and 51 (Order of Dismissal).

2

See doc. no. 52 (Motion to Alter, Vacate, or Amend).
1

The text of Rule 59(e) does not set forth specific grounds for relief.3
Accordingly, the decision of whether the prior judgment should be altered or
amended is committed, at least in the first instance, to the sound discretion of the
district court. See, e.g., American Home Assurance Co. v. Glenn Estess & Associates,
Inc., 763 F.2d 1237, 1238-39 (11th Cir. 1985).
The only grounds for granting a Rule 59(e) motion are newly-discovered
evidence or manifest errors of law or fact. United States v. Marion, 562 F.3d 1330,
1335 (11th Cir. 2009) (citing Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007)
(per curiam)).
Moreover, Rule 59(e) motions may “‘not be used to relitigate old matters or to
present arguments or evidence that could have been raised prior to judgment.’”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quoting
Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir.
2005)).
Finally, a judgment should not be altered or amended when it would serve no
useful purpose. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice and Procedure § 2810.1 (3d ed. 2012).

3

Federal Rule of Civil Procedure 59(e) states simply that “[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment” (alteration supplied).
2

II. ISSUES PRESENTED FOR RULE 59(e) REVIEW
A.

Does this Court’s Decision Denying Relief on Davis’s Claim That Counsel
Were Ineffective for Failing to Obtain Mitigation Evidence Regarding His
Childhood Trauma and Depravity Conflict With the Eleventh Circuit’s
Decision in Daniel v. Commissioner, Alabama Department of Corrections,
822 F.3d 1248 (11th Cir. 2016)?
Davis argues that the court should alter or amend its judgment denying relief

on his claim that his trial attorneys were ineffective for failing to obtain mitigation
evidence regarding his childhood trauma and depravity because that decision
conflicts with the Eleventh Circuit’s decision in Daniel v. Commissioner, Alabama
Department of Corrections, 822 F.3d 1248 (11th Cir. 2016).4 He maintains that,
under Daniel, he met both the performance and prejudice prongs of Strickland v.
Washington, 466 U.S. 668 (1984).5
The petitioner in Daniel argued that he received ineffective assistance of
counsel because his trial attorneys failed to investigate and present mitigation
evidence during the penalty phase of his trial. See 822 F.3d at 1254. Carolyn Daniel,
the petitioner’s mother and sole witness called by the defense, briefly testified as to

4

Doc. no. 52 (Motion to Alter, Vacate, or Amend), at 2-18.

5

Id. “To state a facially sufficient ineffective assistance of counsel claim, [a petitioner] must
show both that his trial counsel’s performance was deficient and that he was prejudiced as a result.”
Daniel v. Commissioner, Alabama Department of Corrections, 822 F.3d 1248, 1261-62 (11th Cir.
2016) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)) (alteration supplied).
3

“some of the low points” in her son’s life.6 Less than three hours after the penalty
phase began, the jury returned a 10-2 verdict in favor of imposing the death penalty.
Id. Following a sentencing hearing, Daniel was sentenced to death by the trial court.7
Id. Daniel’s convictions and death sentence ultimately were upheld in the appellate
courts. Daniel v. State, 906 So. 2d 991 (Ala. Crim. App. 2004), cert. denied, id. (Ala.
2005), cert. denied, sub nom. Daniel v. Alabama, 546 U.S. 405 (2005).
Daniel timely filed with the aid of new counsel a Rule 32 petition in the trial
court. Daniel’s second amended petition was accompanied by twenty-one exhibits,
including school, mental health, and social service records, along with
other documentary evidence, all in support of Mr. Daniel’s allegations
6

Specifically, Ms. Daniel told the jury that her son suffered from

Attention Deficit Hyperactivity Disorder (ADHD) and dyslexia; that he dropped out
of school in the tenth grade; and that Mr. Daniel’s biological father died when Mr.
Daniel was three. Mrs. Daniel also testified that Mr. Daniel’s stepfather, Earnest
Western, “abused [him] and I didn't know about it for a long time.” She described
only one specific instance of abuse. When Mr. Daniel was about twelve years old
Mrs. Daniel said she left him “[o]ne night” with his stepfather and, when she got
home, Mr. Daniel told her “that he had gotten a beating by his stepdad” and that he
had blood in his urine. When she took Mr. Daniel to the hospital, “[i]t was
discovered that one of his kidneys had been damaged from the beating.” As a result,
protective services removed Mr. Daniel and his two sisters from the home for about
ten months, and Mr. Daniel was placed in a group home. When the family reunited,
Mrs. Daniel says Mr. Daniel was “withdrawn” and “always seem[ed] like he was
hurting on the inside.” Mr. Daniel started drinking beer at about age sixteen, and “on
one occasion” Mrs. Daniel found marijuana in his room. Finally, Mrs. Daniel
pleaded to the jury for her son's life.
Daniel, 822 F.3d at 1256 (alterations in original).
7

