Davis v. Kelley
ORDER approving and adopting 8 Proposed Findings Recommendations in their entirety as this Court's findings in all respects; denying with prejudice Mr. Davis's petition for habeas corpus; and declining to issue a certificate of appealability. Signed by Judge Kristine G. Baker on 11/8/2017. (cmn)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
Case No. 5:16-cv-00017-KGB
WENDY KELLEY, Director,
Arkansas Department of Correction
The Court has reviewed the Proposed Findings and Recommendations submitted by United
States Magistrate Judge Joe J. Volpe and the plaintiff Tyrone Davis’s objections (Dkt. Nos. 8, 9).
After carefully considering the objections and making a de novo review of the record in this case,
the Court concludes that the Proposed Findings Recommendations should be, and hereby are,
approved and adopted in their entirety as this Court’s findings in all respects.
The Court writes to address Mr. Davis’s objections to the Proposed Findings and
Recommendations (Dkt. No. 9).
Mr. Davis’s first objection is to the Court’s legal and factual
conclusion that his trial counsel’s failure to file a rape-shield motion was not ineffective assistance
Mr. Davis contends, had there been a request for a rape-shield hearing, that there
would have been a reasonable probability that he would have been acquitted and that he would
have received a fair trial.
He contends that there would have been more evidence to go to the
jury than solely his and the victim’s credibility because the jury would have heard evidence of
prior similar accusations by the victim, L.R., which did not result in criminal charges.
In Arkansas, “evidence of specific instances of the victim’s prior sexual conduct with the
defendant or any other person, evidence of a victim’s prior allegations of sexual conduct with the
defendant or any other person, which allegations the victim asserts to be true, or evidence offered
by the defendant concerning prior allegations of sexual conduct by the victim with the defendant
or any other person if the victim denies making the allegations is not admissible by the defendant,
either through direct examination of any defense witness or through cross-examination of the
victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any
other defense, or for any other purpose.” Ark. Code Ann. § 16-42-101(b).
As such, the statute
specifically precludes the admissibility of evidence of a victim’s prior allegation of sexual conduct
if the victim asserts that the allegation is true. State v. Kindall, 428 S.W.3d 486, 489 (Ark. 2013)
(determining that, when the victim asserts that prior allegations of sexual conduct are true, the
rape-shield statute precludes the admissibility of the evidence surrounding the allegations to attack
the victim’s credibility).
Here, Mr. Davis’s trial counsel testified that she believed L.R. would have testified that the
prior accusation was true.
Accordingly, evidence of the prior accusation would have been
inadmissible and cannot be the basis for an ineffective assistance of counsel claim under Arkansas
See, e.g., Small v. State, 264 S.W.3d 512, 517 (Ark. 2007) (“Counsel is not ineffective for
failing to make an argument that is meritless.”).
Moreover, failing to file a rape-shield motion,
which would have only proffered inadmissible evidence, could hardly result in the type of
prejudice to the petitioner required by Strickland v. Washington, 466 U.S. 688, 687 (1984).
Even if the court had admitted evidence of L.R.’s prior accusation, Mr. Davis fails to
establish how L.R.’s testimony, that she had previously been assaulted, would have resulted in
acquittal of Mr. Davis.
L.R. testified in detail regarding Mr. Davis’s conduct.
The fact that L.R.
previously reported an assault, which resulted in no criminal charges, does not establish that L.R.
lied about the prior assault, nor does it implicate L.R.’s credibility.
Therefore, the Court agrees
with the Proposed Findings and Recommendations that Mr. Davis has not shown that the Arkansas
court misapplied Strickland on this point.
Mr. Davis next objects to the legal and factual conclusion that his trial counsel’s
questioning of M.W. was not ineffective assistance of counsel.
Mr. Davis maintains that M.W.
should have been treated as a hostile witness and cross-examined by his trial counsel.
contends that his trial counsel should have pursued questions regarding M.W.’s alleged pattern of
attempts to entangle men in rape accusations, as well as her attempts to fuel L.D.’s accusations
against her uncle, to have her brother arrested for the rape of B.W., and to convince B.W. to
persuade Mr. Davis into having sex with her so that Mr. Davis would be arrested for statutory rape.
Mr. Davis further maintains that his trial counsel was aware of M.W.’s prior rape accusations and
failed to pursue that line of questioning, even though it would have damaged M.W.’s credibility
and strengthened Mr. Davis’s case.
Here, the state did not call M.W. as a witness; so Mr. Davis’s trial counsel’s only option
was to question M.W. directly.
Several times during M.W.’s testimony, opposing counsel
objected to Mr. Davis’s trial counsel’s attempts to lead M.W., and at a bench conference, the trial
judge denied Mr. Davis’s trial counsel’s request to treat M.W. as a hostile witness.
Findings and Recommendations determined that the circuit court’s finding that trial counsel was
not ineffective for her line of questioning of M.W. did not unreasonably apply Strickland.
Mr. Davis’s argument is not supported by the facts in the record.
for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as having produced
a just result.
Strickland, 466 U.S. at 686. Here, counsel attempted to treat M.W. as a hostile
witness and was prohibited from doing so by the judge.
Thus, counsel’s conduct is not the source
of any potential error.
Finally, Mr. Davis objects to the legal and factual conclusion that trial counsel’s failure to
subpoena B.W. was not ineffective assistance.
have cast doubt on the victim’s credibility.
Mr. Davis contends that B.W.’s testimony would
He contends that his trial counsel’s “uncertainty”
regarding the content of B.W.’s testimony is evidence that B.W.’s testimony would not have been
able to withstand scrutiny and, thus, would have favored Mr. Davis’s case.
Mr. Davis contends
that B.W.’s testimony was necessary to support his allegation that the victim was not credible.
Pursuant to Strickland, a strategic choice that falls within the range of reasonable
professional judgment is not ineffective assistance. Id. at 699.
Here, Mr. Davis’s trial counsel
testified that she interviewed B.W., that B.W. was adamant that she did not want to testify, and
that B.W. told Mr. Davis’s trial counsel that she had nothing to testify about and did not remember
any scheme to entrap Mr. Davis.
Mr. Davis presents no evidence that B.W. would have testified
otherwise or that his trial counsel failed to interview B.W.
Thus, the record evidence in this case
indicates that Mr. Davis’s trial counsel exercised her professional judgment after a reasonable
inquiry that included an interview with the purported witness, B.W.
The Court agrees with the
Proposed Findings and Recommendations that the Arkansas court did not unreasonably apply
Strickland in concluding that Mr. Davis’s allegation of ineffective assistance did not merit relief.
For the reasons explained in the Proposed Findings and Recommendations and in this
Order, the Court denies with prejudice Mr. Davis’s petition for habeas corpus relief. The Court
also declines to issue a certificate of appealability, as the Court determines that Mr. Davis has not
made a substantial showing that he was denied a constitutional right. See Rule 11 of the Rules
Governing Section 2254 Cases in the United States District Court; 28 U.S.C. § 2253(c)(1)-(2).
It is so ordered this the 8th day of November 2017.
Kristine G. Baker
United States District Judge
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