Davis v. Secretary, DOC et al

Filing 15

ORDER denying Petitioner Robert Earl Davis's 1 Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody is DENIED. The Clerk of the Court is ORDERED to terminate any pending motions, enter judgment, and close this case. Signed by Judge Sheri Polster Chappell on 3/23/2021. (LYB)

Case 2:18-cv-00260-SPC-MRM Document 15 Filed 03/24/21 Page 1 of 10 PageID 1699

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT EARL DAVIS,
Petitioner,
v.

Case No: 2:18-cv-260-SPC-MRM

SECRETARY, DOC,
Respondents.
/
OPINION AND ORDER1
Before the Court is Petitioner Robert Earl Davis’s Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1).
Background
The State of Florida charged Davis with shooting Jarvis Martin after a
fight in a nightclub. On September 14, 2006, a jury found Davis guilty of
attempted second degree murder and of shooting at, within, or into a dwelling
or building. (Doc. 8-2 at 52-53). The trial court sentenced Davis to a 25-year
prison term. (Doc. 8-2 at 94). The Second District Court of Appeal of Florida
(2nd DCA) affirmed.

(Doc. 8-3 at 468).

Davis filed four unsuccessful

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postconviction motions in state court. The Petition filed here mirrors his latest
state postconviction motion.
In the Petition, Davis claims that newly discovered eyewitness testimony
from a fellow inmate named Anthony Young exonerates him. He presented
this claim to the postconviction state court on June 29, 2015. (Doc. 8-5 at 262).
After holding a hearing, the postconviction court summarized the evidence as
follows:
5. At the hearing, Mr. Young testified that he had met Defendant
for the first time at Moore Haven prison. He explained that he was
the cousin of Robert Chapman, who was also present at the club,
and who had been part of an altercation which preceded the
shooting of victim Jarvis Martin. That altercation had been
between Robert Chapman and Grady Love, Defendant’s cousin and
co-defendant. Mr. Young testified at the hearing that Defendant
was not the shooter, and that the shooter was a Spanish man. He
also explained that he had allowed so much time to pass before
coming forward because he had been scared of retaliation, but now
did so because it was the right thing to do. When asked if he is
currently Defendant’s prison roommate, Mr. Young admitted that
he was, but explained that they had not been roommates at the
time that he wrote his affidavit and that the fact of their sharing
a room is not something either one of them can control. Mr. Young
also testified that the club had been dimly lit and that he is blind
in one eye, but despite these limitations, be had been able to see
the shooter and was positive that Defendant had not been that
person.
6. Defendant testified at the hearing that he had met Mr. Young
in prison, shortly after arrival in March of 2015. He explained that
they had met on the “rec yard,” where the inmates congregated by
hometown, and where they were introduced to each other based on
their both having lived in Fort Myers. Defendant stated that as
part of the general discussion, Mr. Young realized that Defendant
was the person who had been charged with the club shooting and

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volunteered the information that he, Mr. Young, had seen the
shooter. Defendant testified that he and his cousin, Grady Love,
had gone to the club together, and Defendant’s cousin had gotten
into an altercation with Mr. Young’s cousin, Robert Chapman,
before the shooting. He explained that due to the sheer number of
people in the club, many of whom he did not know, he had no way
of knowing about Mr. Young’s potential testimony until he spoke
with him in the prison yard at Moore Haven in 2015. He also
stated that he had asked Mr. Young why Mr. Young had not come
forward sooner, to which Mr. Young had only replied that he had
been scared.
7. However, on cross-examination, Defendant was asked about a
March 21, 20015 [sic] statement he had made to police, in which
he claimed that both he and the co-defendant had guns during the
incident. Defendant admitted at the evidentiary hearing that the
March 21, 20015 [sic] statement had been untruthful, but when
asked to explain why he had lied under oath, he had not been able
to give an answer. Defendant also admitted that a plea offer had
been negotiated, but that it did not go through because the State
had learned that Defendant’s statement had been false.
Defendant also stated that he had not testified at trial.
8. Hamid Hunter, the Assistant State Attorney who prosecuted
Defendant’s case, testified that a plea agreement had been signed
by the parties, but that the State had receded from the agreement
because the State had noticed elements in the Defendant’s
statement that were inconsistent with other evidence and the
testimony of other witnesses. Where the evidence and the other
witnesses tended to be consistent, Defendant’s statement tended
to be inconsistent with both. Consequently, the State no longer
believed Defendant.
(Doc. 8-6 at 64-65). The postconviction court weighed this evidence against the
following evidence from the record:
11. At trial, the record reflects that the defense did not mount a
defense of its own, but rather challenged the State’s case by crossexamining the State’s witnesses, attacking their credibility by
impeachment, and arguing to the jury that the victim and his

