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Davis v. Grandlienard

United States District Court, D. Minnesota

November 19, 2014


Jerome Emmanuel Davis, pro se.

Jean E. Burdorf, HENNEPIN COUNTY ATTORNEY'S OFFICE; Matthew Frank and James B. Early, MINNESOTA ATTORNEY GENERAL'S OFFICE, for respondent.


JEFFREY J. KEYES, Magistrate Judge.

Petitioner Jerome Emmanuel Davis, a Minnesota state prisoner, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for first-degree felony murder. The petition has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. Based on that review, this Court recommends that Davis's habeas petition be denied and this action be dismissed with prejudice.


The events at issue in Davis's criminal case were described by the Minnesota Supreme Court as follows:

Armando Calix bled to death on the lawn outside of his apartment shortly after being shot in the neck at about 8:00 p.m. on May 11, 2007. The investigation of Calix's death led the police to believe that either Davis or his accomplice, Toriano Dorman, killed Calix while committing an aggravated robbery. After a jury trial in which the following facts were established, Davis was convicted of aiding and abetting first-degree felony murder....
The day before the murder, May 10, 2007, Davis made inculpatory statements during a telephone conversation with his friend, Anthony Whigham. The conversation was recorded because Whigham was an inmate at the Hennepin County Jail. During the phone call, Whigham asked, "What is going down with you, " to which Davis responded, "Fucked [up, ] about to rob somebody." When Whigham asked if he was serious, Davis replied, "Hell yeah." Davis then told Whigham that he had purchased a "bubble" because his old car had been stolen. Later, Whigham implied that he wanted Davis to give him money to hire a lawyer. Davis responded that he did not currently have any money but that a white woman was trying to line up a $10, 000 "lick" for him. Davis told Whigham that if the lick went well, he would give Whigham $1, 500 for a lawyer. Immediately after the discussion of the planned robbery, Davis asked Whigham for Jovan Gentle's telephone number.
Jovan Gentle contacted Davis during the afternoon of May 11, 2007. Gentle wanted to meet and talk to Davis about getting back Gentle's watch - a watch that Davis had sold to another friend. Davis agreed to meet, and they met at or near 36th Street and Portland Avenue in south Minneapolis. Gentle came to the meeting in his car, and Davis arrived in a "four-door, blue Caprice, " or "bubble." According to Gentle, Davis had two passengers: a person he identified as "Fifty, " and Toriano Dorman. As soon as Davis and Gentle arrived, they got out of their cars and started arguing about the watch. During the argument, Dorman got out of Davis's car "clenching" a revolver in an apparent attempt to defend Davis, but Davis ordered Dorman back inside the car. After the argument, Davis and Gentle got back in their cars and drove toward 31st Street. Gentle then drove home.
Sometime later, Gentle received a telephone call from Davis. Davis asked Gentle to meet him on 31st Street and Pleasant Avenue to help with a robbery. While Gentle initially told Davis that he would help, he later changed his mind and stayed at home.
Cell phone records showed that Dorman and Davis, and Dorman and Calix, were in contact with each other on the day of Calix's murder. The police discovered that Calix had made and received numerous calls to and from a phone associated with Dorman throughout the day of the shooting. The last call to Calix from Dorman's phone was made at 8:01 p.m., and was routed through a cell tower a few blocks from the crime scene. Phone records also revealed that there were seven calls between Dorman's cell phone and one of Davis's cell phones earlier in the day.
In addition to the cell phone record evidence, the State also introduced testimony from B.B., who placed Davis and Dorman at the crime scene just minutes before Calix's death. Shortly before 8:00 p.m., B.B. noticed Davis and Dorman walking across the yard of 3043 Grand Avenue South. B.B. recognized them because he had seen them on many occasions. According to B.B., Davis and Dorman hesitated in the yard momentarily, and then went through a hole in a fence to the apartment building next door, 3044 Pleasant Avenue (Calix's apartment building). While they were going through the fence, B.B. saw Davis holding something on his side to stop it from catching on the hole in the fence. Davis and Dorman then entered Calix's apartment building. Just after Davis and Dorman entered the apartment, B.B. got into his car to leave, but due to traffic congestion, he was unable to leave. About 3 minutes after he got into his car, B.B. heard a gunshot and called 911....
Minneapolis police officers Steven Manhood and Jeffrey Egge responded to the crime scene less than 2 minutes after B.B. called 911. The officers found Calix lying in a pool of blood in front of the 3044 Pleasant Avenue apartment building. Officer Manhood checked Calix for a pulse but did not find one. When other officers arrived, Manhood and Egge followed a trail of blood into Apartment 2 of the 3044 Pleasant Avenue building. After checking the apartment for other victims, suspects, and weapons, police sealed the apartment until a search warrant could be obtained.
After obtaining a warrant, the police searched Apartment 2. They found a bullet hole in a window and bullet fragments near the window. They also found a knife on the ground with Calix's blood on it. The police swabbed the door knobs from the main door to the apartment and an interior closet door for DNA and fingerprints, but these swabs did not render meaningful results.
The medical examiner pronounced Calix dead at the scene. Later, an autopsy revealed that Calix died from one gunshot wound to the neck.

