Davis v. United States of America

Filing 4

ORDER by Judge D. Lowell Jensen Granting 3 Motion for Certificate of Appealability. (jg, COURT STAFF) (Filed on 8/1/2012)

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UNITED STATES OF AMERICA

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Plaintiff-Appellee, )
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v.
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KEVIN LEE DAVIS,
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Defendant-Appellant.)
______________________________)

*E-FILED - 8/1/12*

No.

C-05-03756-DLJ
CR-98-40082-DLJ
(Appeal No. 12-16575)
ORDER

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Kevin Davis (Davis) was the leader of a large-scale

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cocaine trafficking organization that operated in Oakland in
1997 and 1998.

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For the Northern District of California

United States District Court

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co-defendants, Lionel McCoy went to trial.

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Sandy Medina, a former co-defendant who had already plead

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guilty, was called as a witness.

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Amendment privilege and refused to testify.

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unavailability as a witness, her statement was redacted to

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eliminate her observations of the criminal conduct of others,

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and the remaining portion, in which she confessed to her own

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criminal conduct, was read to the jury.

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In January 2001 Kevin Davis and one of his
During the trial,

She asserted her Fifth
Given her

The jury found Davis guilty of 79 of the counts charged

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against him. Davis appealed his convictions.

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among other issues, Davis alleged that the admission of

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Medina’s statement was in error.

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prejudicial error and in January 2004 the Ninth Circuit

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affirmed the convictions in United States v. McCoy, 90 Fed.

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Appx 201 (9th Cir. 2004).

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In his appeal,

The Ninth Circuit found no

Davis next filed a motion to vacate, set aside, or correct

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the sentence pursuant to 28 U.S.C. § 2255. Davis again

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challenged the admission of Medina’s statements as a

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Confrontation Clause violation. This Court denied Davis’s

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motion and Davis appealed.

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The Supreme Court’s decision in Crawford v. Washington,

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541 U.S. 36 (2004) was issued after Davis’s trial and the McCoy

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decision had been filed, but before his conviction had become

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final.

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2011 held that Crawford applied to Davis’ case.

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United States conceded on appeal that the admission of Medina’s

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statement violated Davis’ Confrontation Clause rights under

The Ninth Circuit’s latest ruling dated January 14,
Because the

Crawford, the Ninth Circuit remanded the matter to this Court

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For the Northern District of California

United States District Court

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to determine if the error was prejudicial. United States v.

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Davis, 408 Fed. Appx. 124 (9th Cir. 2011).

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On May 21, 2012 this court issued an order finding that

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there was no prejudicial error in the admission of Medina’s

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statement.

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of that order with the Ninth Circuit.

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Ninth Circuit issued an order staying the briefing in the

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appeal pending this Court issuing a Certificate of

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Appealability.

On or about July 8, 2012 defendant filed an appeal
On July 18, 2012 that

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Defendant has raised a constitutional issue as to whether

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admission of the Medina statement was prejudicial error and is

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thus appealable and a certificate of appealability should

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issue.

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Cir. 1997).

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See United States v. Asrar, 116 F.3d 1268, 1270 (9th

IT IS SO ORDERED.
Dated: July 31, 2012

_________________________
D. Lowell Jensen
United States District Judge

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Copy of Order E-Filed to Counsel of Record:

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For the Northern District of California

United States District Court

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