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family members were motivated to accuse Defendant of the crime
as a result of a family grudge they held against him for his having
beat up one of the victim’s younger cousins. Defense counsel also
pointed out to the jury that some of the State’s witnesses had prior
felony convictions, including the victim and his sister, and that
some of the prior felonies had been for crimes of dishonesty.
12. Trial testimony established that the club had been dimly lit;
that two people, who the State’s witnesses identified as Defendant
and his co-defendant, ran out of the club only to return with guns;
and that Defendant shot the victim in the chest. Trial testimony
also revealed that there was a fight was [sic] between Mr.
Chapman and the co-defendant just before the shooting, and was
arguably the cause of the shooting. The witnesses testified that
the club was crowded, with approximately 500 to 600 people
present. Most of the witnesses said that although the lighting had
been dim, they had been able to distinguish the features of other
people across the dance floor, although some stated that it had
been too dark for them to do so. One of those who testified that it
had been too dark to see across the dance floor did, however, state
that if the lighting and angles had been right, people would have
been able to distinguish the features of others. Only the victim
claimed that the club had turned on the lights after the fight that
had served as the catalyst for the shooting. However, given that
the crime scene technician had testified at the trial that the club
remained dimly lit even with the club lights on a full power, this
statement from the victim does not appear to be as contradictory
as it would otherwise seem to have been.
13. As mentioned above, there was trial testimony that Defendant
had a gun. Specifically, many witnesses testified that it had been
silver.
14. Concerning these witnesses, and those who identified
Defendant as having run into the club with a gun or having shot
the victim, trial testimony reflects that trial counsel brought out
on cross-examination, as it pertained to each witness, their close
relationships to the victim, their prior prison record as a
suggestion of their lack of credibility, questioned their motives for
having delayed as long as they had before going to the police, or
impeached them with contradictory inconsistent statements.

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15. The most notable of these for our purposes was the crossexamination of the bouncer who positively identified Defendant
and co-defendant in open court at trial as the two people he had
seen running past him from outside the club and back inside with
guns, but who had told the police in a prior statement that one of
the two men was a tall Hispanic man, who was definitely not black.
As both Defendant and his co-defendant are black males, the
witness was questioned whether and how he could identify
Defendant as the taller of those two men. His answer was simply
to re-identify Defendant as the person he had seen, despite the
earlier description he had given. This is notable, because at the
evidentiary hearing, postconviction counsel argues that Mr.
Young’s testimony supported this testimony of a tall Hispanic
shooter.
(Doc. 8-6 at 65-67) (citations omitted).

The postconviction court

considered the credibility of West and Young and weighed their
testimony against the trial evidence.

It found “that Mr. Young’s

testimony does not weaken the case against the defendant so as to give
rise to a reasonable doubt as to Defendant’s culpability” and denied
West’s motion. (Doc. 8-6 at 67-68). West appealed, and the 2nd DCA
affirmed without a written opinion. (Doc. 8-6 at 237).
Davis’s Petition followed. Respondent concedes Davis timely filed
the Petition and exhausted all state law remedies.
Applicable Habeas Law
The Antiterrorism Effective Death Penalty Act (AEDPA) governs a state
prisoner’s petition for habeas corpus relief. 28 U.S.C. § 2254. Relief may only

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be granted on a claim adjudicated on the merits in state court if the
adjudication:
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet.
White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court’s violation of state
law is not enough to show that a petitioner is in custody in violation of the
“Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);
Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing legal
principles set forth in the decisions of the United States Supreme Court when
the state court issued its decision. White, 134 S. Ct. at 1702; Casey v. Musladin,
549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
Habeas relief is appropriate only if the state court decision was “contrary to, or
an unreasonable application of,” that federal law. 28 U.S.C. § 2254(d)(1). A
decision is “contrary to” clearly established federal law if the state court either:
(1) applied a rule that contradicts the governing law set forth by Supreme
Court case law; or (2) reached a different result from the Supreme Court when

