United States District Court, N.D. Alabama, Southern Division
DAVEON L. CATHEY, Petitioner,
LEON BOLLING, et al., Respondents.
SCOTT COOGLER UNITED STATES DISTRICT JUDGE.
an action on a petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by Daveon L. Cathey, a
state prisoner proceeding pro se. (Doc. 1). Cathey
challenges his 2013 conviction for murder in the Circuit
Court of Shelby County, Alabama on the grounds his trial
counsel rendered constitutionally deficient assistance by
failing to (1) object to expert testimony regarding DNA
evidence or (2) contest the reliability and relevance of that
testimony. (Id. at 1, 5, 7). On October 31, 2018,
the magistrate judge entered a report pursuant to 28 U.S.C.
§ 636(b), recommending that habeas relief be denied
because Cathey had failed to allege facts sufficient to show
prejudice resulting from his trial counsel's performance,
regardless of whether that performance was constitutionally
deficient. (Doc. 10). After receiving an extension of time,
Cathey filed objections to the report and recommendation.
establish ineffective assistance of counsel, a petitioner
must demonstrate his counsel's performance fell below an
objective standard of reasonableness and that there is a
reasonable probability the result of the proceeding would
have been different but for the deficiency. Strickland v.
Washington, 466 U.S. 668, 687-92 (1984). The question
for a federal court considering a habeas petitioner's
ineffective assistance claim “is not whether [the]
federal court believes the state court's determination
under the Strickland standard was incorrect but
whether that determination was unreasonable - a substantially
higher threshold.” Knowles v. Mirzayance, 556
U.S. 111, 123 (2009) (internal quotation marks omitted).
challenges the magistrate judge's conclusion he failed to
allege facts sufficient to show prejudice on three
grounds. First, he cites the following excerpt from
the prosecution's closing argument at trial:
Finally the hat at the scene with his DNA in it. The car is
parked right outside that house. BJ gets out. Bam, he's
shot. Takes off exactly in the direction Jamarcus said he did
and the hat comes off and it's sitting right there and
his DNA is in it. Major component. One in 1.74 quadrillion.
That is his DNA, ladies and gentlemen, inside that hat. He
was the one wearing it. He wasn't just in Alabaster. He
was standing there gunning down Jonathan Williams and there
is no doubt about it.
(Doc. 13 at 6 (quoting Doc. 7-5 at 57)). During its closing
argument the prosecution also cited the testimony of Anthony
Wooley, Bradley Gerhardt, Brandon Brown, and Timothy Wade as
evidence Cathey shot the victim. (Id. at 53-56).
Given the testimony of these other witnesses, Cathey has not
shown that discrediting the testimony of the expert witness
regarding DNA evidence would have resulted in a different
outcome at trial.
Cathey notes the trial court did not give a jury instruction
regarding the credibility of and weight to be given expert
testimony and appears to claim the court would have given
such an instruction had his trial counsel objected to the
expert testimony in question. (Doc. 13 at 6-7). However, Cathey
fails to show how a jury instruction regarding expert
testimony would have changed the outcome of his trial -
again, particularly in light of the testimony of Wooley,
Gerhardt, Brown, and Wade. Moreover, the United States Court
of Appeals for the Eleventh Circuit has held that jury
instructions similar to those given by the court at the
conclusion of Cathey's trial made it highly unlikely the
jury believed it had to accept an expert witness'
testimony as true and precluded the petitioner from
satisfying Strickland's prejudice prong with
respect to the claim his counsel should have requested a jury
instruction regarding expert testimony. See Hernandez v.
Florida Dep't of Corr., 470 Fed.Appx. 721, 724-25
(11th Cir. 2012), cert. denied, 568 U.S. 945
Cathey cites the testimony of the expert witness regarding
the frequency with which the DNA profile obtained from Cathey
and the blue hat found at the scene of the crime occur in the
population, in conjunction with the Alabama Supreme
Court's decision in Ex Parte Perry, 586 So.2d
242 (Ala. 1991). (Doc. 13 at 9-11). In that case, the court
noted that DNA population frequency evidence “creates a
potentially exaggerated impact on the trier of fact” by
“encourag[ing] the trier of fact in its determination
of whether the State has proven guilt beyond a reasonable
doubt to focus solely upon a numerical conclusion and to
disregard the weight of other evidence.” Ex parte
Perry, 586 So.2d at 254 (internal quotation marks
omitted). Here, as discussed, other evidence - namely, the
testimony of Wooley, Gerhardt, Brown, and Wade - also
connected Cathey to the crime. As a result, Cathey has not
shown a reasonable probability the result of his trial would
have been different had his trial counsel discredited the
expert testimony regarding DNA evidence.
addition to challenging the magistrate judge's conclusion
that he failed to allege facts sufficient to show prejudice,
Cathey contends the magistrate judge overlooked his claim
that his trial counsel failed to contest the reliability and
relevance of expert testimony regarding DNA. (Doc. 13 at 8).
The magistrate judge did not overlook this ineffective
assistance claim. She addressed the claim on the prejudice
prong of the Strickland inquiry and, consequently,
found it unnecessary to address the performance prong (i.e.,
whether the failure of Cathey's trial counsel to contest
the reliability and relevance of the testimony in question
rose to the level of constitutionally deficient performance).
See Ray v. Alabama Dep't of Corr., 809 F.3d
12012, 1208 (11th Cir. 2016) (“If a petitioner's
claim may be resolved on the prejudice prong alone, then our
precedents instruct that we do so.”), cert.
denied, 137 S.Ct. 417 (2016).
carefully reviewed and considered de novo all the
materials in the court file, including the magistrate
judge's report and recommendation and Cathey's
objections thereto, the court is of the opinion that the
magistrate judge's findings are due to be and are hereby
ADOPTED and her recommendation is
ACCEPTED. Cathey's objections are
OVERRULED. Accordingly, the petition for
writ of habeas corpus is due to be DENIED
and DISMISSED WITH PREJUDICE. Further,
because the petition does not present issues that are
debatable among jurists of reason, a certificate of
appealability is also due to be DENIED.
See 28 U.S.C. § 2253(c); Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000); Rule 11(a),
Rules Governing § 2254 Proceedings.
separate Final Order will be entered.