Davis v. Hobbs
ORDER ADOPTING REPORT AND RECOMMENDATIONS 10 , as supplemented. 2 Petition for Writ of Habeas Corpus filed by Timothy Davis is dismissed with prejudice. Signed by Judge D. P. Marshall Jr. on 4/17/13. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ADC # 133384
RAY HOBBS, Director,
Arkansas Department of Correction
The Court has considered Magistrate Judge Joe J. Volpe's proposed
findings and recommendations, NQ 10, and Davis's objections, NQ 13. On de
novo review, the Court adopts Judge Volpe's proposal as supplemented.
R. Crv. P. 72(b)(3). The recent affidavit from Alundra Smith, NQ 13 at 20-22,
which Davis offers with his objections as new and reliable evidence of his
actual innocence, deserves a word. Smith is Davis's long-time family friend;
she was in the car during and after the shooting; and she testified at trial. 365
Ark. 634, 636-37,232 S.W.3d 476,480-81 (2006). Parts of the affidavit echo her
trial testimony. The new information is that she says she was threatened by
interrogating officers with murder charges to implicate Davis and that Davis
never put his gun to her head while driving from the murder scene. This last
is the opposite of her trial testimony.
The new affidavit does not suffice to avoid the procedural bar on
innocence grounds. First, it goes to legal innocence, not actual innocence.
Narcisse, v. Dahm, 9 F.3d 38,39-40 (8th Cir. 1993). Second, the issue is whether
a reasonable jury confronted with all the evidence old and new would have
acquitted Davis. Schlup v. Delo, 513 U.S. 298, 329 (1995). Whether Davis put
the gun to Smith's head, or just banged it on her seat back, during the
getaway, the evidence that Davis shot the victim was overwhelming. And the
waffling testimony from Smith could have cut either way, depending on
which version the jury believed, and thus is not outcome determinative.
Davis's petition for writ of habeas corpus, N2 2, is dismissed with
prejudice. A certificate of appealability will not issue because Davis's petition
is time-barred and procedurally defaulted. Khaimov v. Crist, 297F.3d 783,786
(8th Cir. 2002).
D.P. Marshall Jr.
United States District Judge
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