# Davis v. Secretary, Department of Corrections(Sarasota)

> District Court, M.D. Florida · April 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10115818

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 22, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10115818

## How later opinions describe it (automated extraction)

- noting that “constitutional challenges to the AEDPA amendments have been rejected by majority opinions in the Fourth, Seventh, and Ninth Circuits”
- holding that Oklahoma’s DNA database statute “do[es] not run afoul of the Ex Post Facto Clause” because it has “a legitimate, non-penal legislative purpose”
- finding that South Carolina’s “DNA- sample requirement” does “not violate the Ex Post Facto Clause” because it is “not penal in nature”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ROBERT L. DAVIS,

Petitioner,

v. Case No. 8:21-cv-1517-CEH-TGW

SECRETARY, DEPARTMENT
OF CORRECTIONS,

Respondent.
/

ORDER

Robert L. Davis, a Florida prisoner, timely filed a pro se petition for writ of
habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) Respondent filed a response opposing
the petition. (Doc. 8) Davis filed a reply. (Doc. 18.) Upon consideration, the petition
will be DENIED.
I. Background
This case arises from Davis’s burglary of West Florida Supply Company, a
cleaning supply business in Sarasota, Florida. (Doc. 9-3, Ex. 1a, at 115-16.) On a
Monday morning in June 2018, Diane Schiessle, the president and owner of the
business, arrived at work. (Id. at 118.) An employee standing outside the building
“yelled to [her] that the window was broken into.” (Id.) Schiessle went inside and
observed dried blood “all over the counter” by the broken window. (Id.) She called 911
and did “a walk-through with law enforcement to assess the damage.” (Id. at 119).
During the walk-through, Schiessle noticed that several items were missing—
specifically, two cell phones, a projector, a radio, and a printer. (Id.) Outside the
building, police discovered that the business’s phone and cable lines had been cut. (Id.

at 153-54, 157.)
Law enforcement collected a sample of the blood on the counter and ultimately
ran it through CODIS, a DNA database. (Id. at 307.) The blood sample matched a
profile belonging to Davis. (Id. at 307-08.) Police interviewed Davis and asked him

why his “blood was inside of West Florida Supply Company.” (Id. at 211.) Davis
responded that “there was a possibility that he visited the building and he bleeds
easily.” (Id.) Law enforcement obtained a buccal swab from Davis and compared it to
the DNA sample from the blood on the counter. (Id. at 211-13, 281-82.) The swab
matched the sample. (Id. at 282.) According to the technician who conducted the test,

“the observed DNA profile [was] greater than 700 billion times more likely to occur if
it originated from Robert Davis than if it originated from an unrelated unknown
individual.” (Id. at 294.)
Davis was charged with burglary of an unoccupied structure. (Doc. 9-2, Ex. 1,
at 32.) Shortly thereafter, he moved to terminate his public defender and proceed pro

se. (Id. at 58-59.) The court conducted a Faretta1 inquiry, determined that Davis “was
competent to waive counsel and that [his] waiver was both knowing and intelligent,”
and allowed him to represent himself. (Id. at 58.) Following a jury trial, Davis was

1 Faretta v. California, 422 U.S. 806 (1975).
convicted of burglary of an unoccupied structure. (Id. at 303.) After finding that Davis
qualified as a habitual felony offender, the state trial court sentenced him to five years’
imprisonment. (Id. at 624.) The state appellate court per curiam affirmed the conviction

and sentence. (Doc. 9-3, Ex. 5.) This federal habeas petition followed. (Doc. 1.)
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this
proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

can be granted only if a petitioner is in custody “in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides
that federal habeas relief cannot be granted on a claim adjudicated on the merits in
state court unless the state court’s adjudication:
(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.

A decision is “contrary to” clearly established federal law “if the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than [the Supreme] Court has on
a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
A decision involves an “unreasonable application” of clearly established federal law
“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.
AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell v. Cone, 535
U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s
application of clearly established federal law is objectively unreasonable, and . . . an
unreasonable application is different from an incorrect one.” Id. at 694; see also

Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas
corpus from a federal court, a state prisoner 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.”).