State v. Davis, 820 N.W.2d 525, 528-29 (Minn. 2012) (footnotes omitted).

On April 30, 2009, Davis was indicted in Hennepin County, Minnesota on one count of aiding and abetting first-degree felony murder in violation of Minn. Stat. § 609.185(a)(3). Id. at 532. A jury found Davis guilty of that offense, and the trial court sentenced Davis to a life term of imprisonment. Id. at 533.

Davis appealed his conviction directly to the Minnesota Supreme Court. On appeal, Davis's counsel raised five grounds for relief, arguing that (1) statements made by Davis to the police during an interrogation one week after the murder should have been suppressed as solicited as involuntary, see Miranda v. Arizona, 384 U.S. 436 (1966); (2) the district court improperly excluded two hearsay statements that would have proven helpful to Davis's defense; (3) the district court erred when it allowed Gentle to speak at trial about his fearfulness from testifying; (4) the district court erred when it instructed the jury that no adverse inference should be drawn from Davis's failure to testify at trial, despite Davis not requesting such an instruction; and (5) even if any of these errors individually did not entitle Davis to relief, the cumulative effect of the errors required that Davis be given a new trial. See Davis, 820 N.W.2d at 533. Davis, acting pro se, also raised "dozens" of other issues in two supplemental briefs filed with the Minnesota Supreme Court. Id. at 539. The Minnesota Supreme Court found that none of the grounds for relief raised by Davis, either through his counsel or in his supplemental briefs, entitled him to a new trial, and it therefore affirmed Davis's conviction. Id. at 533-40.

Following his appeal to the Minnesota Supreme Court, Davis filed a petition for a writ of habeas corpus in this District pursuant to § 2254. See Petition [ECF No. 1]; Pet. Addendum [ECF No. 1-1]. Davis raises fifteen separate grounds for relief in his habeas petition and accompanying documents:

• In Ground One, Davis argues that the deportation of two potential witnesses deprived him of evidence favorable to his defense and thereby violated his Sixth Amendment right to compulsory process for obtaining favorable witnesses. See Petition at 5.
• In Ground Two, Davis argues that the prosecutor knowingly allowed Gentle to offer false testimony, both during the grand-jury proceedings and at trial. See id. at 7.
• In Ground Three, Davis argues that statements he made to police during an interrogation after the murder were improperly introduced at trial in violation of Miranda. See id. at 8.
• In Ground Four, Davis argues that the trial court erred by instructing the jury not to draw any adverse inference from Davis's decision not to testify, despite Davis not requesting such an instruction. See id. at 10.
• In Ground Five, Davis argues that certain hearsay statements favorable to his defense should not have been excluded from evidence at trial. See Pet. Addendum at 1.
• In Ground Six, Davis argues that the trial court erred in allowing Gentle to testify that he was fearful of what might happen to him as a result of testifying at Davis's trial. See id. at 2.
• In Ground Seven, Davis argues that the jury's finding that he was guilty of first-degree felony murder is logically inconsistent with Dorman's guilty plea to second-degree murder with respect to Calix's death. See id. at 3-4.
• In Ground Eight, Davis argues that the prosecution failed to disclose evidence favorable to his defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963); and Giglio v. United States, 405 U.S. 150 (1972). See Pet. Addendum at 5.
• In Ground Nine, Davis argues that the evidence introduced at his trial was insufficient to sustain a guilty verdict. See id. at 6.
• In Ground Ten, Davis argues that his conviction was in violation of a provision of Minnesota law which provides that a criminal conviction cannot be based on the uncorroborated testimony of an accomplice. See id. at 7-8. He also argues that this violation of Minnesota law resulted in a parallel deprivation of his federal constitutional due-process rights. Id.
• In Ground Eleven, Davis argues that his defense counsel failed to provide effective assistance in several respects. See id. at 9.
• In Ground Twelve, Davis argues that the prosecutor made "inappropriate and prejudicial statements and also misstated evidence and made up evidence of testimony" during closing arguments. Id. at 10.
• In Ground Thirteen, Davis argues that the prosecution struck a prospective juror on the basis of that person's race (or perhaps age) in violation of Batson v. Kentucky, 476 U.S. 79 (1986). See Pet. Addendum at 12.
• In Ground Fourteen, Davis argues that the trial court erred by allowing the jury to listen to prejudicial audio recordings admitted into evidence during their deliberations. See id. at 13.
• Finally, in Ground Fifteen, Davis argues that the cumulative effect of these alleged errors requires reversal of his conviction, even if no individual error requires reversal on its own. See id. at 14.

