Davenport v. Smith

Filing 45

ORDER ADOPTING REPORT AND RECOMMENDATIONS, Case Terminated. (1) Petitioner's Motion to Hold his Pending Habeas Petition in Abeyance (Doc. # 40 ) is DENIED; (2) Petitioner's Objections to the Magistrate Judge's R&R (Doc. # 37 ) are hereby OVERRULED; (3) The Magistrate Judge's Report and Recommendation (Doc. # 36 ) is ADOPTED as indicated herein; (4) The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. # 1 ) is hereby DENIED. (5) For re asons set forth in the Magistrate Judge's R&R (Doc. # 36 ), the Court determines there would be no arguable merit for an appeal in this matter and, therefore, NO CERTIFICATE OF APPEALABILITY SHALL ISSUE; and (6) This matter be, and is hereby DISMISSED WITH PREJUDICE and STRICKEN from the Court's active docket. Signed by Judge David L. Bunning on 10/3/2017. (RBB)cc: COR, paper copy to Lewis E. Davenport, via US Mail.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 14-219-DLB-EBA
LEWIS E. DAVENPORT
vs.

PETITIONER

ORDER ADOPTING REPORT AND RECOMMENDATION

AARON SMITH, Warden

RESPONDENT
****************

I.

INTRODUCTION
This matter is before the Court on the Report and Recommendation (“R&R”) of

Magistrate Judge Edward B. Atkins (Doc. # 36), wherein he recommends that Petitioner
Lewis Davenports’s pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254 (Doc. # 1) be denied as meritless. Petitioner having filed objections to the R&R
(Doc. # 37), and Warden Smith having responded (Doc. # 39), the R&R is ripe for review.
Petitioner subsequently filed a Motion to Hold his Pending Habeas Petition in Abeyance
(Doc. # 40), which has now been fully briefed (Docs. # 43 and 44), and is also ripe for
review. For the reasons set forth herein, Petitioner’s Abeyance Motion (Doc. # 40) is
denied, the R&R (Doc. # 36) is adopted as the findings of fact and conclusions of law of
the Court, and Petitioner’s Petition for a Writ of Habeas Corpus (Doc. # 1) is denied.
II.

FACTUAL AND PROCEDURAL HISTORY
The facts underlying this case have been recited many times since Petitioner’s

convictions for murder and first-degree robbery in 2002, culminating in the Supreme Court
of Kentucky’s summary in Davenport v. Commonwealth, 177 S.W.3d 763, 766-67 (Ky.
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2005). (Doc. # 36 at 2-3) (quoting extensively from the Supreme Court of Kentucky
opinion affirming Petitioner’s conviction). Petitioner filed his petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 on November 12, 2015. (Doc. # 1). Warden Aaron
Smith filed his response to the habeas petition on December 9, 2015. (Doc. # 20).
Petitioner replied on May 18, 2016, (Doc. # 33), at which point the matter was fully
submitted to the chambers of Magistrate Judge Atkins.
On January 31, 2017, Magistrate Judge Atkins issued his R&R, recommending
that the Petition (Doc. # 1) be denied. (Doc. # 36). Petitioner filed his Objections on
February 23, 2017 (Doc. # 37), and Warden Smith responded on March 10, 2017. (Doc.
# 39). While the Court’s review of the Magistrate Judge’s R&R was pending, Petitioner
filed a Motion to Hold his Pending Habeas Corpus Petition in Abeyance in order to bring
additional claims in the Kentucky state courts. (Doc. # 40). Warden Smith responded,
(Doc. # 43) and Petitioner filed his Reply. (Doc. # 44).
III.

ANALYSIS
A.

Petitioner’s Habeas Petition will not be held in abeyance.