The state appellate court affirmed Davis’s conviction and sentence without
discussion. This decision warrants deference under § 2254(d)(1) because “the
summary nature of a state court’s decision does not lessen the deference that it is due.”
Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). When a state appellate court
issues a silent affirmance, “the federal court should ‘look through’ the unexplained

decision to the last related state-court decision that does provide a relevant rationale”
and “presume that the unexplained decision adopted the same reasoning.” Wilson v.
Sellers, 138 S. Ct. 1188, 1192 (2018).
III. Discussion
A. Ground One

Davis argues that the application of Florida’s DNA database statute to him
violated the ex post facto clause of the federal constitution. (Doc. 1 at 5, 9.) The DNA
database statute, codified at Fla. Stat. § 943.325, “requires any person convicted of
certain enumerated offenses to submit to DNA testing.” M.S. v. State, 987 So. 2d 774,
777 (Fla. 4th DCA 2008). Davis alleges that he was convicted of burglary in 1998.

(Doc. 1 at 5.) At the time, Florida law did not require persons convicted of burglary to
submit blood specimens for inclusion in the statewide DNA database. See Fla. Stat. §
943.325(1)(a) (listing offenses for which submission of a “specimen[] of blood” is
required) (1998). In July 2000, the DNA database statute was amended to require
prisoners “previously convicted” of burglary to submit blood samples for DNA

analysis. Fla. Stat. § 943.325(1)(a) (2000). In March 2001, Davis was serving a prison
sentence for “uttering a forged instrument,” which was not a qualifying offense under
the DNA database statute. (Doc. 20 at 5.) Based on his 1998 conviction for burglary,
however, correctional officials obtained a sample of Davis’s blood and entered it into
CODIS. (Id.) Years later, law enforcement identified Davis as a suspect in the burglary

of West Florida Supply Company based on a match between his CODIS profile and
the blood from the scene.
Davis argues that his compelled submission of a DNA sample in March 2001
violated the ex post facto clause because, at the time of his 1998 burglary conviction,
the DNA database statute did not apply to him. (Id. at 9.) Thus, according to Davis,
he pled guilty to burglary in 1998 without any “notice” that his conviction would one
day allow the State to obtain a blood specimen from him. (Id.) The state trial court
rejected Davis’s ex post facto argument, holding that all “three [of his] challenges to

the admission of the DNA analysis” were “without legal merit.”2 (Doc. 9-2, Ex. 1, at
99.) The trial court did not elaborate on its reasoning for rejecting the ex post facto
challenge. (Id.) Following his conviction, Davis raised the issue on direct appeal, (Doc.
9-3, Ex. 2, at 10-20), and the state appellate court affirmed without a written opinion,
(Doc. 9-3, Ex. 5).

Because the state court rejected the ex post facto claim without providing an
explanation, Davis must show that “there was no reasonable basis for the state court
to deny relief.” Richter, 562 U.S. at 98. He cannot meet this burden.
The ex post facto clause bars the enactment of “any law which imposes a

punishment for an act which was not punishable at the time it was committed; or
imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S.
24, 28 (1981). In other words, the clause prohibits “retroactive punishment.” Smith v.
Doe, 538 U.S. 84, 92 (2003). An “ex post facto inquiry . . . [focuses] not on whether a
legislative change produces some ambiguous sort of ‘disadvantage,’ . . . but on whether

any such change alters the definition of criminal conduct or increases the penalty by
which a crime is punishable.” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995).

2 Davis also argued that the admission of the DNA evidence violated his Fourth Amendment rights
and his right to due process. (Doc. 9-2, Ex. 1, at 71-84.)
In addition, “the ex post facto bar applies only to criminal laws, not to civil regulatory
regimes.” United States v. W.B.H., 664 F.3d 848, 852 (11th Cir. 2011) (citing Kansas v.
Hendricks, 521 U.S. 346, 369 (1997)).

The state court reasonably concluded that Davis’s ex post facto argument lacked
merit. In Morrow v. State, Florida’s Fourth District Court of Appeal rejected a similar
ex post facto challenge to the DNA database statute. 914 So. 2d 1085, 1085 (Fla. 4th
DCA 2005). There, the Department of Corrections sought to “compel [the] defendant

to provide blood and saliva samples for DNA testing” based on a thirteen-year-old
conviction for “false imprisonment with a deadly weapon.” Id. The defendant argued
that “the retroactive application of the statute violate[d] the ex post facto clause
because he was without notice that he would be subject to this kind of provision in the
future.” Id. The court rejected this argument, holding that “the application of the

statute” in these circumstances was “not an ex post facto violation.” Id. at 1086. The
court explained that “[a]lthough [§] 943.325 is retrospective in its effect, it does not
alter the elements of [the defendant’s] criminal conduct or increase the penalty for his
crime.” Id.
Morrow is not an outlier. To the contrary, “[c]ourts of other jurisdictions that

