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Davis v. Dowling

United States District Court, N.D. Oklahoma

September 18, 2017

DARREN TITUS DAVIS, SR., Petitioner,
v.
JANET DOWLING, Warden, Respondent.

          OPINION AND ORDER

          JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE.

         Before the Court is the amended petition for writ of habeas corpus (Doc. 10) filed by Petitioner, a state inmate appearing pro se. Petitioner challenges his convictions entered in Tulsa County District Court, Case No. CF-2010-3576. Respondent filed a response (Doc. 12), and provided the state court records necessary for adjudication of Petitioner's claims (Docs. 12, 13). Petitioner filed a reply (Doc. 14). On August 23, 2016, Petitioner commenced a new habeas corpus action by filing a second petition in Case No. 16-CV-556-JED-PJC. In his second petition, Petitioner challenges his convictions entered in Tulsa County District Court, Case No. CF-2010-3576. By Order filed August 26, 2016 (Doc. 15), the Court determined that Petitioner could have raised his claims in a single habeas corpus action and consolidated the two habeas corpus actions. The second petition has now been filed of record in this case. See Doc. 18. For the reasons discussed below, the amended petition for writ of habeas corpus is denied. In addition, Petitioner's request to amend his petition to add the claim raised in the second petition is denied because the new claim is time barred.

         BACKGROUND

         In February 2010, T.C., the fourteen-year-old stepdaughter of Petitioner Darren Titus Davis, Sr., claimed that Petitioner had sexually abused her at their apartment located in Tulsa, Oklahoma. During the incidents of abuse, T.C.'s younger brothers, ages 8 and 9, were present. Specifically, T.C. alleged that between Thanksgiving and Christmas, 2009, Petitioner rubbed his penis on her. During this incident, Petitioner held T.C. down while he and T.C.'s younger brothers tickled T.C. On a separate occasion in the same time frame, T.C. claimed that Petitioner unbuttoned her pants, put his hand down her pants, and inserted his finger in her vagina. During this second incident, the younger brothers were sitting on the floor of their mother's bedroom playing a PlayStation III video game while on the bed in the same bedroom, Petitioner sexually abused T.C.

         Following an investigation, Petitioner was charged with two (2) counts of Child Sexual Abuse in Tulsa County District Court, Case No. CF-2010-3576. Petitioner proceeded to be tried by a jury. At the conclusion of trial, held February 28 and 29, 2012, the jury found Petitioner guilty as charged. On April 25, 2012, the trial judge sentenced Petitioner, in accordance with the jury's recommendations, to fifteen (15) years imprisonment (Count 1) and thirty (30) years imprisonment (Count 2), and ordered the sentences to be served consecutively. See Doc. 13-5 at 3. At trial, attorneys Jessica Battson and J. Brian Rayl represented Petitioner.

         Petitioner perfected a direct appeal in the Oklahoma Court of Criminal Appeals (OCCA).

         Represented by attorney Richard Couch, Petitioner raised three (3) propositions of error, as follows:

Proposition 1:

The trial court abused its discretion in permitting the State to introduce propensity evidence of other alleged child molestation by Appellant.

Proposition 2:

Prosecutorial misconduct denied the Appellant a fair trial.

Proposition 3:

The Appellant was deprived of effective assistance of counsel.

         (Doc. 12-1). In an unpublished summary opinion, entered September 26, 2013, in Case No. F-2012-383, the OCCA affirmed the trial court's judgment and sentence. See Doc. 12-3. Petitioner did not seek post-conviction relief in the state courts prior to filing his federal habeas corpus petition.

         On December 24, 2014, Petitioner filed his original petition for writ of habeas corpus (Doc. 1). He identified three (3) grounds of error. The headings for the habeas grounds of error matched the headings for the propositions of error presented to the OCCA on direct appeal. Petitioner attached to his petition the OCCA's unpublished summary opinion affirming the Judgment and Sentence of the district court, as well as two handwritten motions, a motion to dismiss and a motion for a new trial, both captioned in Tulsa County District Court, Case No. CF-2010-3576.