Daniel’s mother and sister testified at the sentencing hearing, asking the court to spare
Daniel’s life. Id.
4

that if trial counsel had conducted even a cursory investigation of his
background, they would have discovered compelling mitigating
evidence.
Daniel, 822 F.3d at 1257. The trial court summarily dismissed the petition without
allowing discovery or conducting an evidentiary hearing. Id. The Alabama Court of
Criminal Appeals affirmed the trial court’s summary dismissal of the petition at the
pleading stage because Daniel failed to sufficiently and specifically plead his claims
under Alabama law. Id. at 1258. The Alabama Supreme Court summarily denied
certiorari review. Id.
Daniel timely filed a federal habeas petition, accompanied by motions for
discovery and an evidentiary hearing. Id. The district court denied relief without an
evidentiary hearing or discovery, finding that the Rule 32 court properly dismissed
Daniel’s penalty phase ineffective assistance of counsel claim for failure to plead the
claim with sufficient specificity or failure to state a claim. Id. at 1258, 1260.
The Eleventh Circuit Court of Appeals vacated the district court’s order
denying the claim, finding that the Rule 32 state courts’ summary dismissal of the
claim was contrary to and an unreasonable application of clearly established Supreme
Court precedent. Daniel, 822 F.3d at 1263-81. The Court first found that Daniel’s
“second amended Rule 32 petition pleaded more than sufficient specific facts about
trial counsel’s acts and omissions to show their penalty phase investigation ‘fell
5

below an objective standard of reasonableness.’” Id. at 1263 (quoting Strickland, 466
U.S. at 688).
In concluding that “no competent attorney in 2003 would have failed to
conduct timely and thorough background interviews with the defendant and his
immediate family members when they were ready, willing, and available to speak
with trial counsel and even contacted counsel on their own,” id. at 1264-65, the
Eleventh Circuit pointed to the following factual allegations:
For starters, Mr. Daniel pleaded that trial counsel had almost no
meaningful contact with him or his family prior to trial. Specifically, he
pleaded that “[t]rial [c]ounsel first met [him] at the preliminary hearing
for his capital case in October of 2001. The next time [t]rial [c]ounsel
spoke to Mr. Daniel was sixteen months later – just three days before the
commencement of Mr. Daniel’s capital trial.” During the sixteen
months Mr. Daniel was waiting for his trial, he wrote letters to trial
counsel seeking to meet with them about his case. “Trial [c]ounsel
simply ignored his request for a meeting.” Concerned about having
such little contact with his trial counsel, Mr. Daniel wrote the Alabama
Bar Association before his trial to lodge a complaint against trial
counsel. Then when trial counsel did eventually meet with Mr. Daniel,
rather than “focusing on the information about his case that Mr. Daniel
was attempting to relay, [trial counsel] Mr. Hughes was far more
interested in discussing Mr. Daniel’s complaint to the Alabama Bar
Association.”
Mr. Daniel also pleaded that his family fared no better in their
attempts to communicate with trial counsel and as a result, “[t]rial
[c]ounsel never interviewed in any meaningful way any members of
[his] immediate family.” Specifically, Mr. Daniel pleaded that trial
counsel ignored numerous efforts by his mother and sister to provide
relevant background information:
6

46. Carolyn Daniel, Mr. Daniel’s mother, made a
series of attempts to contact Mr. Hughes by phone and left
several messages at his office. When Mr. Hughes finally
returned one of those messages, he gave her no more than
twenty minutes of his time and expressed no interest in
meeting her or having further discussions. The extent of
[t]rial [c]ounsel’s pretrial communications with Mr.
Daniel’s mother was one brief telephone call.
47. Had [t]rial [c]ounsel had even a five minute
conversation of substance with Mrs. Daniel, it is likely that
they would have discovered facts about Mr. Daniel’s tragic
childhood, including that when Mr. Daniel was just 3 years
old he was present when his mother shot and killed his
biological father . . . and that his stepfather emotionally,
physically, and sexually abused Mr. Daniel including
forcing him to engage in sex acts with his two older sisters
when Mr. Daniel was less than ten years old.
48. Tammi Daniel, Mr. Daniel’s sister, also
attempted to contact [t]rial [c]ounsel by telephone on a
number of occasions before her brother’s trial. After Mr.
Hughes failed to return a single one of her calls, she took
matters in her own hands and drove all the way from
Atlanta to Birmingham to speak to Mr. Hughes in person.
He was unavailable.
49. Despite Tammi’s demonstrated willingness to
assist in her brother’s defense, Mr. Hughes spoke with
Tammi for less time than he spoke to her mother in the
sixteen months leading up to trial. Ms. Haskins never
spoke with her.
In the one or two abbreviated
conversations that they had, Mr. Hughes never asked Ms.
Daniel about . . . her family background, Mr. Daniel’s
character, or her opinion of Mr. Daniel’s guilt. Nor did he
seek her assistance in contacting any other family
members. Had Mr. Hughes engaged in a meaningful
7