have addressed this issue have all arrived at the same conclusion, namely that statutes
requiring convicts to submit DNA samples do not contravene the ex post facto clause,
even when the underlying convictions precede the DNA collection statutes.” State v.
Banks, 146 A.3d 1, 14-15 (Conn. 2016) (collecting cases); see also, e.g., In re DNA Ex Post
Facto Issues, 561 F.3d 294, 299 (4th Cir. 2009) (finding that South Carolina’s “DNA-
sample requirement” does “not violate the Ex Post Facto Clause” because it is “not
penal in nature”); Shaffer v. Saffle, 148 F.3d 1180, 1182 (10th Cir. 1998) (holding that

Oklahoma’s DNA database statute “do[es] not run afoul of the Ex Post Facto Clause”
because it has “a legitimate, non-penal legislative purpose”); Gilbert v. Peters, 55 F.3d
237, 238-39 (7th Cir. 1995) (“Both federal and state courts have uniformly concluded
that statutes which authorize collection of blood specimens to assist in law

enforcement are not penal in nature.”). These courts reason that DNA database
statutes are designed “not to punish the individuals submitting the samples[,] but
rather to establish a data bank that will aid future law enforcement and other agencies
in identifying individuals.” State v. Bain, No. 2008-286, 2009 WL 170109, at *1 (Vt.
Jan. 14, 2009).

The same is true of Florida’s DNA database statute. See Fla. Stat. §
943.325(1)(a) (stating that “it is in the best interests of the citizens of this state to
establish a statewide DNA database” in order to “assist federal, state, and local
criminal justice and law enforcement agencies in the identification and detection of
individuals in criminal investigations and the identification and location of missing

and unidentified persons”). Moreover, while “requiring the submission of DNA
samples may be viewed as disadvantageous or burdensome, application of the DNA
database statute to persons based on conduct that preceded enactment of the statute
does not violate the ex post facto clause because the statute neither alters the definition
of, nor increases the punishment for, a crime.” Bain, 2009 WL 170109, at *1.
For these reasons, the state court reasonably concluded that the application of
the DNA database statute to Davis did not violate the ex post facto clause.
Accordingly, Ground One is denied.

B. Ground Two
Davis contends that the trial court violated his right to “a fair trial” by
preventing him from “adequately question[ing] the jury” during voir dire “about their
feelings” concerning “defendants who cho[o]se to represent themselves.” (Doc. 1 at 7,

9.) Before voir dire, the court informed prospective jurors that Davis did “not have an
attorney with him.” (Doc. 9-3, Ex. 1a, at 26.) The court explained that Davis had “the
right to be represented by an attorney or to represent himself in this trial, as do all
criminal defendants in this country.” (Id.) The court then stated that Davis had
“specifically exercised his constitutional right to act as his own attorney,” and that

“[t]his decision should not affect your consideration of this case in any manner
whatsoever.” (Id. at 26-27.)
During voir dire, a prospective juror asked the court whether Davis had “waived
his right to an attorney.” (Id. at 44.) The court answered that he had. (Id.) The
prospective juror then inquired whether Davis had been “informed that he has a right

to have an attorney.” (Id. at 44-45.) The court responded:
Absolutely. And he chose, which is his absolute right, he was afforded
court-appointed counsel and he chose to not avail himself of that, which
is totally his right, and he has decided to represent himself. I had several
discussions with him and he voluntarily waived his right to an attorney,
and the jury cannot be influenced in any way by that decision on his part
and it’s his absolute right to do that. Do you think that would have any
effect on your ability to be a fair juror in this case? And just so you know,
in these situations, and I want to stress over and over again, that is his
absolute right, he will be bound by the same rules and requirements and
he’s aware of that. But again, that’s his absolute right and the jury cannot
be influenced in any negative way about that. Are you comfortable with
that?

(Id. at 45.) The prospective juror said, “Yes, as long as he’s been fully informed.” (Id.)
Davis’s decision to represent himself did not come up again until he began to
question prospective jurors. At that point, Davis attempted to explain to the jury pool
why he had chosen to proceed pro se:
MR. DAVIS: One of the reasons I’m representing myself is because I did
have an attorney at one time, the public defender. I don’t have any money
to hire a lawyer, and my experience with the public defender was not
good. I was very scared. And evaluating the circumstances, I found out
since I do have a little bit of education and I have a little confidence
because—

[THE STATE]: Objection.

