Davis v. Cain et al

Filing 22

MEMORANDUM OPINION AND ORDER re 21 Order on Motion to Dismiss, Order on Motion for Summary Judgment, Order on Motion for Miscellaneous Relief. Signed by Senior Judge Michael P. Mills on 5/7/2024. (tab)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
CURTIS DAVIS, JR.

PETITIONER

V.

CAUSE NO. 3:23-CV-00472-MPM-JMV

BURL CAIN, et al.

RESPONDENTS
MEMORANDUM OPINION AND ORDER

This matter comes before the Court on the pro se petition of Curtis Davis, Jr. for a writ of
habeas corpus under 28 U.S.C. § 2254. Respondents have moved to dismiss the petition as timebarred. In response, Petitioner moved for summary judgment. Both motions are now ripe for
consideration. For the reasons set forth below, Respondents’ motion to dismiss will be granted
and Petitioner’s motion for summary judgment will be denied. The instant petition will, therefore,
be dismissed with prejudice as untimely filed.
Procedural Background
Petitioner Curtis Davis, Jr. is currently in the custody of the Mississippi Department of
Corrections and housed at the Marshall County Correctional Facility located in Holly Springs,
Mississippi. Doc. # 1. On April 5, 2010, a Grand Jury in the Circuit Court of Montgomery County,
Mississippi, indicted Davis on two counts: Count I-Capital Murder, and Count II- Possession of
a Firearm by a Felon. Doc. # 7-1. On August 31, 2010, Davis pleaded guilty to a reduced charge
of manslaughter (in lieu of the capital murder charge) and felon in possession of a firearm. Doc.
# 7-2.

That same date, Davis was sentenced to a term of twenty (20) years on Count I

(Manslaughter) and ten (10) years on Count II (Felon in Possession of a Firearm), with the sentence
in Count II to run consecutive to the sentence in Count I, and both sentences to run consecutively
to any previously imposed sentences. Doc. # 7-3.

On May 24, 2011, Davis, through counsel, filed his first “Motion for Post Conviction
Relief” (“PCR motion”) in the Montgomery County Circuit Court. Doc. # 8-2 at 7-10. This PCR
motion was premised largely on Davis’ pre-judgment motions to compel discovery and to suppress
his confession. Id., see also Doc. # 8-2 at 12-73. According to Davis, the State failed to provide
him DNA evidence (crime lab reports), which allegedly proved his innocence, prior to his guilty
plea. Id.
The circuit court entered an Order on June 8, 2011, denying Davis’ first PCR motion. Doc.
# 7-4. In denying relief, the circuit court noted that the DNA testing was complete, and the results
were available on August 27, 2010, four days before Davis entered his guilty plea. Id. at 2. As
such, the trial court found that the DNA results did not constitute newly-discovered evidence that
was not available to Davis prior to his guilty plea nor did they exonerate him. Id. at 2-3. Rather,
the results merely “exclude [Davis] as a contributor to the samples”, and although there was “no
forensic evidence linking [Davis] with the crime, there [was] his confession and statements in the
plea colloquy that do.” Id. at 3
More than a year later, on October 10, 2012, Davis, proceeding pro se, filed a second PCR
motion in the Montgomery County Circuit Court. Doc. # 8-2 at 80-81. The circuit court entered
an Order on October 19, 20121 denying Davis’ second PCR motion, finding that it was barred as
successive under Mississippi Code Annotated § 99-39-23. Doc. # 7-5. The circuit court further
noted that Davis had failed to appeal the ruling on his first PCR motion and found that the second
motion raised no new issues. Id.
Davis filed a motion for reconsideration of the court’s order denying his second PCR
motion on November 3, 2012. Doc. # 8-3 at 38-42. The circuit court entered an Order on January
7, 2014, denying Davis’ motion to reconsider as without merit. Doc. # 8-7 at 55. Davis evidently

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The circuit court judge signed the order on October 18, 2012, but it was filed on the docket on October 19, 2012.

