Davis v. Epps et al
Filing
16
MEMORANDUM OPINION re 15 Judgment. Signed by District Judge Sharion Aycock on 8/17/12. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
MARCUS DAVIS
PETITIONER
vs.
CIVIL ACTION NO.: 4:11cv116-SA-SAA
CHRISTOPHER EPPS, ET AL.
RESPONDENTS
MEMORANDUM OPINION AND ORDER
Petitioner Marcus Davis, Mississippi prisoner # 148403, has filed a federal habeas
petition pursuant to 28 U.S.C. § 2254 challenging his conviction and sentence for attempted
armed robbery. Having considered the submission of the parties, the State court record, and the
law applicable to Petitioner’s claims, the Court finds that the petition should be denied, for the
reasons that follow.
Facts and Procedural History
On May 4, 2007, Travis Anderson drove Petitioner to a bank in Greenwood, Mississippi,
where Petitioner attempted to rob an employee of Dollar Tree who was preparing to drop the
store’s night deposit in the bank’s night drop deposit box. The attempt was unsuccessful, and the
pair fled the scene in a sedan. A police car chase ensued, and Petitioner and Anderson
eventually abandoned the car and attempted to flee on foot. Anderson was caught, and some of
Petitioner’s personal belongings were found inside the sedan. Petitioner was later located and
arrested in Texas. Both Anderson and Petitioner were indicted for one count of attempted armed
robbery and one count of fleeing law enforcement in the Circuit Court of Leflore County,
Mississippi.
Prior to trial, Anderson entered a guilty plea. Anderson testified against Petitioner at
1
trial, and he testified that Petitioner admitted to him that Petitioner had previously robbed Dollar
Tree employees who were making a night deposit. Dollar Tree employees and law enforcement
officers also testified for the prosecution, and Petitioner did not call any witnesses in his defense
at trial. He was convicted in April 2009 of attempted armed robbery and sentenced to a twenty
year term of imprisonment.1 His sole ground for relief on appeal was that the trial court erred in
admitting Anderson’s trial testimony regarding Petitioner’s prior bad acts, and the Mississippi
Supreme Court denied relief. See Davis v. State, 40 So.3d 525 (Miss. 2010) (Cause No. 2009KA-00805-SCT). Petitioner then sought leave to proceed in the trial court on an application for
post-conviction relief, asserting the following grounds for relief, as paraphrased by the Court:
Claim One: That the prosecution improperly failed to disclose to Petitioner or his
counsel that its star witness had been offered a favorable plea agreement in exchange for
testifying against Petitioner;
Claim Two: That he is innocent of the crime for which he was convicted;
Claim Three: That the trial court erred in not granting Petitioner’s jury instruction on
circumstantial evidence;
Claim Four: That the trial court erred in admitting evidence of his prior bad acts;
Claim Five: That the cumulative effect of the errors at trial denied him a fair trial; and
Claim Six: That Petitioner was denied the effective assistance of counsel during trial.
The Mississippi Supreme Court rejected Petitioner’s claims, finding that claim four was barred
by res judicata , and that the remaining claims were waived under State law. (See Response, Ex.
1
Petitioner was sentenced to serve a term of imprisonment of ten years, with an
additional ten years of post-release supervision, five supervised and five unsupervised. (See
SCR vol. 1, 55).
2
B). Thereafter, Petitioner filed a timely petition for writ of habeas corpus in this Court on or
about October 17, 2011, asserting essentially the same claims that were raised on post-conviction
review.
Legal Standard
The Court’s review of Petitioner’s claim is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), because his federal habeas petition was filed after the
statute’s effective date. See Lindh v. Murphy, 521 U.S. 320 (1997). AEDPA prevents the grant
of federal habeas relief on any claim adjudicated on the merits in state court unless that
adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established United States Supreme Court precedent; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light of the presented
evidence. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
Discussion
A. Grounds One, Two, Three, Five, and Six are Procedurally Barred
The doctrine of procedural default prohibits a federal court from considering a federal
habeas claim that the State court rejected on independent and adequate State law grounds.
Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999). The bar is adequate if it is “strictly or
regularly” applied to the “vast majority of similar claims.” Amos v. Scott, 61 F.3d 333, 339 (5th
Cir. 1995). Here, the Mississippi Supreme Court found Petitioner’s claims in grounds one, two,
three, five, and six to be procedurally barred pursuant to Miss. Code Ann. § 99-29-21(1) because
they were not raised at trial or on direct appeal. (See R. Mot. to Dismiss, Ex. B). Although
Petitioner argues to the contrary, this has been found adequate state procedural bar that has been
3
strictly and regularly applied to similar claims. Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir.
1997). Petitioner has not shown “inconsistent and irregular application” of the bar, and the
claims are defaulted pursuant to an independent and adequate state procedural rule. Id. at 861.
