Tevis v. Sims

Filing 25

MEMORANDUM OPINION & ORDER: (1) 22 REPORT AND RECOMMENDATIONS is ACCEPTED and ADOPTED as the Court's own; (2) Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE; (3) No certificate of appealability shall issue from this Court. Signed by Judge Joseph M. Hood on 7/13/2018.(JJ)cc: COR, pro se petitioner via USP Modified text on 7/13/2018 (JJ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

JOSHUA LEE TEVIS,

)
)
)
)
)
)
)
)
)
)

Petitioner,
v.
RAVONNE SIMS, Warden
Respondent.

This

matter

is

Case No.
5:17-CV-118-JMH-REW
MEMORANDUM OPINION &
ORDER

******
before the Court

upon

the

Report

and

Recommendation of former United States Magistrate Judge Robert E.
Wier [DE 22] and Petitioner’s objections [DE 23].

This action was

referred to the magistrate judge for the purpose of reviewing the
merit of Joshua Tevis’s Petition for a Writ of Habeas Corpus under
28 U.S.C. § 2254.
Petition be denied.

[DE 1].

Judge Wier recommended that Tevis’s

[DE 22}. Tevis filed objections. [DE 23].

Having considered the matter de novo, the Court adopts Judge Wier’s
recommendation as its own.
I.

Background
A Fayette Circuit Court jury found Joshua Tevis guilty of

reckless homicide and being a persistent felony offender in the
first degree after a trial in December 2014.
commonwealth, No. 2015-CA-213-MR, 2016
App. Apr. 1, 2016).

WL 1273040, at *1 (Ky. Ct.

Tevis received a fifteen-year sentence and
1 

See Tevis v.

after exhausting appeals in state court, he filed a Petition for
Writ of Habeas Corpus under 28 U.S.C. § 2254.

[DE 1].

Warden

Ravonne Sims responded [DE 16] and Tevis replied [DE 18].

Former

Magistrate Judge (and current District Judge) Robert E. Wier issued
a report and recommendation in which he recommended this court
dismiss the petitioner with prejudice and deny a certificate of
appealability.

[DE 22].

Tevis filed timely objections [DE 23]

making this matter ripe for review.
The Kentucky Court of Appeals provided a succinct version of
the facts in this case:
At approximately 2:30 a.m. on September 22, 2013, Tevis
existed the Diva’s Gentleman’s Club in Lexington and walked
to his vehicle. At the same time, Johntel Crocker and others
were attempting to separate two women who were fighting near
Tevis’s vehicle. As Tevis approached his vehicle, he observed
Crocker step on the rear bumper of his vehicle. Tevis took
exception to this and exchanged words with Crocker as they
crossed paths. Crocker paused, turned, and shoved Tevis
against a wall. Almost immediately, Tevis pulled a gun and
shot Crocker in the chest. Crocker ran, but collapsed moments
later. Tevis fled the scene on foot, leaving his vehicle
behind. When police arrived moments later, they found Crocker
unresponsive. Officers and paramedics rendered first-aid;
however, Crocker was pronounced dead upon arrival at the
hospital.
During their investigation, police obtained the surveillance
video of the Diva’s parking lot and eventually determined
that Tevis was the individual who shot and killed Crocker.
Soon afterward, Tevis turned himself in to the Lexington
Police Department, and authorities charged him with Crocker’s
murder.
On November 25, 2013, a Fayette County Grand Jury indicted
Tevis for murder, being a convicted felon in possession of a
handgun, and being a PFO in the first degree. The case
proceeded to trial on December 9, 2014. At trial, Tevis’s
2 

theory of the case was that he shot Crocker in self-defense.
At the conclusion of a three-day trial, the jury returned a
verdict of not guilty on the charge of murder. However, the
jury convicted Tevis of reckless homicide, and found him to
be a persistent felony offender in the first degree. The trial
court imposed the recommended sentence of five years for the
reckless homicide, enhanced to fifteen years by virtue of
Tevis’s conviction as a persistent felony offender.
Tevis, 2016 WL 1273040, at *1 (footnote omitted).

In his habeas petition, Tevis argues (1) that the jury viewed
excluded

evidence,

referenced

Tevis’s

and

(2)

decision

the
to

prosecutor

remain

inappropriately

silent.

Both

errors,

according to Tevis, require this Court grant a Writ of Habeas
Corpus.
II.

Judge Wier disagreed, and so does this Court.
Standard of Review

Under Federal Rule of Civil Procedure 72, a party may object
to

and

seek

recommendation.

review

of

a

magistrate

judge’s

See Fed. R. Civ. P. 72(b)(2).

report

and

“A judge of the

court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(c).
stated with specificity.

