Davis v. Bolling et al

Filing 17

MEMORANDUM OPINION ADOPTING and ACCEPTING the 14 Magistrate Judge's Report and Recommendation. Signed by Judge Annemarie Carney Axon on 3/7/2019. (JLC)

FILED
2019 Mar-07 AM 11:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEE ERNEST DAVIS, JR.,
Petitioner,
v.
WARDEN CHRISTOPHER
GORDY, et al.,
Respondents.

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Case No.: 2:16-cv-00824-ACAJEO

MEMORANDUM OPINION
The magistrate judge filed a report and recommendation on January 31, 2019,
recommending that the court dismiss Petitioner’s 28 U.S.C. § 2254 petition for
habeas corpus relief. (Doc. 14). On February 11, 2019, Petitioner filed objections
to the report and recommendation. (Doc. 15). On February 25, 2019, Petitioner
supplemented his objections. (Doc. 16).
Petitioner argues that the court should not dismiss his claims as untimely
because he is entitled to equitable tolling and because he is actually innocent of the
offenses. (Doc. 15 at 2). However, Petitioner did not raise these arguments in his
petition or his response. (Doc. 1; Doc. 9). Moreover, Petitioner only makes
conclusory allegations in his objections that he is entitled to equitable tolling and
actually innocent of the offenses without offering any factual support of the same.
Accordingly, Petitioner is not entitled to equitable tolling and his claims are barred

by the statute of limitations.
Petitioner reasserts his claims that the trial court erred when it denied his
motions and petitions for a reduced sentence under Ala. Code § 13A-5-9.1 and
Kirby v. State, 899 So. 2d 968 (Ala. 2004). (Doc. 15 at 1–3). However, Petitioner
does not address the magistrate judge’s conclusion that any claim that Alabama
courts failed to follow their own laws regarding petitioner’s eligibility for a reduced
sentence under § 13A-5-9.1 is not cognizable in a federal habeas action. Carrizales
v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983); Curry v. Culliver, 141 Fed.
App’x 832, 834 (11th Cir. 2005).
Moreover, Petitioner has not shown how the trial court’s failure to reduce his
sentence under Ala. Code § 13A-5-9.1 violates his constitutional rights to due
process or equal protection. Petitioner merely states that he should have been
afforded “the exact same relief” as defendants in other criminal cases who had
counsel and received a sentence reduction. (Doc. 15 at 3). Petitioner reasons he
was denied a sentence reduction because he did not have money to hire counsel.
(Id.).

However, Petitioner fails to show that other defendants were granted a

sentence reduction because of their race, religion, or some other constitutionally
protected basis in order to state an equal protection claim. See Sweet v. Sec’y, Dept.
of Corrs., 467 F.3d 1311, 1318–19 (11th Cir. 2006). Evidence which merely
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indicates disparity of treatment of even arbitrary administration of state powers,
rather than instances of purposeful or invidious discrimination, is insufficient to
show discriminatory intent. See McCleskey v. Kemp, 481 U.S. 279, 292–94 (1987).
Accordingly, Petitioner’s due process and equal protection claims are due to be
dismissed.1
Having carefully considered de novo all of the materials in the court file,
including the report and recommendation and the objections thereto, the court
ADOPTS the report and ACCEPTS the recommendation.

The court ORDERS

that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the
above-styled cause is due to be denied and dismissed with prejudice. A separate
order will be entered.
The court may issue a certificate of appealability “only if the applicant has
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
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Petitioner also argues that the magistrate judge failed to follow Ninth Circuit Court of
Appeals’ case law when analyzing his due process and equal protection claims. (Doc. 16 at 1).
However, this court is bound by case law from the Eleventh Circuit Court of Appeals, not the
Ninth Circuit. See Fox v. Acadia State Bank, 937 F.2d 1566, 1570 (11th Cir. 1991) (“[A] district
court in this circuit is bound by this court’s decisions.”); Springer v. Wal-Mart Assocs.’ Group
Health Plan, 908 F.2d 897, 900 n.1 (11th Cir. 1990) (“[T]he district court is bound by controlling
Eleventh Circuit precedent.”) (emphasis in original).
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“the issues presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). This
court finds petitioner’s claims do not satisfy either standard.
DONE and ORDERED this March 7, 2019.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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