A petitioner may receive federal habeas review of a procedurally defaulted claim if he
can demonstrate “‘cause’ for the default and ‘prejudice attributable thereto,’ or demonstrate that
failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.’”
Coleman v. Thompson, 501 U.S. 722, 749-50 (1991) (internal citations omitted). In order to
demonstrate cause, a petitioner must show that “some objective factor external to the defense
impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477
U.S. 478, 488 (1986). Prejudice may be demonstrated by showing that the errors “worked to
[the petitioner’s] actual and substantial disadvantage, infecting his entire trial with error of
constitutional dimensions.” Id. at 494 (citation omitted).
If a petitioner is unable to demonstrate cause and prejudice, he may obtain review of his
claim by demonstrating that the application of the procedural bar would result in a miscarriage of
justice because he is factually innocent of the crime of which he was convicted. Fairman v.
Anderson, 188 F.3d 635, 644 (5th Cir. 1999) (citation omitted). This requires showing, “as a
factual matter, that he did not commit the crime of conviction” and requires Petitioner’s
allegations to be supported with new, reliable evidence that was not presented at trial. Id.
Petitioner bears the burden of establishing, in light of this new evidence, that it is “more likely
than not that no reasonable juror would have convicted him.” Id. (quoting Schlup v. Delo, 513
U.S. 298, 327 (1995)).
Petitioner maintains that cause is established because (1) Anderson’s statements
4
implicating Petitioner were untimely disclosed and in violation of court rules that required
discovery to be timely supplemented; and (2) the errors committed in his case affect his
fundamental rights.
The record in this case demonstrates that Anderson entered a plea on the day that
Petitioner’s trial began. (See, e.g., SCR vol. 2, 20-24). Petitioner and his counsel knew in
advance of Anderson’s testimony that Anderson had entered a plea agreement with the State and
would offer testimony against Petitioner. (See SCR vol. 2, 2, 6, 20, 22, 24-25). Petitioner has
presented no evidence that the prosecution deliberately delayed informing Petitioner of the fact
or scope of a deal with Anderson. Anderson testified at trial that he had made a plea deal with
the State and testified as to the recommended terms. (See id. at 122-23). Petitioner has not
demonstrated any non-disclosure by the prosecution, and Petitioner was certainly in possession
of knowledge of Anderson’s cooperation by the time he filed his direct appeal. Accordingly, this
allegation is insufficient to establish cause to overcome the procedural default.
As for Petitioner’s remaining defaulted claims, the Court notes that Petitioner has
presented no evidence that he is actually innocent of the crime of conviction or that he was
denied a constitutionally protected right. Petitioner has not shown that he had a fundamental
right to a circumstantial evidence instruction, and the denial of the instruction is insufficient to
exempt Petitioner from the procedural bar imposed. See Holland v. United States, 348 U.S. 121,
139-40 (1954) (holding there is no constitutional right to a special jury instruction when the case
is founded on circumstantial evidence).
The Court notes that counsel’s failure to preserve a claim in State court can constitute
cause sufficient to overcome a procedural default. See Coleman, 501 U.S. at 753-54. However,
5
a petitioner claiming ineffective assistance of counsel for the purpose of having the underlying
substantive claim reviewed on its merits must ordinarily have presented the ineffective assistance
of counsel claim independently in State court before it may be argued as cause to excuse a
procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000). In this case, Petitioner
did not argue that appellate counsel’s failure caused the default of his potential trial court claims.
Rather, he merely argued that counsel was ineffective in not seeking a limiting instruction.
To the extent that State post-conviction proceedings constituted the first instance in
which Petitioner could bring his claim regarding trial counsel’s failure to seek a limiting
instruction, the Court can consider Petitioner’s claim. See Archer v. State, 986 So.2d 951, 955
(Miss. 2008) (“Ordinarily, ineffective-assistance-of-counsel claims are more appropriately
brought during post-conviction proceedings.”). A federal habeas petitioner’s claim that he was
denied the effective assistance of counsel at trial is generally measured by the two-pronged test
set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective
assistance of counsel, Petitioner must establish that (1) his trial counsel’s performance was so
deficient that it cannot be said that the attorney was functioning as “counsel” within the meaning
of the Sixth Amendment, and (2) the deficient performance prejudiced his defense. See id. at
687; see also Boyle v. Johnson, 93 F.3d 180, 187 (5th Cir. 1996) (ineffective assistance of
counsel claims analyzed under Strickland framework).
