United States District Court, M.D. Alabama, Southern Division
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.
...