Respondent originally moved to dismiss the habeas petition on the basis that some of the claims raised by Davis had not been exhausted in the state courts See ECF No. 5; Rose v. Lundy, 455 U.S. 509, 522 (1982) (finding that mixed petitions raising both exhausted and unexhausted claims should be dismissed for failure to exhaust state remedies). This Court agreed with respondent that Davis's habeas petition raised both exhausted and unexhausted claims. See ECF No. 16. But rather than dismissing the habeas petition, this Court permitted Davis to withdraw the unexhausted claims and proceed with the claims that had been adequately raised before the Minnesota Supreme Court. Id.

Davis elected to withdraw Ground Nine (sufficiency of the evidence) and Ground Fourteen (the trial court's decision to allow jurors to listen during deliberations to audio recordings admitted to evidence) of his habeas petition, thus leaving thirteen grounds for relief pending. See ECF No. 17. Respondent then moved once again to dismiss the habeas petition, arguing that one of the remaining thirteen claims was unexhausted and thus that the petition continued to be a mixed petition. See ECF No. 23. This Court denied respondent's second motion to dismiss and ordered respondent to file an answer to the habeas petition. See ECF No. 28. Respondent has filed this answer, and Davis has filed a reply to the answer. This matter is now fully briefed and ready for consideration by this Court.


A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") prescribes the standards that govern this Court's substantive review of Davis's current habeas corpus claim. The relevant portion of AEDPA, 28 U.S.C. § 2254(d), provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court discussed this provision and how it should be applied by the federal district courts. The Supreme Court recognized that

a state-court decision can be "contrary to" this Court's clearly established precedent in two ways. First, a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.

Id. at 405. Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The Supreme Court also explained that

A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable.... [A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Id. at 409, 411.

A writ of habeas corpus may also be available where the state courts' resolution of a prisoner's criminal case is "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)(2). In other words, habeas relief can be granted if the conviction is based on findings of fact that could not reasonably be derived from the state court evidentiary record. When reviewing a state court decision, however, "a federal court... presumes that the state court's factual determinations are correct, " and that "presumption may be rebutted only by clear and convincing evidence." Lee v. Gammon, 222 F.3d 441, 442 (8th Cir. 2000). In addition, 28 U.S.C. § 2254(e)(1) provides that

[i]n a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

Needless to say, a federal district court is not allowed to conduct its own de novo review of a prisoner's constitutional claims. Yarborough v. Alvarado, 541 U.S. 652, 665 (2004) ("We cannot grant relief under AEDPA by conducting our own independent inquiry into whether the state court was correct as a de novo matter."). "AEDPA... imposes a highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010) (citations and quotations omitted). Habeas relief cannot be granted unless the petitioner has identified and substantiated a specific error committed by the state courts. Moreover, the petitioner must show that the state courts committed the type of error that is actionable under § 2254(d), as that statute has been interpreted by the Supreme Court in Williams. The petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011).

B. Claims for Relief

1. Ground One

Davis first contends that two potential defense witnesses - Plinio Portillo Cruz and Norman Mejia Arita - were deported prior to trial, thereby depriving Davis of his ability to call those individuals to testify on his behalf. According to Davis, Cruz and Arita "could have cleared me of this crime by telling the courts that there wasn't a robbery, and that I didn't shoot Mr. Calix." Petition at 5. Davis argues that the loss of this "material and favorable" evidence prejudiced him at trial, id., and that his constitutional right to compulsory process for obtaining favorable witnesses was violated as a result.[1]

"[T]he Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses: it guarantees him compulsory process for obtaining witnesses in his favor. '" United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (quoting U.S. Const. amend. VI). The United States Supreme Court has found a violation of the Sixth Amendment's compulsory-process clause results only "when the defendant was arbitrarily deprived of testimony [that] would have been relevant and material, and... vital to the defense." Id. (quoting Washington v. Texas, 388 U.S. 14, 16 (1967)). "This language suggests that respondent cannot establish a violation of his constitutional right to compulsory process merely by showing that deportation of [potential witnesses] deprived him of their testimony. He must at least make some plausible showing of how their testimony would have been both material and favorable to his defense." Id.

The Minnesota Supreme Court found, in a summary fashion, that Davis's compulsoryprocess claim "lack[ed] merit." Davis, 820 N.W.2d at 539. This Court concludes that the Minnesota Supreme Court's decision was neither (1) "contrary to, or involved an unreasonable application of, clearly established Federal law" nor (2) "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); James v. Bowersox, 187 F.3d 866, 869 (8th Cir. 1999) ("The summary nature of the [state-court] opinion does not affect this standard of review."). Simply put, Davis has not pointed to evidence showing that Cruz or Arita would have provided material and favorable testimony on his behalf. Although Davis speculates that the two men would have testified that "there wasn't a robbery, and that I didn't shoot Mr. Calix, " App'x at 1483, [2] Davis cannot point to any specific basis for believing that Cruz or Arita would have offered such testimony at trial. For example, neither of the statements offered by Cruz and Arita to the police exculpated Davis in any way. See Pet. Exs. 18, 28 [ECF No. 14]. In fact, those statements tended to inculpate Davis insofar as Cruz and Arita placed an individual with Davis's physical features at the scene of the ...

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