Smith v. Davenport et al

Filing 34

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 8/29/14. (SAC )

FILED
2014 Aug-29 PM 03:52
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TONY LEE SMITH,
Petitioner,
v.
CARTER DAVENPORT and THE
ATTORNEY GENERAL FOR THE
STATE OF ALABAMA,

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Case Number: 2:11-cv-03271-WMA-JHE

Respondents.
MEMORANDUM OPINION
On August 11, 2014, the magistrate judge entered a Report and Recommendation, (doc. 32),
recommending that the petition for writ of habeas corpus be dismissed with prejudice. Petitioner has
filed objections. (Doc. 33). The court has considered the entire file in this action, together with the
report and recommendation, and has reached an independent conclusion that the report and
recommendation is due to be adopted and approved.
Accordingly, the court hereby adopts and approves the findings and recommendation of the
magistrate judge as the findings and conclusions of this court. The petition for writ of habeas corpus
is due to be DISMISSED. A separate Order will be entered.
This Court must issue or deny a certificate of appealability when it issues a final order
adverse to a Petitioner. Rules on 2254 Habeas Cases, Rule 11(a). This Court may issue a certificate
of appealability “only if the applicant has a made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing, a “petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues presented

were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (internal quotations omitted).
The Court finds Petitioner has made a substantial showing of the denial of his constitutional
rights under the Double Jeopardy Clause of the United States Constitution. Based on the habeas
standard of deference to state court decisions (by which the Court is to determine if the state court
applied the governing legal principle “ reasonably” even if “incorrectly,” see Ventura v. Attorney
Gen., Fla., 419 F.3d 1269, 1286 (11th Cir. 2005)), the Court believes the state court reasonably
applied the precedent of the United States Supreme Court, but the Court also finds the issue close
enough that reasonable jurists could find that determination debatable. Accordingly, Petitioner is
GRANTED a certificate of appealability on the issue of whether the state court unreasonably applied
the governing legal principle to the facts when it found the facts supporting Petitioner’s resisting
arrest conviction and those supporting his second-degree assault conviction were “two separate and
mutually exclusive events,” (doc. 7-39 at 2).
DONE this 29th day of August, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE