Cathey v. Bolling et al
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 1/11/2019. (PSM)
2019 Jan-11 AM 09:48
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DAVEON L. CATHEY,
LEON BOLLING, et al.,
Case No.: 2:17-cv-01062-LSC-SGC
This is an action on a petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254 by Daveon L. Cathey, a state prisoner proceeding pro se. (Doc. 1).
Cathey challenges his 2013 conviction for murder in the Circuit Court of Shelby
County, Alabama on the grounds his trial counsel rendered constitutionally
deficient assistance by failing to (1) object to expert testimony regarding DNA
evidence or (2) contest the reliability and relevance of that testimony. (Id. at 1, 5,
7). On October 31, 2018, the magistrate judge entered a report pursuant to 28
U.S.C. § 636(b), recommending that habeas relief be denied because Cathey had
failed to allege facts sufficient to show prejudice resulting from his trial counsel’s
performance, regardless of whether that performance was constitutionally
deficient. (Doc. 10). After receiving an extension of time, Cathey filed objections
to the report and recommendation. (Doc. 13).
To establish ineffective assistance of counsel, a petitioner must demonstrate
his counsel’s performance fell below an objective standard of reasonableness and
that there is a reasonable probability the result of the proceeding would have been
different but for the deficiency. Strickland v. Washington, 466 U.S. 668, 687-92
The question for a federal court considering a habeas petitioner’s
ineffective assistance claim “is not whether [the] federal court believes the state
court’s determination under the Strickland standard was incorrect but whether that
determination was unreasonable – a substantially higher threshold.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation marks omitted).
Cathey challenges the magistrate judge’s conclusion he failed to allege facts
sufficient to show prejudice on three grounds.1 First, he cites the following excerpt
from the prosecution’s closing argument at trial:
Finally the hat at the scene with his DNA in it. The car is parked right
outside that house. BJ gets out. Bam, he’s shot. Takes off exactly in
the direction Jamarcus said he did and the hat comes off and it’s
sitting right there and his DNA is in it. Major component. One in
1.74 quadrillion. That is his DNA, ladies and gentlemen, inside that
hat. He was the one wearing it. He wasn’t just in Alabaster. He was
standing there gunning down Jonathan Williams and there is no doubt
Cathey claims the magistrate judge determined he did allege facts sufficient to show
constitutionally deficient performance by his trial counsel. (Doc. 13 at 5). This is incorrect. The
magistrate judge essentially determined it was unnecessary to address the performance of
Cathey’s trial counsel because even if that performance was deficient, Cathey could not satisfy
the prejudice prong of the Strickland inquiry. (Doc. 10 at 9) (“Whether in his Rule 32 petition or
§ 2254 petition Cathey alleged facts sufficient to show constitutionally deficient performance by
his trial counsel, he failed to allege facts sufficient to show resulting prejudice.”).
(Doc. 13 at 6 (quoting Doc. 7-5 at 57)).
During its closing argument the
prosecution also cited the testimony of Anthony Wooley, Bradley Gerhardt,
Brandon Brown, and Timothy Wade as evidence Cathey shot the victim. (Id. at
53-56). Given the testimony of these other witnesses, Cathey has not shown that
discrediting the testimony of the expert witness regarding DNA evidence would
have resulted in a different outcome at trial.
Second, Cathey notes the trial court did not give a jury instruction regarding
the credibility of and weight to be given expert testimony and appears to claim the
court would have given such an instruction had his trial counsel objected to the
expert testimony in question. (Doc. 13 at 6-7). 2 However, Cathey fails to show
how a jury instruction regarding expert testimony would have changed the
outcome of his trial – again, particularly in light of the testimony of Wooley,
Gerhardt, Brown, and Wade. Moreover, the United States Court of Appeals for the
Eleventh Circuit has held that jury instructions similar to those given by the court
at the conclusion of Cathey’s trial made it highly unlikely the jury believed it had
to accept an expert witness’ testimony as true and precluded the petitioner from
To the extent Cathey argues the trial court’s failure to give a jury instruction on expert
testimony entitles him to federal habeas relief, Henry has not previously raised this claim, which
is now procedurally defaulted. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (holding
that a state prisoner must first present his claims to the state courts by invoking one complete
round of the state’s appellate review process; Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir.
2001) (holding that where a petitioner has failed to exhaust his state remedies and those remedies
are no longer available to him, that failure is a procedural default precluding federal habeas
relief, unless an exception applies). The same is true to the extent Cathey argues his trial counsel
rendered ineffective assistance by failing to request a jury instruction on expert testimony.
satisfying Strickland’s prejudice prong with respect to the claim his counsel should
have requested a jury instruction regarding expert testimony. See Hernandez v.
