Davis v. Norris, CORR AR
ORDER denying 50 Motion for Relief from Judgment Pursuant toFederal Rule 60(b)(6); denying 51 Motion to Stay of Execution; certificate of appealablity is granted; See order for further specifics. Signed by Honorable Susan O. Hickey on April 16, 2017. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
THIS IS A CAPITAL CASE
DON WILLIAM DAVIS
CASE NO. 5:01-cv-5188
WENDY KELLEY, Director,
Arkansas Department of Correction
Don William Davis is an inmate in the Arkansas Department of Correction under a
sentence of death for the 1990 murder of Jane Daniel. Mr. Davis’s execution is scheduled for
April 17, 2017. On April 12, 2017, Davis filed a Motion for Relief from Judgment Pursuant to
Federal Rule 60(b)(6) (Doc. 50) and Motion for Stay of Execution (Doc. 51). Following briefing
by the parties, this Court heard oral arguments. For the reasons set forth below, the Court finds
that both motions should be denied.
Davis was convicted of capital murder on March 6, 1992 and was sentenced by the jury to
death on March 9, 1992. The Arkansas Supreme Court affirmed Davis’s conviction and sentence
on October 4, 1993. See Davis v. State, 863 S.W.2d 259 (Ark. 1993). The United States
Supreme Court denied certiorari on April 4, 1994. Davis v. Arkansas, 511 U.S. 1026 (1994).
A petition for relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure was
filed on behalf of Davis on May 5, 1994. An amended petition was later filed and an evidentiary
hearing was held. The state circuit court denied relief on June 29, 1999. That decision was
affirmed by the Arkansas Supreme Court on May 31, 2001. Davis v. State, 44 S.W.3d 726 (Ark.
On April 1, 2002, Davis filed a Petition for Writ of Habeas Corpus in this Court. (Doc.
17). The petition was denied on January 28, 2004. (Doc. 29). The Eighth Circuit Court of
Appeals granted a certificate of appealability on two issues: (1) whether Davis’s right to due
process was violated under Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985) by the trial court’s
denial of funds for an independent mental health expert and (2) whether appellate counsel
ineffectively litigated the denial of expert funds on direct appeal. On September 14, 2005, the
Eighth Circuit denied relief on both issues. The Court also refused to grant a hearing pursuant to
Atkins v. Virginia, 536 U.S. 304 (2002). Davis v. Norris, 423 F.3d 868, 879 (8th Cir. 2005).
On February 27, 2017, the Governor of the State of Arkansas set Davis’s execution for
April 17, 2017.
Davis now seeks relief from his habeas judgment pursuant to Rule 60(b)(6) of the Federal
Rules of Civil Procedure. Davis also seeks a stay of execution due to the pending Rule 60(b)(6)
Rule 60(b)(6) Motion
Davis argues that relief should be granted under Rule 60(b)(6) and that the Court should
consider, pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct.
1911 (2013), certain claims the Court previously ruled had been procedurally defaulted.1
In Martinez v. Ryan, 132 S.Ct. 1309 (2012), the United States Supreme Court created a
“narrow exception” to the holding of Coleman v. Thompson, 501 U.S. 722 (1991) that ineffective
assistance of counsel in a state postconviction proceeding does not provide cause to excuse
procedural default. The exception was then expanded in Trevino v. Thaler, 133 S. Ct. 1911
(2013). Accordingly, under Martinez and Trevino, ineffectiveness of counsel in initial collateral
According to the motion, the procedurally defaulted claim at issue is Claim IV of Davis’s habeas
petition, which argued that trial counsel rendered ineffective assistance at the penalty phase in
violation of the Sixth Amendment by failing to present a witness to evaluate and explain the
school and institutional records introduced and failing to present other witnesses in mitigation.
Under 28 U.S.C. § 2244(b)(3)(A), a second or successive habeas petition should be
dismissed for failure to obtain authorization from the Court of Appeals. A Rule 60(b)(6) motion
will be considered a second or successive habeas corpus application if it contains a “claim.”
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). To determine whether a motion is a second or
successive habeas corpus application, “claim is defined as an ‘asserted federal basis for relief
from a state court’s judgment of conviction’ or as an attack on the ‘federal court’s previous
resolution of the claim on the merits.’” Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009)
(quoting Gonzalez, 545 U.S. at 530, 532). However, the motion does not attack a judgment “on
the merits” if it “merely asserts that a previous ruling which precluded a merits determination
was in error – for example, a denial for such reasons as . . . procedural default.” Gonzalez, 545
U.S. at 532, n. 4.