The Supreme Court has long held that federal district courts cannot adjudicate
habeas petitions comprised of both exhausted and unexhausted claims. See Rose v.
Lundy, 455 U.S. 509 (1982). With the passage of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), petitioners for habeas corpus relief have one year to bring
a habeas petition after exhausting their state court remedies. Rhines v. Weber, 544 U.S.
269, 274 (2005). To accommodate the situation where an unexhausted claim may need
to be brought in state court while fully exhausted claims are already in federal court, the
Supreme Court balanced AEDPA’s one-year statute of limitations against a district court’s

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inability to adjudicate petitions containing unexhausted claims and determined that, in
limited circumstances, a district court could grant a “stay and abeyance” on the exhausted
claims before it, pending the resolution of the unexhausted claims. Rhines, 544 U.S. at
277. Because “stay and abeyance should be available only in limited circumstances,” id.,
to succeed on such a motion the petitioner must “show good cause for failing to present
the claims before the state court in the first instance, and … show that his unexhausted
claims are not ‘plainly meritless.’” Wagner v. Smith, 581 F.3d 410, 419 (6th Cir. 2009)
(quoting Rhines, 544 U.S. at 277).
Petitioner’s Motion does not detail the facts underlying his request for a stay,
instead stating only that he has “found two (2) issues that have not been addressed by
the McCreary Circuit Court.” (Doc. # 40 at 1). When challenged by Respondent’s
Memorandum in Opposition, (Doc. # 43), Petitioner provided additional details in his
Reply, alleging the following issues related to his ineffective-assistance-of-counsel
claims: (1) Petitioner’s “Trial Counsel Failed to Appeal the Trial Courts[sic] Ruling on the
Motion to Suppress Petitioner’s Statement”; (2) “Trial Counsel Failed to present any
Mitigation Evidence at Sentencing Phase”; and (3) Trial Counsel’s[sic] Failed to Appeal
the Trial Courts[sic] overruling of Petitioner’s Judgment Notwithstanding the Verdict and
Motion for a New Trial.” (Doc. # 44 at 2). According to Petitioner, his Motion contained
new evidence in the form of two affidavits, available in his original habeas petition. Id. at
2-3.
Several factors urge this Court to deny Petitioner’s Abeyance Motion. First, the
“new evidence” is not new, but was included in his petition (Doc. # 1), and has been
presented to the state courts, including the original trial court. (Doc. # 20-1 at 48)

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(Petitioner’s direct appeal brief to the Supreme Court of Kentucky) (“A motion for a
judgment notwithstanding the verdicts and for a new trial was filed on April 19, 2002 …
An addendum, including affidavits of two inmates who said that Chris Davenport told them
that he had bargained for his testimony was filed on May 13, 2002.”). Thus, the Court
finds that Petitioner has not presented any “new” evidence in support of his Motion.
Second, Petitioner has failed to allege facts or present arguments establishing good
cause to excuse his failure to bring the claims in state court before. Nor has he presented
any explanation as to why his new claims are not “plainly meritless.” Wagner, 581 F.3d
at 419.
Because Petitioner has identified no new evidence, shown no good cause for his
failure to bring any claims he believes he may still be able to exhaust in state court, and
failed to demonstrate why his new claims are not “plainly meritless,” Petitioner’s Motion
to Hold his Pending Habeas Petition in Abeyance (Doc. # 40) is denied. Accordingly,
the Court will review the R&R.
B.

The Magistrate Judge’s R&R is adopted.

The Court reviews de novo those portions of the R&R to which specific objections
have been filed. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Where no objections
are made, or the objections are vague or conclusory, the Court is not required to review
under a de novo, or any other, standard. Thomas v. Arn, 474 U.S. 140, 150 (1985);
United States v. Jenkins, No. 6:12-cr-13-GFVT, 2017 WL 3431834, at *1 (E.D. Ky. Aug.
8, 2017). Allegations in pro se habeas petitions are held to a less stringent standard and
given more “liberal construction,” however “inartfully pleaded.” Franklin v. Rose, 765 F.2d
82, 84–85 (6th Cir. 1985) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972); Burris v.

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United States, 430 F.2d 399, 403 (7th Cir.1970), cert. denied, 401 U.S. 921 (1971)).
In reviewing an R&R for a habeas petition, the court must determine whether the
state court’s decision was “contrary to” clearly established federal law, “involved an
unreasonable application of clearly established federal law,” or was “based upon an
unreasonable determination of the facts in light” of the state-court record. 28 U.S.C. §
2254(d); see also Harrington v. Richter, 562 U.S. 86, 100 (2011). When analyzing an
ineffective-assistance-of-counsel claim under Strickland v. Washington, 466 U.S. 668
(1984), the “pivotal question is whether the state court’s application of the Strickland
standard was unreasonable.” Richter, 562 U.S. at 100.
Because Petitioner has raised a multitude of issues, the Court will analyze the R&R
on a claim-by-claim basis.
1.