Any objections must be

Thomas v. Arn, 474 U.S. 140, 151 (1985).

“An ‘objection’ that does nothing more than state a disagreement
with a magistrate’s suggested resolution, or simply summarizes
what has been presented before, is not an ‘objection’ as that term

3 

is used in this context.”

VanDiver v. Martin, 304 F.Supp.2d 934,

937–38 (E.D. Mich. 2004).
III. Analysis
The Antiterrorism and Effective Death Penalty Act (AEDPA)
provides:
(d) 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.
28 U.S.C. 2254(d)(1)–(2).
Tevis does not object to the magistrate judge’s extended and
sound discussion of the AEDPA standard.

[DE 22, pp. 3–7].

the Court will not discuss it further here.

Thus,

The magistrate judge

more than adequately laid out the standard, and this Court adopts
it as its own.
Tevis makes two arguments why he is entitled to habeas relief
under AEDPA.

First, he argues that he deserves relief because

the jury might have viewed certain portions of a video that had
been excluded.

[DE 1, pp. 5–7].

4 

As the magistrate judge found the “video of the shooting was
at the core of the proof.”

[DE 22, p. 7].

Of the more than hour-

long video, only about twelve minutes were to be admitted under an
agreement between the parties.

[Id.].

video went back to the jury.

But a DVD with the entire

The Kentucky Court of Appeals

determined that no error occurred because the court instructed the
jury to view only the twelve-minute relevant portion of the video
and the “jury is presumed to have followed this admonition.”

[DE

22, p. 9].
The state court of appeals wrote:
During a bench conference, the court informed both parties
that while the jury was in deliberations after the guilt
phase, it requested the time stamp for the beginning of the
relevant portion of the surveillance video. This strongly
suggests that the jury followed the court’s admonishment and
only viewed the surveillance video’s relevant portion.
[DE 22, p. 9 (quoting Kentucky Court of Appeals opinion,
Tevis, 2016 WL 1273040, at *2–3)].
Tevis takes aim at this analysis, but he misses the mark:
How could the jury find the Petitioner guilty without viewing
the relevant portion of the video footage? Furthermore, how
could they have been presumed to follow the admonition given
by the Honorable Judge Goodwine ‘prior to deliberations’?
The jury decided to find the defendant guilty of the charges
with the excluded footage in the room during and then
afterward ask about the time stamp for the relevant portion.
[DE 23, p.

4].

5 

As the magistrate judge pointed out, the Supreme Court has
held that a “jury is presumed to follow its instructions.”
v.

Angelone,

120

S.Ct.

727,

733

(2000).

Tevis

Weeks

argues

that

presumption does not apply here: “How can such a presumption be
made in this case that the jury followed such an admonition
entering the guilt phase but then after finding the Petitioner
guilty asked for the relevant time stamp?”

[DE 23, p. 5].

Tevis, it seems, does not grasp what the state appeals court
said in its opinion and what happened at trial.

The jurors did

not first find Tevis guilty and then ask for the timestamp.

They

asked for the time stamp in the jury room before rendering a
verdict.

And as the magistrate found, the Supreme Court has ruled

that juries presumably follow admonitions, and the state court’s
decision was not contrary to or an unreasonable application of
Supreme Court precedent.

Weeks, 120 S.Ct. at 733.

The magistrate judge also found that even if the jury watched
the video, the video was not prejudicial: “even
viewed

the

excluded

video

portions

(or,

assuming the jury

more

likely,

fast-

forwarded through them), the jury would have merely seen (mostly
mundane)

footage

Tevis

(or

implicating him in crime or prejudicial conduct) in any way.”

[DE

22, p. 12].

of

a

parking

lot,

not

involving

Thus, Kentucky’s “treatment of this issue was

reasonably consistent with these principles and this case law.”

6 

[Id., p. 15].

Judge Wier’s analysis is extensive.

Tevis does not

make any objections regarding Judge Wier’s discussion about the
non-prejudicial

nature

of

the

video

tape—his

only

objection

centers on the jury asking for a time stamp, as discussed above.
Thus, there is no other specific objection for this court to
consider. Thomas, 474 U.S. at 161.

So this Court accepts and

adopts the magistrate’s report and recommendation as its own.
Second, Tevis argues that the prosecutor’s statements to the
jury that no witness testified that Tevis was in fear for his life
violated his Fifth Amendment rights.

This is so, Tevis argues,

because the prosecutor’s statements implicitly violated his right
to be free from self-incrimination by the “prosecutor’s repeated
indirect references to his failures to take the stand.”