conversation with Mrs. Daniel he would have learned
about Mr. Daniel’s past.
Daniel, 822 F.3d at 1263-64 (alterations and ellipsis in original) (footnote omitted).
In addition, the Eleventh Circuit found that the second amended Rule 32
petition pleaded sufficient facts to show prejudice under Strickland and its progeny.
Id. at 1274-77. The court found that the allegations of Daniel’s excruciating life
history, which were never presented to the jury, were sufficient to establish a
reasonable probability that, but for counsel’s failure to present the evidence to the
jury, he would have been sentenced to life without parole instead of death:
Mr. Daniel’s second amended Rule 32 petition specifically
pleaded that trial counsel’s deficient performance during the penalty
phase prejudiced him as follows:
192. Trial [c]ounsel’s absolute and admitted lack of
preparation for the penalty phase all but ensured that Mr.
Daniel’s constitutional rights would be violated. As a
result of [t]rial [c]ounsel’s gross ineffectiveness, the jury
never heard of the chronic physical and sexual abuse Mr.
Daniel suffered at the hands of Mrs. Daniel’s second
husband, despite obvious indications of the presence of
such evidence. The jury also never heard that Mrs. Daniel
shot and killed Mr. Daniel’s father when Mr. Daniel was
only three years old, or that she was incarcerated for this
crime, or that Mr. Daniel witnessed his father’s death as a
toddler. The picture [t]rial [c]ounsel painted for the jury of
Mr. Daniel’s mental capacity through Mrs. Daniel’s
testimony was also woefully incomplete. The jury never
heard of the chronic problems that Mr. Daniel had in
school, and was unaware that he had been diagnosed with
8

borderline intelligence by state officials at a young age and
likely suffered from mental retardation. Nor did the jury
hear that Mr. Daniel’s mother was formally diagnosed with
manic depression, a bipolar disorder that is known to run
in families, or that Mr. Daniel currently suffers from
auditory and visual hallucinations as a result of his
childhood trauma. The jury heard no evidence concerning
Mr. Daniel’s long and troubled history of addiction or his
nonviolent character, and was left with the impression that
he came close to committing the heinous crime of rape.
193. Had available mitigating evidence been
presented, there exists a reasonable probability that Mr.
Daniel would have been sentenced to life without
possibility of parole. See Wiggins, 539 U.S. at 536, 123
S.Ct. 2527 (noting that “had the jury been confronted with
this considerable mitigating evidence, there is a reasonable
probability that it would have returned with a different
sentence”); see also Collier, 177 F.3d 1184 (failure to
present the available evidence of defendant’s upbringing,
compassion, his poverty, and gentle disposition rendered
performance ineffective); Harris v. Dugger, 874 F.2d at
756 (because the jury knew little about defendant including
the fact that family members described defendant as a
devoted father, husband, and brother, counsel was
ineffective); Armstrong v. Dugger, 833 F.2d at 1434
(finding the “demonstrated availability of undiscovered
mitigating evidence clearly met the prejudice requirement”
under Strickland ); Blanco, 943 F.2d at 1505 (finding a
“reasonable probability” that “jury might have
recommended a life sentence” had counsel presented the
mitigating evidence that would have been available “had
they more thoroughly investigated”). But for [t]rial
[c]ounsel’s errors, there is a reasonable probability that the
jury would have recognized a very different balance of
aggravating and mitigating circumstances. See Strickland,
466 U.S. at 687, 104 S.Ct. 2052.
9

