Davis v. Secretary, Department of Corrections et al
Filing
27
OPINION AND ORDER: Davis's petition for the writ of habeas corpus 1 is DENIED. The Clerk is directed to enter judgment against Davis and CLOSE this case. A certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Davis must obtain permission from the circuit court to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 11/29/2022. (JDE)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHAEL DAVIS
Petitioner,
v.
Case No. 8:16-cv-2793-CEH-MRM
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
/
ORDER
This cause comes before the Court on Michael Davis’s petition for the writ of
habeas corpus under 28 U.S.C. § 2254. (Doc. 1) Davis challenges his state convictions
for sexual battery on a person less than twelve years of age and sexual activity with a
child. Upon consideration of the petition (Doc. 1), the response (Doc. 8), the reply
(Doc. 11), the supplemental response (Doc. 18), and the reply (Doc. 20), and in
accordance with the Rules Governing Section 2254 Cases in the United States District Courts,
the petition will be DENIED.
Procedural background
Davis was charged with one count of sexual battery on a person less than 12
years of age and one count of sexual activity with a child. (Doc. 19-1, Ex. 3) During
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a pretrial Williams Rule1 hearing, the trial judge determined that testimony from the
victim’s older brother, C.D., about an earlier unrelated sexual battery committed by
Davis on C.D. was admissible under state law because it was sufficiently similar to the
charged offenses.2 (Doc. 19-3, Ex. 46 at 201–02) C.D. testified at trial as a Williams
Rule witness about the sexual act Davis perpetrated against him.
A jury convicted Davis of both charges and he was sentenced to life
imprisonment on Count I and to a concurrent term of thirty years imprisonment on
Count II. The state appellate court affirmed Davis’s convictions and sentences and
affirmed the denial of his state Rule 3.850 motion for post-conviction relief. (Doc.
19-1, Exs. 16, 36) The state appellate court also denied each of Davis’s state habeas
petitions alleging the ineffective assistance of appellate counsel. (Doc. 19-3, Exs. 40,
43)
Standard of Review
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir.
1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly
The Williams Rule is based on the holding in Williams v. State, 110 So.2d 654 (Fla. 1959). See also §
90.404(2)(a), Fla. Stat.
2
C.D. testified at the Williams Rule hearing that when he was eleven or twelve years old, he and Davis
were in the garage at their home. Davis told C.D. “that there should be nothing between us so we
should take all of our clothes off, and so we did that. And then after we talked for, you know 10-15
minutes he proceeded to put his mouth on my penis.” (Doc. 19-3, Ex. 46 at 176) The victim, D.D.
(C.D.’s younger brother), testified at trial that when he was nine or ten years old, Davis began putting
his mouth on D.D.’s penis and that the molestation continued from when D.D. was nine years old
until he was twelve years old. (Doc. 19-4, Ex. 49 at 237, 264)
1
2
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deferential standard for federal court review of a state court adjudication, states in
pertinent part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim —
(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.
In Williams v. Taylor, 529 U.S. 362, 412–13 (2000), the Supreme Court
interpreted this deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power
of a federal habeas court to grant a state prisoner’s
application for a writ of habeas corpus with respect to
claims adjudicated on the merits in state court. Under
§ 2254(d)(1), the writ may issue only if one of the following
two conditions is satisfied - - the state-court adjudication
resulted in a decision that (1) “was contrary to . . . clearly
established Federal Law, as determined by the Supreme
Court of the United States” or (2) “involved an
unreasonable application of . . . clearly established Federal
law, as determined by the Supreme Court of the United
States.” Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case differently
than this Court has on a set of materially indistinguishable
facts. Under the “unreasonable application” clause, a
federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this
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Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case.
“The focus . . . is on whether the state court’s application of clearly established
federal law is objectively unreasonable, . . . an unreasonable application is different
from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S.
86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the
objective reasonableness, not the correctness per se, of the state court decision that we
are to decide.”). The phrase “clearly established Federal law” encompasses only the
holdings of the United States Supreme Court “as of the time of the relevant state-court
decision.” Williams, 529 U.S. at 412.