The Court adopts the findings of fact and conclusions of law in
the R&R to which Petitioner did not object.

Petitioner did not raise specific objections in the R&R to several of the claims.
Therefore, the Court adopts the Magistrate Judge’s findings of facts as its own for claims
One through Nine. (Doc. # 36 at 12-37).
For three of the claims, Petitioner raised objections that did not respond to the
Magistrate Judge’s analysis and determination, and therefore cannot be considered
“specific objections.”

Petitioner raised specific objections to the Magistrate Judge’s

recommendation that his third claim be denied. (Doc. # 37 at 17). They were, however,
objections that were not germane to the Magistrate Judge’s determination. In his habeas
petition, Petitioner alleged that his due-process rights had been violated when he
“requested and was denied funds to hire an expert crime scene analyst.” (Doc. # 1 at 5).
In his memorandum in support of the habeas petition, Petitioner continued his claim—
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“Defense counsel filed a pre-trial motion for funds to employ a crime scene investigation
expert to assist the defense in preparing … when the court denied the defense’s motion
… it denied [Petitioner’s] Rights of Due Process…” (Doc. # 1-1 at 13-14). Petitioner’s
Objection to the R&R ignores this argument, instead attempting to turn this issue into an
ineffective-assistance-of-counsel claim—“Here petitioner was subject to ineffective
assistance of trial counsel and appellate counsel in that trial counsel failed to … consult
an expert to assist … [and] Petitioner received ineffective appellate Counsel when
counsel failed to raise this issue on appeal…” (Doc. # 27 at 18-19).
Similarly, for the eighth claim, Petitioner raised objections to the Magistrate
Judge’s recommended disposition, but they were not specific. (Doc. # 37 at 35). Instead,
Petitioner repeated two ideas lifted from the Magistrate Judge’s analysis: the phrase
“double jeopardy” and the idea that counsel cannot be ineffective for failing to perform a
futile act. Id. He did not further develop these ideas with facts or analysis. Id. Finally,
for the fourth claim, Petitioner challenged the R&R by arguing, again, that because he
had allegedly requested that his appellate counsel raise “[all] constitutional issues,” he
had not failed to exhaust his state court arguments with respect to certain potentially
exculpatory witnesses. (Doc. # 37 at 28).
2.

The Court adopts the R&R as to Petitioner’s exhausted or
procedurally defaulted claims.

The Magistrate Judge analyzed claims ten through seventeen under a different
lens. The first seven of these claims are ineffective-assistance-of-counsel claims that the
Magistrate Judge determined were procedurally defaulted because they had not been
previously presented to the state court. (Doc. # 36 at 37). The last is a claim of
“cumulative error,” which is not a legitimate ground on which to bring a habeas claim. Id.
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at 39 (quoting Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)).

The bulk of

Petitioner’s Objections to the R&R were levied at the Magistrate Judge’s determination
regarding these claims. (Doc. # 37 at 5-17).
The Supreme Court has recently explained the difference between exhausting
claims and procedurally defaulting on claims as they relate to federal habeas litigation.
Davila v. Davis, 137 S. Ct. 2058 (2017). The exhaustion requirement under 28 U.S.C. §
2254(b)(1)(A) requires a state prisoner to exhaust all state remedies before bringing his
claim in the federal courts, so as to “avoid the ‘unseemly’ result of a federal court
‘upset[ting] a state court conviction without’ first according the state courts an ‘opportunity
to … correct a constitutional violation.’” Id. at 2064 (quoting Rose, 455 U.S. at 518). As
an “important ‘corollary’ to the exhaustion argument,” id. (quoting Dretke v. Haley, 541
U.S. 386, 392 (2004)), federal courts are additionally prohibited from reviewing “federal
claims that were procedurally defaulted in state court—that is, claims that the state court
denied based on an adequate and independent state procedural rule.” Id. (citing Beard
v. Kindler, 558 U.S. 53, 55 (2009)). Confusingly, the Supreme Court has also held that
“[i]n habeas, the sanction for failing to exhaust properly (preclusion of review in federal
court) is given the separate name of procedural default, although the habeas doctrines of
exhaustion and procedural default ‘are similar in purpose and design and implicate similar
concerns.’” Woodford v. Ngo, 548 U.S. 81, 92 (2006) (quoting Keeney v. Tamayo-Reyes,
504 U.S. 1, 7 (1992)).
When a habeas petitioner has not “exhausted available state remedies as to any
of his federal claims,” the federal habeas petition must be dismissed.