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filed a motion seeking leave to file an out-of-time appeal as the circuit court entered an Order
denying his motion for an out-of-time appeal on the same date (January 7, 2014). Doc. # 8-7 at
54. Soon thereafter, Davis filed a Notice of Appeal appealing the trial court’s denial of his second
PCR motion on January 13, 2014.2 Id. at 50.
The Mississippi Court of Appeals affirmed the trial court’s denial of Davis’ second PCR
motion as successive. Davis v. State, 174 So.3d 299, 306 (Miss. Ct. App. 2015). Rather than
summarily upholding the trial court, the Court of Appeals addressed all issues raised by Davis,
specifically his claims regarding newly-discovered-evidence, ineffective-assistance-of-counsel,
and Brady3 violations, finding them without merit and insufficient to overcome the procedural bar.
Id. at 299-306.
As to the newly-discovered-evidence claim, the state appellate court, like the circuit court,
found that “the DNA results do not qualify as newly discovered evidence, and they are not material
to the outcome of Davis[] conviction.” Id. at 303. The state appellate court explained that the
results were available four days prior to his plea and Davis had failed to show that the results were
unavailable to him or that the State had otherwise suppressed the results. Id. The Court of Appeals
further expounded that “[r]egardless of the absence of DNA evidence, the State had evidence of
Davis[] guilt because Davis confessed to law enforcement that he killed [the victim].” Id. at 303304. Moreover, “by pleading guilty, Davis nullified any assertion that he could somehow later
prove his innocence through undiscovered evidence.” Id. at 304 (citation omitted).
As to the ineffective-assistance-of-counsel claim, the state appellate court found that Davis
had failed to provide any evidence that “his attorney gave him erroneous advice.” Id. at 305. Davis


Respondents mistakenly describe the appeal as pertaining to the circuit court’s denial of his motion to reconsider,
but the notice of appeal clearly states that the appeal applies to the October 2012 order which denied Davis’ second
PCR motion. See Doc. # 8-7 at 50.
3
Brady v. Maryland, 373 U.S. 83 (1963).
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argued that his counsel coerced him into pleading guilty without waiting on the DNA test results,
but the court of appeals found that argument without merit, concluding that he had “not overcome
the procedural bar.” Id. And lastly, Davis asserted a Brady claim and argued that the State illegally
suppressed the DNA test results. Id. The state appellate court, however, noted that Davis moved
to compel the DNA test results on August 5, 2010, and that the crime lab records show that the
results became available on August 27, 2010, four days prior to entry of his guilty plea. Id. at 306.
The court of appeals found that Davis failed to produce any evidence that the test results were not
available to him, nor that the State suppressed the results. Id. The state appellate court further
reasoned that [t]he DNA test results only excluded Davis as a contributor to the samples taken and
were not exculpatory.” Id. Moreover, when Davis entered his guilty plea, “he waived the
arguments in his motion to compel the test results.” Id.
On March 15, 2019, Davis, proceeding pro se, signed and submitted a third PCR motion
which was stamped as “Filed” in the Montgomery County Circuit Court on April 2, 2019. Doc. #
8-12 at 9-43. Davis raised three grounds for relief (as summarized by the Court): (1) his sentence
violated his due process rights; (2) his guilty plea was neither voluntarily nor intelligently entered;
and (3) he received ineffective assistance of counsel. Id. On March 6, 2020, an Order was entered
by the circuit court denying Davis’ third PCR motion, finding it to be barred both as successive
and untimely filed.4 Doc. # 7-7. The Mississippi Court of Appeals affirmed the circuit court’s
denial of Davis’ third PCR motion by decision entered on March 22, 2022. See Davis v. State, 335
So.3d 1108 (Miss. Ct. App. 2022). In upholding the circuit court’s ruling, the state appellate court
emphasized that it had “previously addressed this exact issue during the appeal of Davis’[] 2012


The Order was signed by the trial judge on February 26, 2020, but was not “Filed” on the docket until March 6,
2020.