The purpose of federal review is not to re-try the state case. “The [AEDPA]
modified a federal habeas court’s role in reviewing state prisoner applications in order
to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given
effect to the extent possible under law.” Cone, 535 U.S. at 693. A federal court must
afford due deference to a state court’s decision. “AEDPA prevents defendants—and
federal courts—from using federal habeas corpus review as a vehicle to second-guess
the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779 (2010). See
also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult to meet,’ . . . and
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‘highly deferential standard for evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt’ . . . .”) (citations omitted).
In a per curiam decision without a written opinion the state appellate court
affirmed Davis’s convictions and sentences. (Doc. 19-1, Ex. 16) The state appellate
court’s affirmance warrants deference under Section 2254(d)(1) because “the summary
nature of a state court’s decision does not lessen the deference that it is due.” Wright v.
Moore, 278 F.3d 1245, 1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245
(2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562
U.S. at 99 (“When a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the claim
on the merits in the absence of any indication or state-law procedural principles to the
contrary.”).
Review of the state court decision is limited to the record that was before the
state court.
We now hold that review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated
the claim on the merits. Section 2254(d)(1) refers, in the past
tense, to a state-court adjudication that “resulted in” a
decision that was contrary to, or “involved” an
unreasonable application of, established law. This
backward-looking language requires an examination of the
state-court decision at the time it was made. It follows that
the record under review is limited to the record in existence
at that same time, i.e., the record before the state court.
Pinholster, 563 U.S. at 181–82. Davis bears the burden of overcoming by clear and
convincing evidence a state court factual determination. “[A] determination of a
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factual issue made by a State court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a
finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244
F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).
Standard for Ineffective Assistance of Counsel
Davis claims ineffective assistance of counsel, a difficult claim to sustain. “[T]he
cases in which habeas petitioners can properly prevail on the ground of ineffective
assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511
(11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)).
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that Strickland v.
Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), the Supreme Court set forth a two-part test for
analyzing ineffective assistance of counsel claims.
According to Strickland, [f]irst, the defendant must show
that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Strickland, 466 U.S. at 687, 104 S.
Ct. 2052.
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Strickland requires proof of both deficient performance and consequent prejudice.
Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant makes
an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When applying Strickland,
we are free to dispose of ineffectiveness claims on either of its two grounds.”).
“[C]ounsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Strickland,
466 U.S. at 690. “[A] court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” 466 U.S. at 690. Strickland requires that
“in light of all the circumstances, the identified acts or omissions were outside the wide
range of professionally competent assistance.” 466 U.S. at 690.
Davis must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” 466 U.S. at 691. To meet this burden, Davis must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
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extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690–91. Davis cannot meet his burden merely by showing
that the avenue chosen by counsel proved unsuccessful.
The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers
would have done. We ask only whether some reasonable
lawyer at the trial could have acted, in the circumstances, as
defense counsel acted at trial . . . . We are not interested in
grading lawyers’ performances; we are interested in whether
the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,
in every case, could have done something more or something different. So, omissions
are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or appropriate,
but only what is constitutionally compelled.’”) (en banc) (quoting Burger v. Kemp, 483
U.S. 776, 794 (1987)).
Under 28 U.S.C. § 2254(d) Davis must prove that the state court’s decision was
“(1) . . . contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States or (2) . . . based
on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” Sustaining a claim of ineffective assistance of counsel is very
difficult because “[t]he standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter, 562
U.S. at 106. See also Pinholster, 563 U.S. at 202 (a petitioner must overcome this
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“‘doubly deferential’ standard of Strickland and [the] AEDPA”), Johnson v. Sec’y, Dep’t
of Corr., 643 F.3d 907, 911 (11th Cir. 2011) (“Double deference is doubly difficult for
a petitioner to overcome, and it will be a rare case in which an ineffective assistance of
counsel claim that was denied on the merits in state court is found to merit relief in a
federal habeas proceeding.”), and Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270
(11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel claim—which is
governed by the deferential Strickland test—through the lens of AEDPA deference, the
resulting standard of review is ‘doubly deferential.’”), cert. denied, 134 S. Ct. 191 (2013).