In this case, the trial court offered a limiting instruction as to the testimony of Anderson,
and trial counsel rejected it. Counsel stated that Petitioner was “better served” by not drawing
more attention to Anderson’s testimony than necessary. (SCR vol. 3, 159). The Court finds that
counsel’s choice was a strategic one, and it has not been shown “so ill chosen that it permeate[d]
6
the entire trial with obvious unfairness” such as necessary to be the basis for a claim of
constitutionally ineffective assistance of counsel. Green v. Johnson, 116 F.3d 1115, 1122 (5th
Cir. 1997). Petitioner has not demonstrated an inadequate representation by counsel that
prejudiced his defense, and his allegation of counsel’s ineffectiveness is insufficient to exempt
his claims from the procedural bar imposed.
In sum, Petitioner has failed to demonstrate an exception to the procedural bar otherwise
applicable to the above-listed claims, and they are barred from federal habeas review. To the
extent that Petitioner’s claim of ineffective assistance based on counsel’s failure to seek a
limiting instruction is not barred, it does not warrant relief.
B. Ground Four was Adjudicated on the Merits
The sole ground raised on Petitioner’s direct appeal was that the trial court erred in
admitting testimony from Petitioner’s accomplice, Anderson, that Petitioner had previously
robbed an employee of the same Dollar Tree store. See Davis, 40 So.3d at 529. While Petitioner
moved to exclude this evidence of his prior bad acts, the trial court found it relevant and
admissible, and that its probative value was not substantially outweighed by the danger of unfair
prejudice. Id.
In considering this claim on appeal, the Mississippi Supreme Court found “that the
evidence regarding the [previous] armed robbery of the same Dollar Tree store was relevant to
proving [Petitioner’s] intent, and further, that it was not admitted to prove [Petitioner’s]
character to show that he acted in conformity therewith.” Id. at 530 (citing Miss. R. Evid.
404(b)). The court also found that the evidence was probative and “not the type of evidence that
would play on the jurors’ sympathies or emotions.” Id. The court further found that it was
7
necessary to introduce evidence of Petitioner’s involvement in the prior robbery to “explain to
the jury how Anderson came to be involved in the attempted robbery.” Id. (See also SCR vol. 2,
42-43).
This claim was considered on direct appeal and found without merit. Therefore, habeas
relief is available only if the adjudication “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law,” or if the decision “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). A decision is “contrary to” the clearly established law if the
state court’s conclusion is opposite of that reached by the United States Supreme Court on a
question of law or if the case is decided differently than the Supreme Court decided it given
“materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Clearly
established law is unreasonably applied if the state court identifies the correct legal principle but
unreasonably applies it to the facts of the petitioner’s case. See id. at 407-08. Additionally,
there is a presumption that the factual findings of the court are correct, and a petitioner must
rebut their presumptive correctness with clear and convincing evidence. See Miller v. Johnson,
200 F.3d 274, 281 (5th Cir. 2000) (28 USC § 2254(e)(1)).
The Court finds that Petitioner’s claims as they relate to court rules or evidentiary matters
are beyond the scope of federal habeas relief. See, e.g., Engle v. Isaac, 456 U.S. 107, 121 n.21
(1982). The Supreme Court has stated:
The habeas statute “unambiguously provides that a federal court may issue a writ
of habeas corpus to a state prisoner ‘only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.’ Wilson v.
Corcoran, ... 131 S.Ct.13, 15, 178 L.Ed.2d 276 (2010) (per curiam) (quoting 28
U.S.C. § 2254(a)). “We have stated many times that ‘federal habeas relief does
not lie for errors of state law.’” Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct.
8
475, 116 L.Ed.2d 385 (1991) quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110
S.Ct. 3092, 111 L.Ed.2d 606 (1990).
Swarthout v. Cooke, ____ U.S. ___, 131 S.Ct. 859, 861 (2011). In this case, the admitted
evidence was found necessary to complete the jury’s understanding of the events in question,
relevant to Petitioner’s intent on the night of the crime, and not unfairly prejudicial. See Davis,
40 So.3d at 530-31. Petitioner has not demonstrated that the decision to deny him relief on this
ground is contrary to or involves an unreasonable application of clearly established law, or that
the decision is unreasonable in light of the facts presented at trial. Therefore, Petitioner is not
entitled to habeas relief on this ground, and it is dismissed.
Certificate of Appealability
Petitioner must obtain a certificate of appealability (“COA”) before appealing this
Court’s decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue
unless Petitioner makes “a substantial showing of the denial of a constitutional right” of any
claim rejected on its merits, which Petitioner may do by demonstrating that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.” 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim
that has been rejected on procedural grounds, Petitioner 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 correct in its
procedural ruling.” Slack, 529 U.S. at 484. Applying this standard, the Court concludes that a
COA should be denied in this case.
Conclusion
It is hereby ordered that Petitioner’s petition for a writ of habeas corpus is DENIED and
9
DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. All pending
motions are dismissed as moot. A judgment in accordance with this opinion and order will issue
this day.
THIS the 17th day of August, 2012.
_/s/ Sharion Aycock
U.S. DISTRICT JUDGE
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?