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PCR motion” and found Davis’ claim(s) “time-barred, successive-writ barred, and precluded by
res judicata.” Id. at 1111.
On March 28, 2023, Davis filed his fourth pro se PCR motion in the Montgomery County
Circuit Court. Doc. # 8-17 at 4-10. In this filing, Davis asserted yet another claim for ineffective
assistance of counsel. Id. The circuit court entered an Order on May 31, 2023, denying Davis’
motion, finding it untimely filed, barred as a second (or successive) PCR motion, and further barred
under the doctrine of res judicata. Doc. # 7-9. Davis failed to appeal the circuit court’s denial of
his fourth PCR motion.5
On December 4, 2023, Davis signed and submitted the instant petition for federal habeas
corpus relief which was stamped as “Received” by this Court on December 11, 2023. Doc. # 1.
Davis raises a single ground for relief (as summarized by the Court): that counsel was ineffective
in failing to provide him with the DNA results prior to entry of his guilty plea. Id. at 5. The Court
entered an Order on December 14, 2023, directing Respondents to answer Davis’ petition on or
before February 26, 2024. Doc. # 4. Thus, on February 26, 2024, Respondents moved to dismiss
Davis’ petition as untimely filed. Doc. # 7. In response, Davis filed a motion for summary
judgment on March 11, 2024. Doc. # 9. The parties have filed their respective responses and
replies to these motions, and the matter is now ripe for resolution.
Analysis
The instant petition for a writ of habeas corpus is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Egerton v. Cockrell, 334 F.3d 433, 436 (5th
Cir. 2003). The issue of whether Respondents’ motion to dismiss shall be granted turns on the
statute’s limitations period, which provides:

Davis sought an extension of time to file an appeal, but the state appellate court dismissed the motion for it to “be
pursued in the trial court.” Doc. # 8-16 at 1. The Montgomery County Circuit Court docket reflects that Davis chose
not to file a notice of appeal nor move for an extension of time. Doc. # 8-17 at 1-2.

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(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or the laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). The federal limitations period is tolled while a “properly filed
application for State post-conviction or other collateral review” is pending. See 28 U.S.C. §
2244(d)(2).
Mississippi law does not provide for a direct appeal from a guilty plea. See Miss. Code
Ann. § 99-35-101. Under current Fifth Circuit law, a Mississippi judgment issued pursuant to a
guilty plea is considered final ninety (90) days after sentencing on the plea. See Wallace v.
Mississippi, 43 F.4d 482, 497-501 (5th Cir. 2022). Davis was sentenced on August 31, 2010, and
the Sentencing Order was filed on September 1, 2010. Doc # 7-3. Davis’ conviction, therefore,
became final on November 30, 2010 (September 1, 2010 plus 90 days). Accordingly, absent
statutory or equitable tolling, Davis’ federal habeas petition must have been filed on or before
November 30, 2011, to be deemed timely. See 28 U.S.C. § 2244(d)(1) (providing that a federal
habeas petition must be filed within one year of the date on which the judgment became final).
Davis must have filed an application for post-conviction relief in state court on or before
November 30, 2011, to toll the federal limitations period. See 28 U.S.C. § 2244(d)(2) (providing
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for statutory tolling while a “properly-filed” motion for post-conviction relief is pending). Davis
submitted four post-conviction filings in the Montgomery County Circuit Court: he submitted his
first PCR motion on May 24, 2011; the second on October 10, 2012; the third on March 15, 2019;
and the fourth and final on March 28, 2023. See Doc. # 8-2 at 7-10, 80-81; # 8-12 at 9-43; and #
8-17 at 4-10. Davis’ first PCR motion, which was filed on May 24, 2011, was denied by order of
the circuit court on June 8, 2011. See Doc. # 8-2 at 7-10; # 7-4. As that first PCR motion was
filed before the expiration of the federal limitations period, Davis is entitled to statutory tolling
during the pendency of those proceedings, resulting in a tolling period of sixteen (16) days (May
24, 2011 through June 8, 2011). As the next (chronologically) of the remainder of Davis’ PCR
motions was not filed until October 10, 2012, he is not entitled to any additional statutory tolling
for the remaining three PCR motions.6 See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000)
(“Scott’s state habeas application did not toll the limitations period under § 2244(d)(2) because it
was not filed until after the period of limitation had expired.”) (emphasis omitted). Including the
sixteen (16) days for statutory tolling from the first-filed PCR, Davis’ federal habeas petition was
due on or before December 16, 2011 (November 30, 2011 plus 16 days).
Under the “mailbox rule,” the Court considers Davis’ federal habeas petition as filed on
the date that he delivered it to prison officials for mailing. Coleman v. Johnson, 184 F.3d 398,
401(5th Cir. 1999). Davis signed the instant petition on December 5, 2023, and it was “Received”
and filed on the Court’s docket on December 11, 2023. See Doc. # 1. Davis, therefore, filed the
instant petition almost twelve years after the December 16, 2011, deadline for filing said petition.
Consequently, the Court may review the merits of Davis’ claims only if he can demonstrate that
his case involves “rare and exceptional circumstances” that would warrant equitable tolling of the
limitations period. Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citations omitted).