Ground One
Davis contends that his trial counsel rendered ineffective assistance by not
investigating and presenting to the trial court (1) investigative reports from the
Department of Children and Families (“DCF”) and (2) a recorded interview C.D. gave
to the Child Protection Team (“CPT”). Davis argues that both the DCF reports and
the CPT interview would have shown C.D.’s lack of credibility, which would have
caused the trial court to exclude him as a Williams Rule witness. The Respondent
argues that Ground One is procedurally barred from federal review. (Doc. 8 at 14–15;
Doc. 18 at 3–5)3 Davis argues entitlement to a merits review of his claim of ineffective
assistance of trial counsel under Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v.
Thaler, 569 U.S. 413 (2013). (Doc. 11 at 2; Doc. 20 at 2)
Claim 1 - DCF reports
3
The page numbers of the exhibits cited in this Order are those assigned by CM/ECF.
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Davis alleges that his trial counsel rendered ineffective assistance by not
presenting to the trial court the DCF reports that contained information about previous
allegations of molestation made by C.D. against Davis that were determined to be
unfounded. He further argues that “[a] reasonable probability exists that, had counsel
investigated the DCF reports which contained the chronological notes report and
identified the DCF investigator and had presented these available documents in a
[second] subsequent Williams Rule hearing, the court would have been compelled to
rescind its prior ruling, declare C.D. to be unreliable due to prior false allegations, and
rule[d] C.D.’s testimony inadmissible.” (Doc. 1 at 19) The Respondent correctly
argues that, although Davis raised this claim in state court in his Rule 3.850 motion,
he did not appeal the denial of the claim, rendering the claim unexhausted. (Doc. 8 at
14–15)
“If the petitioner has failed to exhaust state remedies that are no longer
available, that failure is a procedural default which will bar federal habeas relief, unless
either the cause and prejudice or the fundamental miscarriage of justice exception is
established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause
for a procedural default, a petitioner “must demonstrate that some objective factor
external to the defense impeded the effort to raise the claim properly in state court.”
Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To show prejudice, a petitioner
must demonstrate not only that an error at the trial created the possibility of prejudice,
but that the error worked to his actual and substantial disadvantage and infected the
entire trial with “error of constitutional dimensions.” United States v. Frady, 456 U.S.
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152, 170 (1982).
In other words, a petitioner must show at least a reasonable
probability of a different outcome. Henderson, 353 F.3d at 892.
Absent a showing of cause and prejudice, a petitioner may obtain federal habeas
review of a procedurally defaulted claim only if review is necessary to correct a
“fundamental miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Murray v. Carrier, 477 U.S. 478, 495–96 (1986). A fundamental miscarriage of justice
occurs if a constitutional violation has probably resulted in the conviction of someone
who is “actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995); Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet the “fundamental miscarriage
of justice” exception, a petitioner must show constitutional error coupled with “new
reliable evidence—whether . . . exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513
U.S. at 324.
Martinez recognizes a narrow exception to the exhaustion requirement
announced in Coleman v. Thompson, 501 U.S. 722 (1991), for a claim of ineffective
assistance of trial counsel. Martinez holds that, “[w]here, under state law, claims of
ineffective assistance of trial counsel must be raised in an initial review collateral
proceeding, a procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the initial review collateral
proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566
U.S. at 17. Trevino expanded Martinez’s exception to states that effectively prohibit
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defendants from raising ineffective assistance of counsel claims on direct appeal. 569
U.S. at 429.
Davis’s failure to challenge on appeal the denial of this claim of ineffective
assistance of counsel results in abandonment, rendering the ground unexhausted. Fla.
R. App. P. 9.141(b)(3)(C); see Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979)4
(stating that exhaustion of a claim raised in a Rule 3.850 motion includes an appeal
from the denial of the motion). Davis cannot return to state court to file an untimely
collateral appeal challenging the denial of this ground. Fla. R. Crim. P. 3.850(k).
Consequently, claim 1 is procedurally defaulted.
To the extent that Davis relies on Martinez to overcome the default of this claim,
he cannot prevail. Martinez expressly excludes error arising from appeal in initialreview collateral proceedings from its holding:
The holding in this case does not concern attorney errors in
other kinds of proceedings, including appeals from
initial-review collateral proceedings, second or successive
collateral proceedings, and petitions for discretionary
review in a State’s appellate courts. See 501 U.S., at 754, 111
S. Ct. 2546; Carrier, 477 U.S., at 488, 106 S. Ct. 2639. It does
not extend to attorney errors in any proceeding beyond the
first occasion the State allows a prisoner to raise a claim of
ineffective assistance at trial, even though that initial-review
collateral proceeding may be deficient for other reasons.