MR. DAVIS: What ground?

THE COURT: What’s the legal basis?

[THE STATE]: Argumentative to the jury.

THE COURT: I’ll sustain the objection.

MR. DAVIS: Again, one of the reasons why I represent myself was my
bad experiences with the Public Defender’s Office—

[THE STATE]: Objection, same grounds.

THE COURT: Mr. Davis, the panel has been told you do have the
absolute right to represent yourself. You made that decision. I think that’s
as far as we’ll proceed with that.

MR. DAVIS: Your Honor, it doesn’t have anything to do with the case
and—
THE COURT: It’s an issue of relevance, so I sustained the objection. So
please proceed.

(Id. at 73-74.)
In his federal habeas petition, Davis argues that the trial court barred him from
“lay[ing] the foundation relating to [his] decision of self-representation.” (Doc. 1 at 9.)
This allegedly made it impossible for Davis to “adequately question” prospective
jurors about their “feelings” regarding pro se defendants. (Id.) Respondent maintains
that Ground Two is unexhausted and procedurally defaulted. (Doc. 8 at 25-26.) The
Court need not reach that issue because, even under de novo review, Davis’s claim fails
on the merits. See Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“[A] federal

court may skip over the procedural default analysis if a claim would fail on the merits
in any event.”).
The federal constitution “guarantees both criminal and civil litigants a right to
an impartial jury,” and “voir dire can be an essential means of protecting this right.”
Warger v. Shauers, 574 U.S. 40, 50 (2014). “Without an adequate voir dire the trial

judge’s responsibility to remove prospective jurors who will not be able impartially to
follow the court’s instructions and evaluate the evidence cannot be fulfilled.” Morgan
v. Illinois, 504 U.S. 719, 729-30 (1992). Thus, “[a]lthough the conduct of voir dire is
largely left to the sound discretion of the trial court, the [] court’s voir dire must at least
provide reasonable assurance that prejudice will be discovered if present.” United States

v. Hill, 643 F.3d 807, 836 (11th Cir. 2011). In other words, the court must allow
sufficient inquiry “to ascertain whether the juror has any bias, opinion, or prejudice
that would affect or control the fair determination by him of the issues to be tried.”
Mu’Min v. Virginia, 500 U.S. 415, 422 (1991).
The trial court did not improperly limit Davis’s voir dire examination. Before

voir dire, the court told prospective jurors that Davis had “specifically exercised his
constitutional right to act as his own attorney,” and that “[t]his decision should not
affect your consideration of this case in any manner whatsoever.” (Doc. 9-3, Ex. 1a,
at 26-27.) During voir dire, one of the prospective jurors asked whether Davis had been

“informed” of his right to an attorney. (Id. at 44-45.) The court answered in the
affirmative and reiterated that (1) Davis had “voluntarily waived his right to an
attorney” and “decided to represent himself,” and (2) “the jury cannot be influenced
in any way by that decision on his part.” (Id. at 45.) The court then confirmed that the
prospective juror was “comfortable” with Davis’s decision to represent himself. (Id.)

No other member of the jury pool indicated any potential bias against Davis based on
his choice to proceed pro se. Taken as a whole, then, the voir dire inquiry on Davis’s
decision to represent himself “gave reasonable assurance to the parties that any
prejudice of the potential jurors would be discovered.” United States v. Nash, 910 F.2d
749, 753 (11th Cir. 1990).

Davis complains that the court did not allow him to tell prospective jurors why
he chose to represent himself. (Doc. 1 at 9.) But he fails to explain why an account of
that decision was necessary “to ascertain whether [the prospective] juror[s] ha[d] any
bias, opinion, or prejudice that would affect or control the fair determination by [them]
of the issues to be tried.” Mu’Min, 500 U.S. at 422. As noted above, the court informed
the jury pool that Davis had chosen to exercise his right to represent himself, and that
his decision to proceed pro se should not influence the jury in any way. Davis was free
to ask prospective jurors whether, in light of his pro se status, they could fairly and

impartially decide the case. In these circumstances, there is no basis to conclude that
Davis’s inability to explain his decision to represent himself prevented him from
detecting “prospective jurors who [would] not be able impartially to follow the court’s
instructions and evaluate the evidence.” Rosales-Lopez v. United States, 451 U.S. 182,