Beyond these paragraphs taken verbatim from Mr. Daniel’s
second amended Rule 32 petition, any fair reading of his Rule 32
petition and its supporting exhibits includes many details about Mr.
Daniel’s background and character that were never discovered by trial
counsel. We have quoted many of those details already, such as Mr.
Daniel’s childhood sexual abuse and borderline intellectual functioning,
and need not repeat them here.
Daniel, 822 F.3d at 1274-75 (alterations in original).
Here, Davis challenges this court’s conclusion that counsel’s failure to obtain
mitigation evidence concerning his childhood was excused by the failure of both
Davis and his family to divulge more detailed, unsavory evidence that he claims
would have been beneficial to his case.8 Davis argues that the court’s conclusion was
“inconsistent with the Eleventh Circuit’s recent opinion in the Daniel [c]ase, the facts
of which are similar to the facts at issue here.”9 Davis specifically points to this
court’s statement that:
Ultimately, this court must confront the fact that the Eleventh
Circuit has “repeatedly held that ‘[a]n attorney does not render
ineffective assistance by failing to discover and develop childhood
abuse that his client does not mention to him.’” Puiatti v. Secretary,
Florida Department of Corrections, 732 F.3d 1255) (11th Cir. 2013)
(quoting Williams v. Head, 185 F.3d 1233, 1237 (11th Cir. 1999))
(alteration in original).
Doc. no. 52 (Rule 59(e) Motion to Alter, Vacate, or Amend Judgment), at 3 (quoting

8

Doc. no. 52 (Motion to Alter, Vacate, or Amend), at 2-3.

9

Id. at 3 (alteration supplied).
10

doc. no. 50 (Memorandum Opinion), at 115)). Davis first argues that the “Head and
Puiatti cases are distinguishable and the contrary conclusion is proper.”10 He points
out that counsel in Head performed minimal work on the mitigation case, but had vast
criminal experience, while counsel in Puiatti performed an extensive pretrial
investigation, despite having a “misdirected mitigation strategy.”11 Davis argues that
in contrast, Giddens, his trial attorney, had “limited criminal experience,” “failed to
conduct any investigative work,” “did not prepare for trial until two weeks before,”
“failed to prepare for the penalty phase,” “failed to obtain and review available DHR
records,” and “failed to engage in meaningful discussions with Petitioner’s family or
friends.”12
Davis fails to mention, however, that Giddens did not represent him alone.
Rather, Giddens was assisted by co-counsel Jonathan L. Adams, who was described
by the trial court as an “experienced criminal defense attorney.” Davis, 9 So. 3d at
556. Because Davis failed to call Adams to testify at the Rule 32 evidentiary hearing,
see id. at 553, this court has no knowledge of the extent of his preparation for the
penalty phase of the trial. Even so, the trial court noted that “Adams’s involvement
in the case was not minor.” Id. at 564 (emphasis added). Thus, this court cannot say,
10

Id.

11

Id. at 6-7.

12

Id. at 7.
11

based solely on the allegations concerning attorney Giddens, that Puiatti and Head
are in fact distinguishable.
Davis further argues that this court’s finding conflicts with Daniel.
Specifically, he contends that, as in Daniel, there is nothing to indicate that his trial
attorneys’ limited investigation into his troubled family background was the product
of a “reasonable professional judgment.”13 He maintains that Lillie Bell Davis’s
testimony regarding Davis “‘giving her trouble,’ dropping out of high school, and
generally being uncontrollable” should have been a red flag alerting counsel to the
need for more investigation.14 Davis also argues that his case is like Daniel because
his mother’s trial testimony was “significantly exceeded” by her testimony at the Rule
32 hearing.15 Finally, he argues that counsel should have tried harder to get his family
to divulge family secrets, and that their failure in that regard was the result of
Giddens’ inadequate preparation and misunderstanding of mitigation testimony,
rather than the family’s “conspiracy of silence.”16
Davis is correct that the facts of his case are similar to Daniel, in that his
mother’s trial testimony was “significantly exceeded” by the testimony she gave at

13

Id. at 9-13.

14

Doc. no. 52 (Motion to Alter, Vacate, or Amend), at 10-11.

15

Id. at 11.