Martinez, 566 U.S. at 16. Davis otherwise fails to satisfy the cause and prejudice
exception to excuse the default. He cannot meet the “fundamental miscarriage of
Unless later superseded by Eleventh Circuit precedent, a Fifth circuit decision issued before October
1, 1981, binds this Court. Bonner v. City of Prichard, 661 F.2d 206, 1207 (11th Cir. 1981) (en banc).
4
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justice” exception because he presents no “new reliable evidence” that he is actually
innocent. Schlup, 513 U.S. at 327. Because Davis satisfies neither exception to
procedural default, claim 1 is procedurally barred from federal review.
Claim 2: CPT interview
Davis alleges that his trial counsel rendered ineffective assistance by not
investigating and obtaining a copy of the CPT interview. Davis argues that in a
separate unrelated case alleging that C.D. had been molested by his great uncle,5 C.D.
stated in a recorded interview that Davis “had gotten naked with him in the garage but
denied that Mr. Davis performed oral sex on him or requested that anal sex be
performed on him.” (Doc. 1 at 9) The gravamen of Davis’s claim is that his trial
counsel knew before the trial that the recording existed and should have obtained a
copy of it in order to move for reconsideration of the trial court’s ruling on the
admissibility of C.D.’s testimony under the Williams Rule. (Doc. 19-6, Ex. 56 at 53–
54)
Davis argued in his Rule 3.850 motion that his trial counsel rendered ineffective
assistance by not investigating and presenting the DCF reports but did not challenge
counsel’s failure to obtain the CPT interview. The state post-conviction court granted
Davis an evidentiary hearing on certain grounds of his Rule 3.850 and appointed him
post-conviction counsel. At the start of the evidentiary hearing the State argued that
the claim of ineffective assistance of counsel as to the CPT interview was not included
5
The great uncle was tried and convicted in a separate case. (Doc. 19-5, Ex. 50 at 138, 142)
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in the Rule 3.850 motion and, therefore, was untimely and procedurally barred.
(Doc. 19-6, Ex. 56 at 44–47) Post-conviction counsel argued that the post-conviction
motion asserted trial counsel’s alleged failure to investigate and present additional
evidence regarding the Williams Rule witness (C.D.) and that this generalized
allegation included investigating not only the DCF reports but should have been
interpreted to include the CPT interview. (Id. at 51–54, 66–72) The post-conviction
judge concluded the CPT interview would be excluded because “[i]t is outside of the
grounds for relief . . . that were alleged by the Defendant as far as Ground Number 1
is concerned.” (Doc. 19-6, Ex. 56 at 77) The judge denied Davis’s subsequent motion
for reconsideration and denied his motion to amend the Rule 3.850 motion as
untimely. (Doc. 19-6, Ex. 57 at 87–88) Accordingly, because Davis has not properly
presented this claim to the state court, the claim of ineffective assistance of counsel is
unexhausted. Davis cannot return to state court to raise the unexhausted claim in an
untimely post-conviction motion. See Fla. R. Crim. P. 3.850(b). Consequently, the
exhaustion requirement remains unsatisfied, rendering the claim procedurally
defaulted. Davis argues entitlement to a merits review under Martinez.
Davis fails to show that his claim is “substantial.” During the Williams Rule
hearing the judge concluded (Doc. 19-3, Ex. 46 at 201–03):
I think that the cases are sufficiently similar to be admissible
under Williams Rule but I am a little bit concerned if -- I
haven’t heard any evidence to support this at this point,
though. It’s just been based on [counsel]’s argument about
it. But the only evidence I’ve heard, although there was a
little bit of confusion about it and it’s one of the reasons I
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went back and asked him some questions myself to try to
clarify what he was really saying.
If, for example, he -- I didn’t hear any evidence from any
police officer or anybody else that he never told them about
the defendant putting his mouth on his penis to the police.
He says he did report that to them and to DCF and he gave
a written statement when he was interviewed at the police
station in the presence of a police officer and the DCF
investigator and did acknowledge that.
So, based on what he’s testified here today, I would
consider that to be admissible as Williams Rule evidence,
similar fact evidence under the relaxed standards of the
applicable statute and the Evidence Code here because it
involves a child sexual molestation type of situation here.