Florida Dep’t of Corr., 470 F. App’x 721, 724-25 (11th Cir. 2012), cert. denied,
568 U.S. 945 (2012). 3
In Hernandez, the court instructed the jury that it was up to them to decide what evidence was
reliable or unreliable, described several factors to be considered in evaluating witness testimony,
and told them they could believe or disbelieve all or any part of the testimony of any witness.
470 F. App’x at 724. At the conclusion of Cathey’s trial, the court instructed the jury in relevant
part as follows:
Ladies and gentlemen, in arriving at the true facts you are directed to take into
account all of the testimony of all the witnesses. It is your duty to attempt to
reconcile all the testimony so that all the witnesses speak the truth if you can do
so reasonably. If you cannot reasonably reconcile all the testimony then the law
is that you come into the jury box with the common knowledge and understanding
that men and women gain in their every day affairs and in all their experience that
you have acquired in your dealings with people, through business, through your
social lives or in any other way. You should take this knowledge with you to use
and determine what the tru[e] facts are and the weight you are to give each part of
. . . . You may consider any interest a witness might have in the outcome of a
case before the Court. You may consider or take into consideration whether a
witness has been shown to be biased or have prejudice or hate or ill will toward
any party in the case or whether a witness has been shown to have testified falsely
or lied. You may take that into account to value or weigh the testimony of that
. . . . In other words, determining for yourself whether that witness is truthful or
should be believed. You may also consider whether a witness has been
contradicted and such contradiction if any there was would be considered by you
in determining the weight to give the testimony of that witness.
Now, mere contradiction alone would not authorize you to disregard the
testimony completely. But should you find that a witness has willfully and
intentionally testified falsely to a material fact then as to that witness you may
disregard his or her entire testimony if you see fit. You do not have to do so but
you may in your discretion do so. Now, once again the weight that you give these
things is in your discretion.
Third, Cathey cites the testimony of the expert witness regarding the
frequency with which the DNA profile obtained from Cathey and the blue hat
found at the scene of the crime occur in the population, in conjunction with the
Alabama Supreme Court’s decision in Ex Parte Perry, 586 So. 2d 242 (Ala. 1991).
(Doc. 13 at 9-11). In that case, the court noted that DNA population frequency
evidence “creates a potentially exaggerated impact on the trier of fact” by
“encourag[ing] the trier of fact in its determination of whether the State has proven
guilt beyond a reasonable doubt to focus solely upon a numerical conclusion and to
disregard the weight of other evidence.” Ex parte Perry, 586 So. 2d at 254
(internal quotation marks omitted). Here, as discussed, other evidence – namely,
the testimony of Wooley, Gerhardt, Brown, and Wade – also connected Cathey to
the crime. As a result, Cathey has not shown a reasonable probability the result of
his trial would have been different had his trial counsel discredited the expert
testimony regarding DNA evidence.
In addition to challenging the magistrate judge’s conclusion that he failed to
allege facts sufficient to show prejudice, Cathey contends the magistrate judge
overlooked his claim that his trial counsel failed to contest the reliability and
relevance of expert testimony regarding DNA. (Doc. 13 at 8). The magistrate
judge did not overlook this ineffective assistance claim. She addressed the claim
(Doc. 7-5 at 88-90).
on the prejudice prong of the Strickland inquiry and, consequently, found it
unnecessary to address the performance prong (i.e., whether the failure of Cathey’s
trial counsel to contest the reliability and relevance of the testimony in question
rose to the level of constitutionally deficient performance). See Ray v. Alabama
Dep’t of Corr., 809 F.3d 12012, 1208 (11th Cir. 2016) (“If a petitioner’s claim may
be resolved on the prejudice prong alone, then our precedents instruct that we do
so.”), cert. denied, 137 S.Ct. 417 (2016).
Having carefully reviewed and considered de novo all the materials in the
court file, including the magistrate judge’s report and recommendation and
Cathey’s objections thereto, the court is of the opinion that the magistrate judge’s
findings are due to be and are hereby ADOPTED and her recommendation is
ACCEPTED. Cathey’s objections are OVERRULED. Accordingly, the petition
for writ of habeas corpus is due to be DENIED and DISMISSED WITH
Further, because the petition does not present issues that are
debatable among jurists of reason, a certificate of appealability is also due to be
DENIED. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484-85
(2000); Rule 11(a), Rules Governing § 2254 Proceedings.
A separate Final Order will be entered.
DONE and ORDERED on January 11, 2019.
L. Scott Coogler
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?