         In response to the original petition, Respondent filed a motion to dismiss, arguing that the petition should be dismissed without prejudice as a “mixed petition” containing both exhausted and unexhausted claims. See Doc. 6. In an Opinion and Order filed May 28, 2015 (Doc. 9), the Court determined that the original petition was a “mixed petition.” Id. at 4. Petitioner was afforded the opportunity to file an amended petition to delete the unexhausted claims as identified by the Court. Id. at 6. The Court specifically advised Petitioner that the one-year statute of limitations applicable to habeas petitions had expired on December 27, 2014. Id. at 5-6 n.3.

         On June 25, 2015, Petitioner filed his amended petition (Doc. 10). In response to the amended petition, Respondent asserts that, while Petitioner had deleted one of his unexhausted claims, Petitioner's claim of ineffective assistance of counsel continues to include unexhausted claims. See Doc. 12 at 18-19. Respondent also informed the Court that Petitioner had filed an application for post-conviction relief in the state district court and that the application remained pending. Id. at 1 ¶ 3. On August 10, 2015, Petitioner filed a reply to the response (Doc. 24), but fails to acknowledge Respondent's argument that part of his claim of ineffective assistance remains unexhausted.

         On August 23, 2016, more than one year after filing his reply in this case, Petitioner filed a second petition for writ of habeas corpus in N.D. Okla. Case No. 16-CV-556-JED-PJC. By Order filed August 26, 2016 (Doc. 15), the two pending habeas cases were consolidated and a copy of the second petition has now been filed of record in this case, see Doc. 18. In his second petition, Petitioner raises one claim:

Ground 1: The state court's rejection of the petitioner's claim that he was denied the effective assistance of appellate counsel, was contrary to, or an unreasonable application of, clearly established federal law.

Id. Recognizing the applicability of the one-year limitations period, Petitioner asserts the following argument:

Petitioner's trial counsel did not investigate and pursue evidence that would have proven that he was actually innocent of the crimes. This evidence was the victim's two (2) brothers, and it would have shown that no crime was committed. Therefore, the one-year statute of limitations is overcome. McQuiggin v. Perkins, 133 S.Ct. 1924 (20___).

Id. at 6.

         ANALYSIS

         A. Exhaustion/Evidentiary hearing

         As an initial matter, the Court must determine whether Petitioner meets the exhaustion requirement of 28 U.S.C. § 2254(b). Rose v. Lundy, 455 U.S. 509, 510 (1982). With the exception of the part of his ineffective assistance of trial counsel claim alleging that counsel failed to “investigate, consult, inform” with regard to a witness's testimony, Petitioner presented the claims raised in the amended petition to the OCCA on direct appeal. As stated above, Petitioner does not acknowledge Respondent's position that a portion of his claim is unexhausted. However, because Petitioner has now utilized post-conviction relief procedures to exhaust his claim of ineffective assistance of appellate counsel and failed to raise his unexhausted claim of ineffective assistance of trial counsel, the Court finds an absence of available State corrective process, see 28 U.S.C. § 2254(b)(1)(B), and the claim is not barred by the exhaustion requirement. Nonetheless, as discussed in Part C, below, habeas corpus relief on the unexhausted claim is denied based on an anticipatory procedural bar. The claim of ineffective assistance of appellate counsel raised in the second petition was presented to the OCCA on post-conviction appeal and is exhausted.

         The Court also finds that Petitioner is not entitled to an evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170, 184-85 (2011); Williams v. Taylor, 529 U.S. 420 (2000).

         B. New claim of ineffective assistance of appellate counsel is time barred

         In his second petition, Petitioner alleges that “his appellate counsel was ineffective for failing to raise the claim of ineffective assistance of trial counsel for trial counsel's failure to use the victim's two brothers' testimony at trial to impeach the victim on the central issue of Petitioner's guilt.” (Doc. 18). Because Petitioner does not raise an ineffective assistance of appellate counsel claim in his amended petition for writ of habeas corpus, the Court shall determine ...


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