But, you know, if there is some question about whether that
really ever happened, I mean, obviously that goes to the
probative nature of it and the credibility of that witness.
And if it gets to the point where his credibility is so lacking
that its probative value is diminished to that extent as
compared with its prejudicial impact, I might have to
reconsider it then. But from what I’ve heard today I would
have to grant the State’s request and allow it to be admitted
into evidence.
....
I haven’t heard any evidence to the contrary yet.
[COUNSEL]: Okay. And this is just a position that the
Defense would be taking is that in light of your ruling today
as the trial approaches if there is -THE COURT: Now, I guess you can file a Motion in
Limine -[COUNSEL]: Right.
THE COURT: -- and put on evidence to support it.
[COUNSEL]: Okay.
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THE COURT: You know, and if it’s supported by some
other evidence then I would have to reconsider this. But
right now I’d have to rule in favor of the State. I think that
would be the only way to deal with it. Now, if the Defense
wants to, you know, make some affirmative effort to try to
keep it out then I will consider it. But right now I think I’d
have to allow it.
After the Williams Rule hearing, a different judge was assigned to the case for
trial.
Counsel did not move for reconsideration of the admissibility of C.D.’s
testimony or otherwise move to present the contents of the CPT interview to the state
court before the trial.
Even assuming that counsel performed deficiently by not moving for
reconsideration, Davis does not establish prejudice.
The victim’s testimony of
repeated molestation by Davis over an approximately two-year period was largely
unchallenged. (Doc. 19-4, Ex. 49 at 236–68) In addition, the State presented at trial
Davis’s statement to the police in which he admitted to drinking heavily and that it
was possible that the molestation could have occurred while he was under the
influence of alcohol. (Doc. 19-5, Ex. 50 at 98–110) Consequently, even if trial counsel
had performed as Davis suggests she should have, he fails to show that the outcome
of the trial would have been different. Because Davis does not establish that his claim
of ineffective assistance of trial counsel has “some merit,” he cannot establish that the
claim is “substantial” under Martinez to satisfy the cause and prejudice exception to
procedural default. See Clark, 988 F.3d at 1331. He cannot meet the “fundamental
miscarriage of justice” exception because he presents no “new reliable evidence” that
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he is actually innocent. Schlup, 513 U.S. at 327. Because Davis satisfies neither
exception to procedural default, this claim of ineffective assistance of counsel is
procedurally barred from federal review.
Ground Two
Davis contends that his trial counsel rendered ineffective assistance by (1) not
requesting a special jury instruction on collateral crime evidence before C.D. testified
at trial, (2) not requesting that that instruction be included in the final jury instructions,
and (3) not objecting to the trial court’s failure to give the instruction. Davis argues
that “counsel was constitutionally ineffective for not demanding that the instruction
be given at the close of the evidence where it [is] a final jury instruction.” (Doc. 1 at
38) He further argues that “[t]o not give this instruction denied Petitioner fundamental
fairness of a fair trial” and “[f]or counsel to not even request that the court instruct the
jury Petitioner was not on trial for the allegations made by the Williams Rule witness
was grossly negligent and constitutionally ineffective.” (Id.) Davis argues that if
“[t]rial counsel had requested the instruction and/or the instruction been given at the
close of the evidence there is a reasonable probability the outcome would have been
different where the testimony of the similar crime witness was used to corroborate the
victim in this case.” (Doc. 1 at 41) The Respondent argues that this ground is
procedurally barred. Davis admits that he did not exhaust this ground in state court
but asserts entitlement to a merits review under Martinez.
The record shows that trial counsel did not request a jury instruction on
collateral crime evidence before C.D. testified at trial. (Doc. 19-4, Ex. 49 at 290)
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During the charge conference the trial judge inquired of counsel about including the
instruction in the final instructions to the jury (Doc. 19-5, Ex. 51 at 529–30):
[TRIAL COUNSEL]: We’re still going to be doing the
evidence of other crimes?
THE COURT: Well, that’s actually the Williams Rule
instruction. Now, actually that instruction normally if
somebody asks me to do that I normally would read that
prior to the testimony of -[TRIAL COUNSEL]: [C.D.].