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faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144,
1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application” of Supreme
Court precedent it the state court correctly identifies the governing legal
principle, but applies it to the facts of the petitioner’s case in an objectively
unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court either
unreasonably extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Bottoson, 234 F.3d at 531
(quoting Williams, 529 U.S. at 406). “A state court’s determination that a claim
lacks merit precludes federal habeas relief so long as fair-minded jurists could
disagree on the correctness of the state court’s decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011). “[T]his standard is difficult to meet because it was
meant to be.” Sexton v. Beaudreaux, 138 S. Ct. 2555, 2558 (2018).
Finally, when reviewing a claim under 28 U.S.C. § 2254(d), a federal
court must remember that any “determination of a factual issue made by a
State court shall be presumed to be correct[,]” and the petitioner bears “the
burden of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A]
state-court factual determination is not unreasonable merely because the

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federal habeas court would have reached a different conclusion in the first
instance.”).
Analysis
To start, Davis’s claim that Young’s testimony exonerates him is not
itself a proper ground for federal habeas relief. “Claims of actual innocence
based on newly discovered evidence have never been held to state a ground for
federal habeas relief absent an independent constitutional violation occurring
in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390,
400 (1993).

This is so because “federal habeas courts sit to ensure that

individuals are not imprisoned in violation of the Constitution-not to correct
errors of fact.”

Id.

It is not this Court’s “role to make an independent

determination of a petitioner’s guilt or innocence based on evidence that has
emerged since the trial.” Raulerson v. Warden, 928 F.3d 987, 1004 (11th Cir.
2019) (quoting Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir. 2002)).
Davis claims the state court “overlooked the new evidence” that he can
now use to “refute the testimony of the original state witnesses.” (Doc. 1 at 7).
That is demonstrably untrue. The postconviction court heard and evaluated
Young’s testimony, weighed it against the evidence presented at trial, and
determined that it did not create a reasonable doubt as to Davis’s guilt. Davis
does not identify any constitutional errors in the postconviction court’s denial
of his claim, and this Court finds none.

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Davis also uses Young’s testimony as a springboard to a Giglio claim. A
Giglio error occurs when “undisclosed evidence demonstrates that the
prosecution’s case included perjured testimony and that the prosecution knew,
or should have known, of the perjury.” Ventura v. Attorney Gen., Fla., 419 F.3d
1269, 1276-77 (11th Cir. 2005) (quoting United States v. Agurs, 427 U.S. 97,
103 (1976)). “In order to prevail on a Giglio claim, a petitioner must establish
that the prosecutor knowingly used perjured testimony, or failed to correct
what he subsequently learned was false testimony, and that the falsehood was
material.” Id. at 1277 (quoting Tompkins v. Moore, 193 F.3d 1327, 1339 (11th
Cir. 1999)).
Davis fails to show Giglio error. He does not identify any perjured
testimony from trial. Instead, he makes the conclusory claim that prosecution
witnesses “conspired to accuse, convict, and otherwise imprison” him—a
rehash of his argument at trial. (Doc. 1 at 7). But Young’s testimony, while
inconsistent with trial testimony identifying Davis as the shooter, does not
prove the prosecution used perjured testimony at trial. And it certainly does
not prove that the prosecutor was aware of any false testimony. Davis has not
shown entitlement to habeas relief.
DENIAL OF CERTIFICATE OF APPEALABILITY
A prisoner seeking a writ of habeas corpus has no absolute entitlement
to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather,

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a district court must first issue a certificate of appealability (COA). “A [COA]
may issue…only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, a
petitioner must demonstrate that “reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong,” Tennard
v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller–El v. Cockrell, 537 U.S. 322, 335–
36 (2003) (citations omitted). Davis has not made the requisite showing here
and may not have a certificate of appealability on any ground of his Petition.
Accordingly, it is now
ORDERED:
Petitioner Robert Earl Davis’s Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody (Doc. 1) is DENIED. The Clerk
of the Court is ORDERED to terminate any pending motions, enter judgment,
and close this case.
DONE and ORDERED in Fort Myers, Florida on March 23, 2021.

SA: FTMP-1
Copies: All Parties of Record

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