Coleman v.

Thompson, 501 U.S. 722, 731 (1991). Similarly, when a state prisoner defaults his

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“federal claims in state court pursuant to an independent and adequate state procedural
rule, federal habeas review of the claims is barred.” Id. at 750. However, this latter
prohibition can be overcome if the petitioner can “demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental miscarriage of justice.” Id.
Petitioner does not dispute or specifically confront the “procedural default” problem
that the Magistrate Judge found fatal for seven of his claims, instead suggesting that he
sent letters to the Kentucky Department of Public Advocacy requesting that “they submit
Constitutional issues to the Kentucky Court of Appeals,” and that his appellate counsel’s
failure to include all the claims shows ineffective assistance of counsel. (Doc. # 37 at 3).
But “in proceedings for which the Constitution does not guarantee the assistance of
counsel at all, attorney error cannot provide cause to excuse a default.” Davila, 137 S.
Ct. at 2065 (declining to allow federal courts to “hear a substantial, but procedurally
defaulted, claim of ineffective assistance of appellate counsel when a prisoner’s state
postconviction counsel provides ineffective assistance by failing to raise that claim.”); see
also Coleman, 501 U.S. at 752 (“There is no constitutional right to an attorney in state
post-conviction proceedings.”).
Thus, Petitioner does not meet the requirements in Coleman that would permit this
Court to review the merits of claims ten through sixteen. Finding that Petitioner has failed
to exhaust claims ten through sixteen, and that the Supreme Court has previously stated
that a failure to exhaust within the habeas context is called a procedural default,
Woodford, 548 at 92, the Court adopts the Magistrate Judge’s findings of fact and

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conclusions of law as its own for these claims.1
Petitioner also objects to the Magistrate Judge’s recommendation on claim
eighteen, which argued that “the cumulative effect of the previous collective errors
deprived Petitioner of a fair trial.” (Doc. # 36 at 39; Doc. # 37 at 17). The Magistrate
Judge’s conclusion that a claim of cumulative error will not support a petition for habeas
relief is correct. Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005) (citing Scott v. Elo,
302 F.3d 598, 607 (6th Cir. 2002) and Lorraine v. Coyle, 291, F.3d 416, 447 (6th Cir.
2002)) (“[W]e have held that, post-AEDPA, not even constitutional errors that would not
individually support habeas relief can be cumulated to support habeas relief.”). The Court
adopts the Magistrate Judge’s findings of facts and conclusions of law with respect to this
claim.
3.

Petitioner’s additional objections to state-court facts and to
arguments not raised in his habeas petition are denied.

In addition to the objections listed above, Petitioner objects to several of the factual
findings of the Magistrate Judge, and raises two new claims in his Objections to the R&R.
(Doc. # 37). Each is denied.