188 (1981). Accordingly, the court acted well within its “broad discretion to manage
jury selection” when it barred Davis from telling prospective jurors why he chose to
proceed pro se. United States v. Tsarnaev, 595 U.S. 302, 316 (2022).
Ground Two is denied.3
C. Ground Three

Davis contends that the trial court denied him “a fair trial” by refusing to give
the jury a special instruction about their “right to hold on to a verdict belief that is
different than other jurors[’], as long as that belie[f] is one that is beyond a reasonable
doubt.” (Doc. 1 at 8-9.) In accordance with Florida’s standard instructions, the court
informed the jury that (1) “[w]hatever verdict you render must be unanimous, that is,

3 Davis claims that the trial court “tainted the jury panel by accusing [him] of making a reckless
decision to exercise his constitutional right to represent himself.” (Doc. 1 at 7.) That is incorrect. The
court never referred to Davis’s decision to proceed pro se as “reckless,” nor did it make any statements
to the jury pool that could be construed as disparaging that decision. Davis also alleges that the trial
court highlighted his racial background by asking prospective jurors whether “anything about the
nature of the charge itself” suggested that they could not “be completely fair and objective.” (Doc. 18
at 8.) This question plainly does not refer to Davis’s race, and the court did not otherwise refer to his
racial background during the trial.
each juror must agree to the same verdict,” and (2) the “verdict must be unanimous,
that is, all of you must agree to the same verdict.” (Doc. 9-2, Ex. 1, at 297, 299.) During
the charge conference, Davis had requested that the court also read a special

instruction stating that “every juror has a right to stay with what they believe in.” (Doc.
9-3, Ex. 1a, at 235.) Specifically, he asked the court to instruct the jury as follows: “A
unanimous v[e]rdict that is required for a guilty or not guilty verdict, does not
terminate a juror’s choice to hold to a verdict that is different to other jurors as long as
the verdict is based on a belief beyond a reasonable doubt.” (Doc. 9-2, Ex. 1, at 304.)

The court declined to read the special instruction. It explained that (1) the
standard instruction “accurately states the law that the verdict that is eventually
rendered must be unanimous”; (2) “[i]f there is not a unanimous verdict, the jury
would let me know, and then we could go into the deadlock instruction, if deemed
necessary”4; and (3) Davis would be free to maintain during closing argument that

“individual jurors” should “stick to their guns.” (Doc. 9-3, Ex. 1a, at 348.) Davis
subsequently challenged the denial of his special instruction on direct appeal, arguing
that the jury should have been informed of their “right to . . . maintain a verdict that
mi[ght] be different from other jury members.” (Id., Ex. 2, at 25-35.) As noted above,
the state appellate court affirmed Davis’s conviction and sentence without a written

opinion. (Id., Ex. 5.)

4 Florida’s standard “deadlock instruction” states, among other things, that “[w]e are all aware that it
is legally permissible for a jury to disagree.” Fla. Std. Jury Instr. (Crim.) 4.1.
In his federal habeas petition, Davis argues that the standard instructions on
juror unanimity “misle[d] the jury to believe they have to abandon their [] belie[fs] to
satisfy a unanimous decision.” (Doc. 1 at 8.) As a result, Davis contends, the trial

court’s refusal to read his “curative instruction” deprived him of his right to a “fair
trial.” (Id. at 8-9.)
The state court reasonably rejected Davis’s jury-instruction claim.5 “State court
jury instructions ordinarily comprise issues of state law and are not subject to federal
habeas corpus review absent fundamental unfairness.” Jones v. Kemp, 794 F.2d 1536,

1540 (11th Cir. 1986). To establish fundamental unfairness, Davis must demonstrate
that “the [alleged] error so infected the entire trial that the resulting conviction violates
due process.” Jacobs v. Singletary, 952 F.2d 1282, 1290 (11th Cir. 1992). “An omission,
or an incomplete instruction, is less likely to be prejudicial than a misstatement of the

law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977). In such cases, the burden on the
petitioner is “especially heavy.” Id.
Davis cannot meet his burden. At the outset, the trial court’s instructions on
juror unanimity correctly stated the law. “As a state constitutional matter, a criminal
conviction requires a unanimous verdict in Florida.” Robinson v. State, 881 So. 2d 29,