16

Id. at 12-13.
12

the Rule 32 hearing. Even so, the differences between the facts of his case and
Daniel do not warrant altering or amending this court’s judgment.
In preparing for the penalty phase, trial counsel interviewed Davis, his mother,
two of his siblings, and a cousin. Davis, 9 So. 3d at 553-66. At trial, counsel
presented the following mitigation evidence:
[Davis] called three witnesses: his mother, Lillie Bell Davis; his
first cousin, Andre Lamont Sigler; and a counselor, Annie M. Storey.
His mother testified generally about [Davis’s] background and family
life. She stated that she and her husband, who was [Davis’s] father,
separated when [Davis] was one year old, and that [Davis] never had the
benefit of a father in the home when he was growing up. She stated that
[Davis] went to Detroit to live with his father when he was 15 years of
age, but that his father died shortly thereafter and that his death was
devastating to [Davis]. She further testified that she began to have
trouble with [Davis] when he was about 9 years old; that he would
misbehave at school and at home; that he dropped out of school when
he was 16; that he would not work, would stay out at night, and was
frequently in trouble; that after he turned 17, she could not handle him;
and that he left home when he was 19. She asked the jury to spare her
son’s life. Sigler also testified about [Davis’s] background and home
life. He stated that [Davis] missed not having a father in the home; that
because of his circumstances he ‘missed a lot’ when he was growing up;
that when he was growing up he had no one to rely on, to talk to, or to
help him; that when his father died he was noticeably affected and his
appearance and attitude changed; and that he had not had the advantages
that Sigler had had. Sigler also asked the jury to recommend a sentence
of life imprisonment without parole. Storey, a counselor employed by
the Calhoun–Cleburne Mental Health Center and the Oxford city school
system, testified that she administered intelligence and diagnostic
educational tests to [Davis] before his trial; that he had a full-scale IQ
of 77, which placed him at the 6th percentile, i.e., 94% of the people in
his age group scored higher; that an IQ of 77 is considered within the
13

borderline range of intelligence; that he is functioning ‘between where
we would consider an individual who is mentally retarded and one who
is low average’; and that he functions at the 5th grade level
academically. [Davis] called only one witness at the second sentencing
hearing before the trial court, his mother, who testified again about her
son’s general background and family life, and asked the court for
mercy.”
Davis, 9 So. 3d at 563-64 (quoting Davis v. State, 718 So.2d at 1156) (alterations in
original).
While it is true that Davis presented more evidence at his Rule 32 evidentiary
hearing than his attorneys presented during the penalty phase of his trial, it is clear
that Davis and his family bear the bulk of the responsibility for intentionally keeping
that information from counsel. As the Alabama Court of Criminal Appeals found:
The circuit court made very detailed findings of fact on this issue,
and we quote extensively from its order:
In this claim, Davis has alleged that his trial counsel
were ineffective in regard to the penalty phase of his trial.
Quite simply, this claim can only be described as bizarre,
based on the fact that [Davis’s] own family seems to have
concealed important information from trial counsel.
Having considered the petition, having carefully reviewed
the evidence presented at this hearing, as well as at the
trial, and following the law governing Sixth Amendment
claims — including the recent decision in Wiggins v.
Smith, 123 S. Ct. 2527 (2003) — the court finds that this
claim is due to be denied.
This finding is not meant to imply that the Court did
not find compelling some of the mitigation evidence
14

presented by Petitioner during the evidentiary hearing.
Much of the evidence presented at the Rule 32 hearing
focused on abuse inflicted on Davis by his mother, Lillie
Bell Davis. The Court finds that Davis was abused by his
mother to an extent that would have rendered it relevant to
the issue of the appropriate penalty determination in this
case under existing law, though the Court, as explained
below, finds that this evidence is insufficient to establish
prejudice.
The Court’s major concern, however, is that if this
Court used this evidence to find the existence of deficient
performance the Court would be engaging in the
inappropriate activity of judging the performance of trial
counsel through the use of hindsight. Further, the Court
would be passing judgment on Attorney Adams without the
benefit of his testimony. Even worse, this Court would be
inappropriately shifting the blame for the inexcusable
actions of Davis’ family, particularly his mother, to his trial
counsel.
This Court must judge trial counsel’s
performance through their perspective at the time. That
being the case, the Court does not find that trial counsel’s
performance was deficient.
To the contrary, Jimmy Davis’ family — and to a
very large extent his mother — bears a heavy burden in this
case for their role in this matter. Because Adams did not
testify, this Court does not know what Adams did or did
not do in preparation for this case. The Court presumes,
however, that Adams acted reasonably in the questions he
asked his client and his client’s mother and in preparing for
the penalty phase. Further, the testimony of Giddens
establishes that at no time did Davis ever mention to his
attorneys the abuse suffered at the hands of his mother or
the intervention of DHR in the Davis home.
....
15