1
Although Petitioner did not object with specificity to the Magistrate Judge’s determination
of the Petitioner’s Fourteenth Claim, out of an abundance of caution the Court believes this claim
warrants additional attention. In the R&R, the Magistrate Judge couches this claim as follows:
“Trial counsel was ineffective in failing to object to evidence tending to prove first-degree robbery,
and failed to object to first-degree robbery instruction.” (Doc. # 36 at 37-38). The Magistrate
Judge found that this argument had not been raised at the state-court level. Id. But a review of
Petitioner’s brief on appeal from the McCreary County Circuit Court decision on his Ky. R. Crim.
P. 11.42 petition shows that—regarding the jury instruction—Petitioner did indeed allege that his
trial counsel provided ineffective assistance of counsel when counsel failed to object to the jury
instructions on robbery. (Doc. # 20-1 at 579-580). The habeas petition raises the same issue:
“trial counsel’s failure to object to instruction on first-degree robbery … waived his right to question
the adequacy of evidence of force to sustain a conviction under this charge.” (Doc. # 1-1 at 23).
However, Petitioner did not object with specificity to this determination and so the Court will adopt
the Magistrate Judge’s denial of this claim as it its own. Thomas, 474 U.S. at 150.
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Petitioner raises eight objections to the facts stated by the Magistrate Judge in the
R&R. (Doc. # 37 at 22-27, 29-30). However, these facts come from the Supreme Court
of Kentucky and are presumed to be correct. 28 U.S.C. § 2254(e)(1) (“[A] determination
of a 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.”). Petitioner has not met his burden of rebutting the correctness of the Supreme
Court of Kentucky’s facts by clear and convincing evidence, and is not permitted to “simply
reargue his version of the crime at this stage, after a Jury and the Kentucky Supreme
Court have already rejected it.”

Bedford v. Webb, No. 3:05-cv-82-KKC, 2007 WL

3396498, *2 (E.D. Ky., Nov. 13, 2007). Thus, Petitioner’s factual objections are not well
taken and will be overruled.
Petitioner also attempts to raise a new ineffective-assistance-of-counsel claim in
his Objections by arguing that his trial counsel failed to preserve as an issue for appeal
the trial court’s evidentiary ruling permitting “a police detective to testify regarding his
observations as to the demeanor of another witness.” (Doc. # 37 at 17). But a review of
the record shows this to be false on its face. (Doc. # 20-1 at 157) (Opinion of the Supreme
Court of Kentucky) (“[Davenport] now appeals as a matter of right, alleging five trial errors:
… (3) that the trial court erred in allowing a police detective to testify regarding his
observations as to the demeanor of another witness.”). In addition, Petitioner failed to
raise this issue in his Ky. R. Crim. P. 11.42 appeal, thereby vitiating his right to raise the
issue in his federal habeas petition. (Doc. # 20-1 at 554-585); see Coleman, 501 U.S. at
731.

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Finally, Petitioner attempts to challenge the legal decision of the Supreme Court
of Kentucky on whether his motion for a directed verdict was improperly denied by alleging
that the decision “contains errors that violate the Petitioner’s Constitutional Rights.” (Doc.
# 37 at 18-19). Construing this in the light of Petitioner’s pro se status, the Court considers
this newly raised issue an attempt to amend Petitioner’s habeas petition by attacking the
decision-making process of the Kentucky Supreme Court. But because Petitioner’s new
claim asserts a “new ground for relief supported by facts that different in both time and
type from those the original pleading set forth,” it does not relate back under Rule 15(c).
United States v. Perry, No. 7:12-cv-7204-GFVT, 2015 WL 5737962, *7 (E.D. Ky., Sept.
30, 2015) (quoting Mayle v. Felix, 545 U.S. 644, 657 (2005)). Without the ability to relate
back, the statute of limitations is not tolled and this claim is barred by AEDPA’s one-year
statute of limitations.
IV.

CONCLUSION
Accordingly, IT IS ORDERED as follows:
(1)

Petitioner’s Motion to Hold his Pending Habeas Petition in Abeyance (Doc.

# 40) is DENIED;
(2)

Petitioner’s Objections to the Magistrate Judge’s R&R (Doc. # 37) are

hereby OVERRULED;
(3)

The Magistrate Judge’s Report and Recommendation (Doc. # 36) is

ADOPTED as indicated herein;
(4)

The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc.

# 1) is hereby DENIED;

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(5)

For reasons set forth in the Magistrate Judge’s R&R (Doc. # 36), the Court

determines there would be no arguable merit for an appeal in this matter and, therefore,
NO CERTIFICATE OF APPEALABILITY SHALL ISSUE; and
(6)

This matter be, and is hereby DISMISSED WITH PREJUDICE and

STRICKEN from the Court’s active docket.
This 3rd day of October, 2017.

K:\DATA\ORDERS\London\2014\14-219 Adopting and modifying R&R.docx

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