[DE 1, p.

7]. In particular, Tevis argues the prosecutor violated his rights
when he stated that “there has been no evidence from any witness
that you heard that the defendant feared for his life.”

[Id.].

Tevis argues that he—and he alone—could have testified to whether
he feared for his life. Thus, according to Tevis, the prosecutor’s
statement necessarily implicated Tevis’s Fifth Amendment right to
silence.
The magistrate judge conducted a thorough and detailed review
of Tevis’s arguments.

And this Court finds itself in agreement

with the magistrate judge: the state court’s analysis on this issue

7 

was not contrary to or an unreasonable application of federal law
as determined by the Supreme Court.

28 U.S.C.

§ 2254(d).

As the

state court found, “the Commonwealth’s statements merely alluded
to the fact that the jury heard no testimony from any witness that
would support Tevis’s claim that he feared for his life.”

[DE 22,

p. 17 (citing Commonwealth v. Tevis, 2016 WL 1273040 at *1–2 (Ky.
Ct. App. 2016).
In his original petition, Tevis cited Griffin v. California
for the proposition that the Constitution “prohibits comment on
the defendant’s silence.”

85 S.Ct. 1229, 1232 n.5 (1965).

And as

the magistrate found, this is true, but it is not what occurred in
Tevis’s case.

Two problems plague Tevis’s argument: (1) the

prosecution’s comments applied to many witnesses who could have
testified about whether Tevis talked about his fear, or Tevis’s
demeanor or body language [DE 22, p. 18 n.11], and (2) “the Supreme
Court has not held that such comments invariably violate Griffin.”
[Id. (quoting Webb v. Mitchell, 586 F.3d 383, 397 (6th Cir. 2009)].
Indeed, in Webb, as the magistrate judge noted, the Sixth Circuit
rejected an argument from a petitioner where a prosecutor referred
to evidence as “uncontradicted” even though “only Webb could have
contradicted” it. Id. at 397. As the magistrate judge determined,
“there
the

is

Supreme

no ‘clearly established federal law as
Court

of

the

United

a

prosecutor

indirectly commenting on an accused’s silence in the

manner the

8 

States”

that

determined by

Commonwealth did
18].

here violated

the Constitution.”

[DE 22, p.

Because this is the standard AEDPA requires, Tevis has not

met his burden for habeas relief.
In his objections, Tevis does not argue to the contrary.
Instead, he argues merely that new law is needed for future similar
cases.

[DE 23, p. 2].

AEDPA.

That is not how habeas relief works under

Tevis’s only other argument is the magistrate judge

improperly applied the Sixth Circuit’s “generally applicable test”
in determining whether the prosecutor’s statements violated the
Fifth

Amendment.

magistrate

judge

This

argument

conducted

the

is

beside

generally

this

point.

applicable

The

analysis

purely to demonstrate that even under Sixth Circuit law, Tevis’s
arguments failed.

But as the magistrate judge noted, the Sixth

Circuit’s test does “not constitute clearly established federal
law as determined by the Supreme Court,” which is what AEDPA
requires.

[DE 22, p. 19].

The magistrate judge did not have to

analyze the claim under Sixth Circuit precedent at all.

The

Supreme

the

Court

Constitution.

has

not

held

that

these

Webb, 586 F.3d at 397.

comments

violate

Thus, the state court’s

determination was not contrary to or an unreasonable application
of federal law as decided by the Supreme Court, and Tevis is not
entitled to relief.

9 

The magistrate judge also recommended denying a certificate
of appealability.

[DE 22, p. 22].

A certificate may issue when

the petitioner has made a “substantial showing of the denial of a
constitutional right.”

28 U.S.C. § 2253(c)(2).

The petitioner

must demonstrate that “reasonable jurists would find the district
court’s

assessment

wrong.”

of

the

constitutional

claims

debatable

Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000).

or
The

magistrate judge found that Tevis failed to make a substantial
showing of the denial of a constitutional right.

[DE 22, p. 22].

Tevis makes not specific objection on this issues.

But as this

Court has already made clear in this Order, it agrees with the
magistrate judge that Tevis has not made the showing required for
a certificate of appealability.
IV.

Conclusion

Accordingly, for the reasons stated herein, IT IS ORDERED as
follows:
(1)

that the Report and Recommendation of the magistrate
judge [DE 22] is ACCEPTED and ADOPTED as the Court’s
own;

(2)

that Tevis’s Petition for Writ of Habeas Corpus [DE 1]
is DISMISSED WITH PREJUDICE;

(3)

that no certificate of appealability shall issue from
this Court.
10 

This the 13th day of July, 2018.

11