Further, the record establishes, by the Petitioner’s
own admission, that trial counsel did talk to two of Davis’
siblings. (RR. 863.) Further, even in the time frame
immediately before the evidentiary hearing, Davis did not
speak in detail of the abuse inflicted on him as a child,
instead generalizing that his background “wasn’t rosy” and
that he didn’t have any privileges, only “every day
survival.” (RR. 863.) When specifically questioned about
abuse, Davis only acknowledged that he was disciplined
with a switch, in stark contrast to the evidence that Davis
was, in fact, hit with belts, electrical cords, and with an
open hand. (RR. 863-864.) As noted by Dr. King, “he was
not – he was not too forthcoming. I had to ask a number of
questions about that.” (RR. 863-864.) Thus, the record
supports a finding that even Davis continued to participate
in the family’s conspiracy of silence, even on the eve of his
evidentiary hearing.
The Court also takes notice of the Petitioner’s
request, via motion to the Court, to keep the documents and
evidence concerning Petitioner’s abuse sealed. As noted
by counsel for the Petitioner, this was done out of the
family’s concern for their privacy. (RR. 161-163) It was
this desire by the family to keep this matter private – in
addition to their fear of Lillie Bell Davis – that the
witnesses before this Court during the evidentiary hearing
noted was the reason behind their years of silence.
Although the Petitioner’s motion to keep these records
private is not “evidence” in the formal sense of the word,
it does allow this Court to once again view the family
machinery that trial counsel were up against in this case,
machinery that even collateral counsel had to deal with in
this matter.
Further, this Court noted during the evidentiary
hearing that Lillie Bell Davis failed to make an appearance
during the entire week this matter was heard. Although
16

Lillie Bell Davis attended Davis’s capital murder trial, she
was noticeably absent as a witness or a spectator during the
entire week of the evidentiary hearing. Although the Court
can infer why Ms. Davis would choose not to come into
court once this secret was made public, it certainly sheds
light on the type of person Ms. Davis is and the type of
person trial counsel were misled by. In any event, it is
difficult for this Court to view the preparation of trial
counsel through their eyes when the very people (Lillie
Bell and the two, unnamed siblings) who were giving trial
counsel information – apparently misleading information
– were not called to recount their conversations with
Giddens and Adams.
Davis, 9 So. 3d at 553-54.
In denying Davis’s claim, this court found as follows:
It is apparent from a review of the state court record that counsel
did not conduct an extensive investigation for the penalty phase of this
capital trial. It is troubling that: counsel’s notes reflect only two visits
with Davis prior to trial; counsel spoke with Davis’s mother only once,
and then only days before the trial; much of the preparation, including
the evaluation that was performed the weekend prior to the Monday
morning trial, was conducted at the last minute; and, counsel did not
meet with the penalty phase witnesses prior to the day they were
scheduled to testify. It also is troubling that relevant mitigation
evidence existed, but was not discovered.
Even so, counsel did not have many leads to pursue mitigating
evidence. The record is clear that neither Davis nor his mother informed
Giddens of the abuse Davis suffered. FN.
FN. Because Davis did not call Adams to testify at the Rule
32 hearing, the court has no way of knowing if Adams was
informed of the abuse or the role Adams played in
preparing for the sentencing phase of the trial.
17

Any suggestion that Davis might have opened up to counsel if they had
spent more time with him, earning his trust, or perhaps explaining the
importance of being completely truthful and forthright, is mere
conjecture, and unsupported by any evidence. Although it undoubtedly
would have been far better if counsel had gathered more background
information prior to the capital sentencing proceeding, they were not
constitutionally required to complete any set checklist of tasks,
especially when counsel had received no information to indicate that
potential mitigating evidence existed.
Ultimately, this court must confront the fact that the Eleventh
Circuit has “repeatedly held that ‘[a]n attorney does not render
ineffective assistance by failing to discover and develop childhood
abuse that his client does not mention to him.’” Puiatti v. Secretary,
Florida Department of Corrections, 732 F.3d 1255 (11th Cir. 2013)
(quoting Williams v. Head, 185 F.3d 1223, 1237 (11th Cir. 1999))
(alteration in original).
Thus, it cannot be said that the determination of the Alabama
Court of Criminal Appeals — i.e., that counsel’s investigation was not
constitutionally deficient — was objectively unreasonable.
The Alabama court painstakingly considered the evidence
presented, applied the controlling Supreme Court precedent, and found
that,
[b]ased on the unusual circumstances presented in this case
and the fact that we do not know the extent of cocounsel’s
investigation because Adams was not called to testify, we
cannot say that counsel was ineffective for failing to
discredit the statements of Davis, his mother, and two of
his siblings, and to conduct yet more investigations.
Davis v. State, 9 So. 3d 539, 566 (Ala. 2008) (alteration supplied).
Davis has not shown that no reasonable factfinder would have arrived
at the same conclusion.

18

Doc. no. 50 (Memorandum Opinion), at 114-16 (alterations in original).
Unlike Daniel, where counsel had almost no meaningful contact with the
petitioner or his family prior to trial, and that despite repeated efforts by members of
the defendant’s family to talk to defense attorneys, Davis and his family intentionally
thwarted counsel’s attempts to uncover helpful mitigation evidence. Therefore, this
court’s judgment on this claim does not conflict with Daniel. Instead, Davis is merely
attempting to relitigate this claim by making an unpersuasive argument under Daniel.
There are no manifest errors of law or fact in the court’s resolution of this claim.17
B.