Here, as set forth above, Davis requests relief through a challenge to this Court’s
determination that certain claims were procedurally defaulted, relying on Martinez v. Ryan, 132
S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013). To the extent that Davis’s
motion concerns the exact claim set forth in Claim IV of his petition, which was found
procedurally barred by this Court, the restrictions applicable to second or successive petitions do
proceedings may, under certain circumstances, establish cause to excuse the procedural default of
an ineffective assistance of trial counsel claim. See also Sasser v. Hobbs, 735 F.3d 833, 853-54
(8th Cir. 2013).
Rule 60(b)(6) “permits a court to reopen a judgment for ‘any . . . reason that justifies
relief.’” Buck v. Davis, 137 S. Ct. 759, 777 (2017). However, to obtain relief from judgment
under Rule 60(b)(6), a movant must request relief “within a reasonable time” and must
demonstrate “‘extraordinary circumstances’ justifying the reopening of a final judgment.” Fed.
R. Civ. P. 60(c)(1). Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
The rule “vests wide
discretion in courts, but . . . only in ‘extraordinary circumstances.’” Buck, 137 S. Ct. at 777. The
court may consider a wide range of factors to determine whether extraordinary circumstances are
present, including “‘the risk of injustice to the parties’ and ‘the risk of undermining the public’s
confidence in the judicial process.’” Id. (quoting Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847, 863-64 (1988)). However, “[s]uch circumstances will rarely occur in the habeas
context.” Gonzalez, 545 U.S. at 535.
Many courts have addressed Rule 60(b)(6) with respect to Martinez and Trevino.2 Many
have noted that “[g]enerally, a change in the law that would have governed the dispute, had the
dispute not already been decided, is not by itself an extraordinary circumstance.” Kansas Pub.
Emps. Ret. Sys. v. Reimer & Koger Assocs., Inc., 194 F.3d 922, 925 (8th Cir. 1999). However,
The Eighth Circuit Court of Appeals has not directly addressed the applicability of
Martinez and Trevino to a Rule 60(b)(6) motion. However, many district courts in the Eighth
Circuit have addressed the issue. See McCullough v. Kelley, 2016 WL 1211279 (E.D. Ark.
2016); Rhines v. Young, 2016 WL 614665 (S.D. 2016); Boyle v. Kelley, 2015 WL 235205 (E.D.
Ark. 2015); Scott v. Hobbs, 2014 WL 3700581 (E.D. Ark. 2014); Hyatt v. Hobbs, 2014 WL
3729849 (W.D. Ark. 2014); Evans v. King, 2014 WL 5325375 (D. Minn. 2014); Reyes v. Hobbs,
2014 WL 1092451 (W.D. Ark. 2014); Vaughn v. Dormine, 2014 WL 1316242 (E.D. Mo. 2014);
DeJournett v. Luebbers, 2014 WL 81837 (E.D. Mo. 2014); Williams v. Steele, 2014 WL 1303680
(E.D. Mo. 2014); Ferguson v. Hobbs, 2013 WL 4431294 (E.D. Ark. 2013)(each denying the
Rule 60(b)(6) motion). But see, Barnett v. Roper, 941 F. Supp. 2d 1099 (E.D. Mo. 2013)(finding
extraordinary circumstances warranting relief under Rule 60(b)(6)).
the recent Supreme Court decision in Buck v. Davis, 137 S. Ct. 759, 777-78 (2017) appears to
clarify the fact that a Rule 60(b)(6) motion can be successful in the context of Martinez and
Trevino if there is a finding of “extraordinary circumstances.”
In accordance with caselaw and Rule 60(b)(6), this Court must examine two main issues
to determine if relief should be granted in the present case: (1) whether this relief was sought
“within a reasonable time” and (2) whether “extraordinary circumstances” support relief.
As previously established, habeas relief was denied by this Court in January of 2004. The
Eighth Circuit affirmed the Court’s decision in September of 2005. Martinez was decided by the
Supreme Court in 2012 and was expanded by the Court in Trevino in 2013.3 The instant motion
was not filed until Wednesday, April 12, 2017, just days before Davis’s scheduled execution date
of April 17, 2017. Davis’s counsel argues that the delay is justified because the applicable
caselaw was uncertain until the Supreme Court’s decision in Buck in February 2017. This Court
does not agree. While Buck may have clarified the potential for relief under Rule 60(b)(6), such
relief was being sought by other litigants immediately after the Martinez and Trevino decisions.4
The Court also finds it notable that Buck sought immediate review, filing a Rule 60(b)(6) motion
within two months of the Trevino decision. Buck, 137 S. Ct. at 771. Davis’s delay of almost
four (4) years5 is not reasonable and he has not provided the court with good reason for his delay.