THE COURT: -- of [C.D.]. I was not asked to read that
instruction. I will say this for the record. A lot of times
lawyers don’t want me to read that instruction because it
just highlights the testimony. I have had -- you know, unless
it’s asked of me, I don’t necessarily read it. Do you want me
to read it in the final instructions, [trial counsel]? Is that
what you’re asking me to do?
[TRIA: COUNSEL]: No, I was just concerned whether or
not -- because that was in the original packet.
THE COURT: I think [the prosecutor] provided it because
it is an instruction that if it’s asked for can be read prior to
testimony of a Williams Rule witness. I do know that a lot
of lawyers don’t like it read.
[TRIAL COUNSEL]: Right.
THE COURT: Because it highlights that testimony even
more. And I’m assuming because you didn’t ask me to read
it that’s why you didn’t want me to read it. Is that correct?
[TRIAL COUNSEL]: Yes.
THE COURT: That’s a strategic decision you made,
correct?
[TRIAL COUNSEL]: Yes.
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THE COURT: At that point, I don’t think there’s any place
to put it in the final. It’s not really a final jury instruction.
Any other instructions anybody has that we would need to
talk about?
[TRIAL COUNSEL]: None from defense, Your Honor.
Trial counsel must decide which strategic and tactical option to pursue. A
petitioner must overcome the presumption that counsel’s conduct was a matter of
strategy. Strickland, 466 U.S. at 689; United States v. Perry, 908 F.2d 56, 59 (6th Cir.
1990). Tactical decisions within the range of reasonable professional competence are
not subject to collateral attack unless a decision was so “patently unreasonable that no
competent attorney would have chosen it.” Adams v. Wainwright, 709 F.2d 1443, 1445
(11th Cir. 1983). In assessing a lawyer’s performance, “[c]ourts must ‘indulge [the]
strong presumption’ that counsel’s performance was reasonable and that counsel made
all significant decisions in the exercise of reasonable professional judgment.” Chandler,
218 F.3d at 1314. See also, Dingle v. Sec’y, Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir.
2007) (“Even if counsel’s decision . . . appears to have been unwise in retrospect, the
decision will be held to have been ineffective assistance only if it was so patently
unreasonable that no competent attorney would have chosen it.”).
Davis does not show that counsel’s chosen trial strategy, viewed objectively,
was so “patently unreasonable that no competent attorney would have chosen it.”
Dingle, 480 F.3d at 1099. See also Wood v. Allen, 542 F.3d 1281, 1309 (11th Cir. 2008),
aff’d 558 U.S. 290 (2010) (“[O]ther attorneys might have done more or less . . . or they
might have made the strategic calls differently, but we cannot say that no reasonable
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attorney would have done as [counsel] did.”). Davis presents no evidence establishing
that a reasonable probability of acquittal exists absent counsel’s failure to request a
Williams Rule instruction. Because Davis fails to show that his ground of ineffective
assistance of trial counsel has “some merit,” he cannot establish that the ground is
“substantial” under Martinez to satisfy the cause and prejudice exception to procedural
default. He cannot meet the “fundamental miscarriage of justice” exception because
he presents no “new reliable evidence” that he is actually innocent. Schlup, 513 U.S.
at 327. Because Davis satisfies no exception to procedural default, Ground Two is
procedurally barred from federal review.
Accordingly, Davis’s petition for the writ of habeas corpus (Doc. 1) is
DENIED. The Clerk is directed to enter a judgment against Davis and CLOSE this
case.
DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
IT IS FURTHER ORDERED that Davis is not entitled to a 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, a
district court must first issue a certificate of appealability (“COA”). Section 2253(c)(2)
limits the issuing of a COA “only if the applicant has made a substantial showing of
the denial of a constitutional right.” To merit a certificate of appealability, Davis must
show that reasonable jurists would find debatable both (1) the merits of the underlying
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claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack
v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir
2001). Because he fails to show that reasonable jurists would debate either the merits
of the claims or the procedural issues, Davis is entitled to neither a certificate of
appealability nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma
pauperis is DENIED. Davis must obtain permission from the circuit court to appeal in
forma pauperis.
DONE AND ORDERED in Tampa, Florida on November 29, 2022.
Copies to:
Counsel of Record
Michael Davis, pro se
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