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Davis v. McCollum

United States District Court, W.D. Oklahoma

January 29, 2018

JERRY DON DAVIS, Petitioner,
v.
TRACEY MCCOLLUM, Warden, Respondent.

          ORDER

          DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE

         Before the Court is the Report and Recommendation of Judge Bernard M. Jones (Doc. 15) recommending that the Court deny state prisoner Jerry Don Davis's pro se Petition for a Writ of Habeas Corpus (Doc. 1). Petitioner filed an objection (Doc. 16) and the Court accordingly reviews the Report de novo. Petitioner was convicted of First Degree Manslaughter and Driving While Privilege Revoked following a jury trial in the District Court of Oklahoma County (“State Trial Court”), Case No. CF-2010-6556. Following an unsuccessful appeal and post-conviction proceedings, Petitioner raises three grounds for federal habeas relief. The Petition is hereby DENIED.

         I. Background

         Petitioner and Patricia Ann Dixon suffered a motorcycle accident while traveling in Oklahoma City for a “weekend getaway” on September 17th, 2010. See Petition, Doc. 1, at 5-6. Petitioner concedes he drove with an expired license between Elk City and an Oklahoma City bar. Id. at 6 n.2. He also admits he was legally drunk afterward when the two left that bar. Id. However, he claims Ms. Dixon was driving his motorcycle thereafter when she rear-ended the car in front of them, throwing her from the bike and ultimately killing her. Id. at 6-7.

         The State of Oklahoma charged Petitioner with First Degree Manslaughter and Driving While Privilege Revoked. At his jury trial, the State presented an expert in accident reconstruction, Oklahoma City Police Master Sergeant Jerry Hendrick, who testified that based on the available evidence-Petitioner and Ms. Dixon's injuries, the skid-marks, the speed of the vehicles, where the parties ended up following the accident, and other factors- he believed that Petitioner was driving the motorcycle. See Id. at 7-8; Doc. 9, at 6-7. Defense counsel thoroughly cross-examined Officer Hendrick and Petitioner later testified that Ms. Dixon was the driver. See Trial Transcript, Doc. 9-12, at 18-22, 29-46, 49-59, 138-91, 204- 09. However, defense counsel did not present an expert witness to support this theory.

         During jury deliberations, the jury asked the court by note, “What do we do in the event of a hung jury on only one count? We have come to a verdict only on the 2nd count.” Appellant Brief, Doc. 9-1, at 5. The court responded in writing, “Please continue to deliberate.” Id. The record does not reflect whether the court consulted with either party's counsel or brought the jury into open court before responding. The jury continued deliberations and found Petitioner guilty of both counts. The court thereafter sentenced him to twenty years imprisonment on the manslaughter charge, running concurrent with one year imprisonment for driving with revoked privilege.

         Petitioner filed an unsuccessful direct appeal, asserting that the court erred in violating 22 Okla. Stat. § 894, which requires notice to both parties when the court answers jury questions during deliberations. See Oklahoma Court of Criminal Appeals (“OCCA”) Summary Opinion, Doc. 9-4. Petitioner then sought state post-conviction relief on two grounds. First, trial counsel was ineffective for failure to request appointment of an expert accident reconstruction witness and failure to obtain such a witness. Second, appellate counsel, who was different from Petitioner's trial counsel, was ineffective for failure to assert ineffective assistance of trial counsel. The State Trial Court denied post-conviction relief (Doc. 9-7), and the OCCA denied Petitioner's post-conviction appeal (Doc. 9-11).

         II. Habeas Relief Under 28 U.S.C. § 2254

         On November 25, 2016, Petitioner filed three claims for federal habeas relief pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254:

(1) The State Trial Court violated Petitioner's Fifth, Sixth, and Fourteenth Amendment rights when it “coercive[ly]” responded “Please continue to deliberate” to the jury's question without notification or the presence of counsel. The OCCA rejected this claim on state grounds on direct appeal.
(2) Appellate counsel denied Petitioner his Sixth Amendment right to effective assistance by failing to raise ineffective assistance of trial counsel for not obtaining an expert accident reconstruction witness. The OCCA rejected this claim on the merits in post-conviction proceedings.
(3) Trial counsel denied Petitioner his Sixth Amendment right to effective assistance by failing to request or obtain an expert accident reconstruction witness. The OCCA rejected the claim based on a procedural bar, that Petitioner failed to raise the claim on direct appeal.

See Doc. 1, at 14.

         AEDPA applies a highly deferential standard of review to federal habeas claims previously “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d); see Burt v. Titlow, 134 S.Ct. 10, 16 (2013). The Court may grant relief only if Petitioner shows that the State Trial Court or OCCA adjudication “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 “was based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1), (2); see Owens v. Trammell, 792 F.3d 1234, 1242 (10th Cir. 2015) (“It is the petitioner's burden to make this showing . . . .”). “‘If this standard is difficult to meet'-and it is-‘that is because it was meant to be.'” Burt, 134 S.Ct. at 16 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).

         A state court decision is “contrary to . . . clearly established Federal law” under § 2254(d)(1) if it “‘applies a rule that contradicts the governing law set forth in Supreme Court cases' or ‘confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a [different] result.” 28 U.S.C. § 2254(d); Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016) (quoting Fairchild v. Trammell, 784 F.3d 702, 710 (10th Cir. 2015)). As AEDPA's text clearly indicates, “it is not the province of a federal habeas court to re-examine state court determinations on state law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Nor can the Court “extract clearly established [federal] law from the general legal principles developed in factually distinct contexts”; Supreme Court holdings “must be construed narrowly.” House v. Hatch, 527 F.3d 1010, ...


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