It is also notably that the Eighth Circuit applied Martinez and Trevino to cases in
Arkansas under certain circumstances in Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013) and
Dansby v. Hobbs, 766 F.3d 809 (8th Cir. 2014).
See supra n. 2.
Just over five (5) years have passed since the decision of Martinez; almost four (4) years
have passed since the decision of Trevino; and, approximately three and a half (3.5) years have
passed since the Eighth Circuit applied Martinez in Sasser.
See Clark v. Davis, 850 F.3d 770, 782 (5th Cir. 2017) (finding Rule 60(b) motion filed almost
sixteen (16) months after Trevino untimely). See also Gonzalez, 545 U.S. at 537 (“The change in
the law . . . is all the less extraordinary in petitioner’s case, because of his lack of diligence in
pursuing review . . . .”). Davis was not diligent in his pursuit of relief and such diligence is
particularly important in the context of Rule 60(b) in order to protect the finality of judgments.6
The Court has also examined this case with respect to whether the requisite
“extraordinary circumstances” exist for relief pursuant to Rule 60(b). Having done so, the Court
finds that even without the unreasonable delay, Davis’s motion fails in this regard.
Davis argues, almost solely, that extraordinary circumstances exist because no court has
reviewed the ineffective assistance claim at issue. While the Court is certainly sympathetic to
that fact, the Court notes that this is the circumstance of every litigant seeking relief under Rule
60(b) due to Martinez and Trevino.
Also argued by Davis is the fact that the change in law under Martinez and Trevino so
altered the landscape of habeas procedure that it supports relief. As evidenced by Buck, a claim
under Martinez and Trevino is not, by itself, enough. There, the Court found relief but the
circumstances were, indeed, extraordinary. Buck suffered prejudice due to testimony from his
own expert that reflected the view that his race predisposed him to violent conduct. In Buck, the
Supreme Court noted the following “extraordinary circumstances”: (1) Buck was sentenced to
the death penalty; (2) Buck’s underlying ineffective assistance of counsel claim was race-based,
affecting “not just the defendant, but ‘the law as an institution, . . . the community at large, and
“This very strict interpretation of Rule 60(b) is essential if the finality of judgments is to
be preserved.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 873
(1988)(Rehnquist, C.J., dissenting).
. . . the democratic ideal reflected in the processes of our courts;’” Buck, 137 S. Ct. at 786 (citing
Rose v. Mitchell, 443 U.S. 545, 556 (1979)); and (3) the State of Texas’s refusal to admit error,
while admitting error in similar cases. Buck, 137 S. Ct. 759 (2017). Here, the alleged ineffective
assistance of counsel is not race-based and circumstances that would give rise to harm to the
community at large are not present.
Finally, Davis asserts and the Court acknowledges that this is a capital case, with the
death penalty looming. Davis argues that merits review is particularly important in a capital case.
Just as in Buck, that certainly carries weight when determining the circumstances present. The
Court agrees that merits review is important in such matters; however, the Court cannot find that
the death penalty outweighs the required analysis. Davis’s ineffective assistance of trial counsel
claim does not rise to the level of Buck and is not extraordinary. See also Lambrix v. Florida,
851 F.3d 1158 (11th Cir. 2017)(denying relief in a capital case post-Buck).
Because Davis did not seek the instant relief within a reasonable time and has not
presented extraordinary circumstances to warrant relief, the Court finds that his Motion for Relief
from Judgment Pursuant to Federal Rule 60(b)(6) (Doc. 50) should be and hereby is denied.
Motion for Stay of Execution
Davis has also requested that his execution be stayed pending the Court’s consideration of
his Rule 60(b)(6) motion. When considering a motion for stay of execution, “a district court
must consider not only the likelihood of success on the merits and the relative harms to the
parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim.”
Nelson v. Campbell, 541 U.S. 637, 649-50 (2004). Further, a stay of execution “is not available
as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its
criminal judgment without undue interference from the federal courts.” Hill v. McDonough, 547
U.S. 573, 584 (2006). Because the Court has found Davis’s motion for relief under Rule 60(b) to
be without merit, the Motion for Stay of Execution (Doc. 51) is also denied.
Certificate of Appealability
Finally, Davis requests that if relief is denied the Court grant him a certificate of
appealability. Upon consideration, the Court finds that reasonable jurists could disagree with the
Court’s conclusion with respect to certain issues. 28 U.S.C. § 2253(c)(2). The Court, therefore,
grants Petitioner Don William Davis a Certificate of Appealability with respect to the above
IT IS SO ORDERED, this 16th day of April, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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