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The narrow exceptions of Section 2244(d)(1)(B-D) are inapplicable in the instant case.

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The petitioner bears the burden of establishing that equitable tolling is warranted. Phillips
v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on reh’g, 223 F.3d 799 (2000) (per curiam).
To satisfy this burden, the petitioner must show “(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way” of timely filing his federal habeas
petition. Holland v. Florida, 560 U.S. 631, 649 (2010) (citations omitted). While Davis does not
specifically argue for the application of equitable tolling, he does aver that he “cannot fall under
28 U.S.C. § 2244(d) because it [is] a fundamental issue and constitution[al] violation.” Doc. # 1
at 13. The Court notes, however, that the state-law fundamental rights exception does not apply
in federal habeas proceedings. See Williams v. Shaw, 2021 WL 3722337, at *2 (S.D. Miss. Aug.
23, 2021) (explaining that “[petitioner’s] claims are barred by AEDPA and not the [state]
UPPCRA, a Mississippi statute[,]” and “AEDPA has no exception for constitutional claims and
expressly precludes them if they are filed too late”); Howell v. State, 358 So. 3d 613, 616 (Miss.
2023) (overruling any case where the court held that “the fundamental-rights exception can apply
to the substantive, constitutional bars codified by the Legislature in the [state post-conviction]
Act”).
To the extent that he opines that his mistaken understanding of the law, particularly the
applicability of the fundamental-rights exception, warrants equitable tolling, that argument is
unavailing. This is so because “mere ignorance of the law or lack of knowledge of filing deadlines
does not justify equitable tolling . . . .” Felder, F.3d at 172 (5th Cir. 2000); see also Saahir v.
Collins, 956 F.2d 115, 118-19 (5th Cir. 1992); Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473,
478 (5th Cir. 1991). Moreover, Davis has not shown that he pursued his rights diligently, nor has
he identified any extraordinary circumstance that prevented him from filing the instant petition.
It is unclear whether Davis asserts, or attempts to assert, a claim of “actual innocence.”
However, to the extent that he does so, any such claim would fail. “[A] credible showing of actual
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innocence may allow a prisoner to pursue his constitutional claims . . . on the merits
notwithstanding the existence of a procedural bar to relief,” such as the expiration of the statute of
limitations. McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). A petitioner makes a credible
showing of actual innocence if, based on new evidence, he “show[s] that it is more likely than not
that no reasonable juror would have convicted him in light of the new evidence.” Id. at 395. The
threshold showing for a credible claim of actual innocence is “extraordinarily high.” Herrera v.
Collins, 506 U.S. 390, 417 (1993). Davis seemingly asserts that the aforementioned DNA results
amount to “new” evidence indicating his innocence. Putting aside the issue of whether the DNA
results truly constitute “new” evidence, the DNA results fail to establish the requisite showing of
Davis’ actual innocence. As noted by the state appellate court, the results merely exclude Davis
as a contributor to the sample taken; they do not exclude him as the perpetrator of the crime.
Moreover, Davis confessed his guilt to law enforcement. Given these circumstances, Davis fails
to demonstrate that “no reasonable juror would have convicted him in light of the [DNA results].”
In sum, Davis has failed to establish the applicability of equitable tolling, nor has he made
the requisite showing of actual innocence sufficient to overcome a procedural bar. Consequently,
Davis’ petition is time-barred.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing § 2254 Proceedings for the United States
District Courts, this Court must issue or deny a certificate of appealability (“COA”) upon the entry
of a final order adverse to the petitioner, and Davis must obtain a COA before appealing this
Court’s decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). Because his petition for
writ of habeas corpus is rejected on procedural grounds, Davis must demonstrate “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
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correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Applying this
standard, the Court concludes that a COA should not issue in this case.
Conclusion
For the reasons set forth above, Respondents’ Motion [7] to Dismiss will be GRANTED,
and the instant petition for a writ of habeas corpus will be DISMISSED with prejudice as
untimely filed. As a result, Petitioner’s motion [9] for summary judgment will be DENIED. The
Court further DENIES a certificate of appealability.

Any pending motions are hereby

TERMINATED. A separate judgment in accordance with this opinion and order will enter this
day.
SO ORDERED, this the 7th day of May, 2024.

/s/ Michael P. Mills
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI

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