Does this Court’s Decision Denying Relief on Davis’s Claim That Counsel
Were Ineffective for Failing to Present Evidence Regarding His Prior
Felony Conviction Conflict With the Eleventh Circuit’s Decision in
Daniel?
Davis further argues that this court should alter or amend its judgment denying

relief on his claim that trial counsel were ineffective for failing to discover and
present mitigation evidence about his prior felony conviction, because that decision
conflicts with Daniel. In Daniel, the Eleventh Circuit found counsel’s mitigation
investigation was constitutionally inadequate:
We have also reviewed the record regarding trial counsel’s failure

17

Davis also argues that under Daniel, he met the prejudice prong of the Strickland test. Doc.
no. 52 (Motion to Alter, Vacate, or Amend), at 13-18. However, rather than actually making an
argument based on Daniel, he simply reiterates arguments he previously raised and adds further
arguments in support of the claim that could have been raised previously.
19

to investigate and challenge the state’s characterization of Mr. Daniel’s
prior burglary conviction as a violent felony involving attempted rape.
Mr. Daniel’s second amended Rule 32 petition pleaded specific and
sufficient facts to state a claim that trial counsel was deficient in that
regard as well. During the penalty phase presentation to the jury, the
state introduced documentary evidence that Mr. Daniel had a prior
conviction for second degree burglary to prove the aggravating
circumstance that he was previously convicted of a felony involving the
use or threat of violence. The state addressed the “nature” of Mr.
Daniel’s second degree burglary during its closing argument,
emphasizing to the jury that it “was a violent offense” that involved
“entering or remaining in someone’s home for the purpose of
committing rape.”
Mr. Daniel’s second amended Rule 32 petition specifically
alleged that “[t]rial [c]ounsel’s failure to investigate the circumstances
surrounding [Mr. Daniel’s burglary] conviction left the jury with exactly
the impression that the State wanted them to have” — “that Mr. Daniel
was a habitually violent criminal, deserving of the death penalty.” In
support, the Rule 32 petition alleged trial counsel “had statutory notice
of the aggravating circumstances on which the State could rely.” The
petition also pleaded that trial counsel had a “duty to investigate the
circumstances of Mr. Daniel’s prior convictions that could be used as
statutory aggravators under” Rompilla. Mr. Daniel alleged the records
of his prior burglary conviction were “available in the same courthouse
as his capital murder trial and . . . even a cursory review of these records
would have led [t]rial [c]ounsel to investigate the circumstances
surrounding Mr. Daniel’s conviction.”
Noting that government records describing his burglary
conviction did not mention the word “rape,” Mr. Daniel alleged that
“[t]rial [c]ounsel should have made some effort to discover how this
element of the offense was added” to the indictment. It is a fact that the
word “rape” does not appear in the case action summary, complaining
witness affidavit, or plea agreement that Mr. Daniel signed. Neither
does the word “rape” appear in an August 1998 report of the Alabama
Board of Pardons and Paroles that described the details underlying Mr.
20

Daniel’s second degree burglary conviction, as the Rule 32 petition
noted. Although the second amended Rule 32 petition acknowledged
that trial counsel objected to the introduction of Mr. Daniel’s burglary
conviction, it described the following:
[P]rior to the penalty phase, [t]rial [c]ounsel had
never even looked at Mr. Daniel’s record, much less
prepared arguments that could be advanced to negate the
impact of that record in the minds of the jury. Trial
[c]ounsel’s ignorance rendered it impossible for them to
rebut effectively the State’s aggravation case because, at
the time of trial, [t]rial [c]ounsel was completely ignorant
of the basis upon which that case would be built.
Besides the readily available legal records trial counsel failed to
discover, the Rule 32 petition alleged trial counsel “neither sought nor
discovered” other information that would have reduced the weight of the
prior violent felony aggravator. Mr. Daniel alleged that trial counsel
“did not make any effort to speak to Bonnie Stevenson, the complaining
witness in the second degree burglary charge.” According to an
interview of Ms. Stevenson conducted by postconviction counsel, “Mr.
Daniel never even came close to physically or sexually assaulting her or
any other member of her family. . . . To the contrary, for the duration of
the incident, Mr. Daniel was standing outside a barred window and had
no ability to access the apartment.”
Daniel, 822 F.3d at 1270-71 (alterations in original) (footnotes omitted).
In the present case, when discussing whether the Alabama Court of Criminal
Appeals’ denial of this claim was reasonable, this court held that:
Even if counsel’s performance could be considered
constitutionally deficient, however, Davis still must show that he
suffered prejudice as a result. Davis’s failure to prove prejudice appears
to have formed the primary basis of the decision of the Alabama Court
of Criminal Appeals to deny relief. That court noted that, unlike in
21

