Davis v. Carter

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          STEPHEN M. DOYLE, UNITED STATES MAGISTRATE JUDGE.

         Acting pro se, Alabama inmate Davon Lashon Davis (“Davis”) brings this petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction and sentence for committing domestic violence by strangulation or suffocation. Doc. 1.^[1]

         I. BACKGROUND AND PROCEDURAL HISTORY

         On September 16, 2013, a Houston County jury found Davis guilty of committing domestic violence by strangulation or suffocation, in violation of § 13A-6-138, Ala. Code 1975. (Doc. 8-1) at 15-16. On November 12, 2013, the trial court sentenced Davis as a habitual felony offender to 30 years' imprisonment. (Doc. 8-1) at 24.

         Davis appealed, raising claims that (1) § 13A-6-138, Ala. Code 1975, the statute defining domestic violence by strangulation or suffocation, is unconstitutionally vague and overbroad; (2) the trial court erred in allowing testimony that a pistol used by the victim belonged to Davis and had been reported as stolen; (3) the State improperly impeached a defense witness; (4) the trial court improperly limited the defense's cross-examination of a witness regarding whether the injuries suffered by the victim could have been self-inflicted; and (5) the jury's verdict was against the weight of the evidence. See (Doc. 8-3).

         On August 22, 2014, the Alabama Court of Criminal Appeals issued a memorandum opinion affirming Davis's conviction and sentence. (Doc. 8-4). Davis applied for rehearing, which was overruled. He then filed a petition for writ of certiorari with the Alabama Supreme Court, which that court denied on January 30, 2015. (Docs. 8-5 & 8-6).

         On April 29, 2015, Davis filed a pro se petition in the trial court seeking post-conviction relief under Rule 32 of the Alabama Rules of Criminal Procedure. See (Doc. 8-8) at 11. On June 11, 2015, Davis amended his Rule 32 petition to present additional claims.^[2] (Doc. 8-9) at 70-81. On June 29, 2015, the trial court entered an order denying Davis's Rule 32 petition. (Doc. 8-10) at 55. Davis appealed, and on March 4, 2016, the Alabama Court of Criminal Appeals issued a memorandum opinion affirming the trial court's judgment denying Davis's Rule 32 petition. (Doc. 8-12). Davis applied for rehearing, which was overruled. He then filed a petition for writ of certiorari with the Alabama Supreme Court, which that court denied on May 13, 2016. Docs. 8-13 & 8-14.

         On September 16, 2016, Davis initiated this habeas action by filing a § 2254 petition asserting the following claims:

Ground One. He is actually innocent of the crime of which he was convicted.

Ground Two. His jury was not drawn from a fair cross-section of African-Americans and women in the community.

Ground Three. Section 13A-6-138, Ala. Code 1975, the statute defining domestic violence by strangulation or suffocation, is unconstitutionally vague.

Ground Four. His 30-year sentence under Alabama's Habitual Felony Offender Act (“HFOA”) violates the Eighth Amendment's prohibition against cruel and unusual punishment.

Ground Five. The State failed to prove a prima facie case of domestic violence by strangulation or suffocation.

Ground Six. His Sixth Amendment right to confrontation was violated when the trial court limited the defense's cross-examination of a police officer regarding whether the victim's injuries could have been self-inflicted.

Ground Seven. His Sixth Amendment right to confrontation was violated when he was disallowed from impeaching the victim with her prior inconsistent statement Ground Eight. The State improperly impeached a defense witness using an incident report created by a police investigator.

Ground Nine. He “never used or touched” the gun on the day the victim was assaulted, “but was charged with an offense and that violated the Fourth Amendment of the U.S. Constitution.” Ground Ten. His warrantless arrest violated the Fourth Amendment.

(Doc. 1) at 5-34.

         On November 22, 2016, Davis filed a “Motion to Delete Claim(s)” (Doc. 13), in which he stated he wished to withdraw the following claims from his § 2254 petition: Ground One (the actual-innocence claim); Ground Two (the fair cross-section claim): Ground Seven (the confrontation/impeachment claim regarding the victim); and Ground 10 (the Fourth Amendment/unlawful arrest claim). This Court granted Davis's motion to withdraw these claims from his petition.^[3] (Doc. 15).

         On December 21, 2016, while his § 2254 petition was pending in this court, Davis filed a second pro se Rule 32 petition in the trial court. See (Doc. 23-1) at 10-34. In that petition, Davis presented claims that (1) the statute under which he was convicted violated the Equal Protection Clause because it proscribed his right “to enter into and maintain certain intimate human relationship conduct without intervention of the government”; (2) the trial court's jury instruction regarding § 13A-6-138, Ala. Code 1975, created a misleading “mandatory rebuttable presumption” that Davis was in a dating relationship, i.e., a “qualified relationship” with the victim; and (3) his 30-year sentence violated the principles of Apprendi v. New Jersey, 530 U.S. 466 (2000).

         On January 18, 2017, the trial court entered an order denying the Rule 32 petition. (Doc. 23-1) at 37. Davis appealed, and on March 28, 2017, the Alabama Court of Criminal Appeals issued a memorandum opinion affirming the trial court's judgment denying the Rule 32 petition. (Doc. 23-4). Davis applied for rehearing, which was overruled. He then filed a petition for writ of certiorari with the Alabama Supreme Court, which that court denied on October 13, 2017. (Docs. 23-5 & 23-6).

         On November 3, 2017, Davis amended his § 2254 petition to add the same claims he presented to the state courts in his second Rule 32 petition. (Doc. 18).

         Respondents argue (Docs. 8 & 23) that all of Davis's claims, in his § 2254 petition and in the amendment thereto, are procedurally defaulted, either because the last state court to review the claims clearly and expressly rejected the claims based on a procedural bar or because the claims were unexhausted in the state courts and Davis cannot return to state court to exhaust them.

         For the reasons that follow, it is the recommendation of the Magistrate Judge that Davis's § 2254 petition, as amended, be denied without an evidentiary hearing and this case be dismissed with prejudice.

         II. DISCUSSION

         A. ...