Rompilla, “there is no allegation that the file of Davis’s prior conviction
contained a plethora of mitigating evidence.” Davis v. State, 9 So. 3d
539, 568 (Ala. Crim. App. 2008). The court also relied heavily on the
fact that the jury knew that Davis was convicted of the lowest degree of
robbery, and that one other aggravating circumstance was present.
Davis argues that, if the jury had learned the “underlying facts of
[his] tagalong involvement in the group robbery of a few pizzas, the
outcome of the penalty phase might have been different.” Common
sense does suggest that testimony that Davis went along with a group of
boys who ordered and then stole several pizzas and $35 from a delivery
person, where no gun or weapon was involved and no one was injured,
could have been more compelling to a jury than an argument by defense
counsel that his prior conviction and sentence were for the lowest degree
of robbery in Alabama. Whether this would have been sufficient to
sway the jury, and the court, to impose a sentence of life without parole
is another matter. In Davis’s case, unlike in Rompilla, the State was not
relying solely on the prior conviction of a violent offense. It also relied
upon the fact that the murder was committed during a robbery as an
aggravating circumstance. Importantly, the fact of the robbery was
undisputed once Davis was convicted as charged.
Moreover, a review of the Rule 32 testimony of Jadie Boozer, the
attorney who represented Davis in his prior robbery case, reveals that
the facts surrounding the robbery actually could have been more
damaging to Davis than he claims. Although Boozer testified that no
weapon was used or recovered, he also testified on cross-examination
that the victim’s narrative in the police report stated that “[o]ne black
male wearing a jacket and some dark cloth over his face confronted [the
victim] and said, ‘[g]ive it up, man,’” that a “[b]lack male had his hand
– right hand in the jacket pocket as if he, black male, had a gun,” and
that the victim “gave up the money.” The events as recorded in the
police report mirror the facts of the instant case, and both sets of facts
suggest an escalating pattern of violence by Davis. Because there was
evidence of the threatened use of a firearm, the prior robbery, which
Boozer also testified had originally been charged as a first degree
offense, might not have been viewed by the jury as a mere “prank,” as
22

Davis now suggests. The state court’s denial of this claim was not an
unreasonable application of clearly established federal law, or based on
an unreasonable determination of clearly established federal law.
Doc. no. 50 (Memorandum Opinion), at 138-40 (alterations in original).
Unlike counsel in Daniel, who failed to object to, and move to correct the
record when the prosecution incorrectly informed the jury and the court that Daniel’s
prior felony conviction involved attempted rape, Davis’s counsel correctly informed
the jury and the court that Davis’s prior conviction was for third degree robbery, and
sought to minimize the effect of that conviction by explaining that it was “the lowest
degree of robbery recognized in Alabama.” Davis, 9 So. 3d at 568.
The judgment on this claim does not conflict with Daniel. Once again, Davis
is merely attempting to relitigate this claim by relying upon Daniel to make an
unpersuasive argument. There are no manifest errors of law or fact in the court’s
resolution of this claim.
C.

Should this Court, At a Minimum, Issue a Certificate of Appealability to
Permit Davis to Take His Penalty Phase Ineffective Assistance of Counsel
Claims to the Eleventh Circuit?
Finally, Davis “respectfully urges this Court to alter or amend the Court’s

Order of Dismissal with respect to the Court’s denial of a certificate of appealability
for all of the habeas claims and procedural rulings.”18 However, Davis limits his
18

Doc. no. 52 (Motion to Alter, Vacate, or Amend), at 24.
23

argument to his claim of ineffective assistance of counsel at the penalty phase of his
trial, reiterating the arguments he has already made in support of that claim.19 The
court declines to reconsider, alter, or amend its order denying a certificate of
appealability, because Davis has failed to make a substantial showing of the denial
of a constitutional right.
III. CONCLUSION
Accordingly, following review of Davis’s arguments, the record, and the
Memorandum of Opinion and Order of Dismissal previously entered as document
nos. 50 and 51, this court concludes that Davis’s Rule 59(e) motion to alter, vacate,
or amend judgment is due to be denied. An appropriate order will be entered
contemporaneously herewith.
DONE and ORDERED this 12th day of October, 2018.

______________________________
United States District Judge

19

Id. at 24-27.
24