30 (Fla. 1st DCA 2004). Likewise, “the Supreme Court has confirmed that the

5 Respondent argues that Ground Three is unexhausted because Davis failed to alert the trial court to
the federal nature of his claim. (Doc. 8 at 31.) This argument lacks merit. Davis argued before the trial
court that the jury needed to be told that “they still have the right, a Constitutional right, to hold onto
a verdict that is not unanimous.” (Doc. 9-3, Ex. 1a, at 347.) He then suggested that his proposed
instruction followed from “what the United States and the Florida Supreme Court has mandated.”
(Id.) Thus, Davis made “the state court aware that [his claim raised] federal constitutional issues.”
Jimenez v. Fla. Dep’t of Corr., 481 F.3d 1337, 1342 (11th Cir. 2007).
[Federal] Constitution requires a jury to reach a unanimous guilty verdict to convict.”
United States v. Brown, 996 F.3d 1171, 1183 (11th Cir. 2021) (citing Ramos v. Louisiana,
140 S. Ct. 1390, 1397 (2020)). “Because the instructions [on the requirement of juror

unanimity] fairly and correctly stated the law, they did not violate due process.”
Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 690 (11th Cir. 2005) (citation omitted).
Davis likewise fails to establish that he is entitled to relief based on the court’s
refusal to give his special instruction. Davis appears to contend that, because the jurors
in his case were not told they could “stick to their guns,” they were coerced to

“abandon their [] belie[fs] to satisfy a unanimous decision.” (Doc. 1 at 8.) A defendant
“being tried by a jury is entitled to the uncoerced verdict of that body.” Lowenfield v.
Phelps, 484 U.S. 231, 241 (1988). But “[c]oercion does not mean simple pressure to
agree.” Brewster v. Hetzel, 913 F.3d 1042, 1053 (11th Cir. 2019). “Pressure becomes

coercive when the actions of the court result in ‘a minority of the jurors . . . sacrific[ing]
their conscientious scruples for the sake of reaching agreement.’” Id. (quoting Green v.
United States, 309 F.2d 852, 854 (5th Cir. 1962)). Simply put, the court “must not coerce
any juror to give up an honest belief.” United States v. Davis, 779 F.3d 1305, 1312 (11th
Cir. 2015).

The failure to give Davis’s proposed instruction did not “coerce any juror to
give up an honest belief.” Id. “Absent some evidence of coercion or confusion,” the
jury need not be “specifically informed” that “a ‘hung jury’ is an acceptable outcome
where unanimity cannot be reached.” United States v. Wilson, 257 F. App’x 547, 549
(3d Cir. 2007); see also 75A Am. Jur. 2d Trial § 1148 (2024) (noting that a court “may
advise the jury that each member must decide the case for oneself and not abandon an
honest opinion for a unanimous verdict, but such a specific instruction is not

necessary, and a defendant is not entitled to an instruction that a juror may abstain or
not agree”). Indeed, “[t]he mere absence of such an instruction does not in and of itself
suggest coercion.” United States v. Price, 13 F.3d 711, 725 (3d Cir. 1994). Here, there is
no evidence that the jury was deadlocked, and “nothing to suggest that any juror
would believe it was necessary to compromise his/her view of the evidence to allow

the jury to return a unanimous verdict.” Wilson, 257 F. App’x at 549. In short, the
court correctly informed the jury that “[t]he verdict must be unanimous,” but it “did
not suggest, imply, or pressure the jury to return a particular verdict.” Crawford v. Sec’y,
Fla. Dep’t of Corr., No. 3:14-cv-847-BJD-PDB, 2017 WL 1135006, at *13 (M.D. Fla.

Mar. 27, 2017). In these circumstances, the mere refusal to give Davis’s proposed
instruction did not coerce the jury into reaching a verdict. Thus, Ground Three is
denied.
D. Ground Four
Finally, Davis asks this Court to “terminate [] AEDPA review” on his petition

because the statute “is [an] unconstitutional act.” (Doc. 1 at 11.) According to Davis,
AEDPA violates the constitution in two ways: first, it leads to criminal defense
attorneys “no longer [being] professionally held accountable for incompetent action
and/or inaction”; and second, it “prevents the district court from granting [] relief[] if
the U.S. Supreme Court hasn’t entered a favorable ruling under similar
circumstances.” (Id.)
These arguments lack merit. First, even if AEDPA did not apply and Davis’s

claims were subject to de novo review, they would still fail on the merits for the reasons
discussed above. See Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) (“Courts can . . .
deny writs of habeas corpus under § 2254 by engaging in de novo review when it is
unclear whether AEDPA deference applies, because a habeas petitioner will not be

entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.”).
Second, courts have uniformly rejected similar challenges to AEDPA’s
constitutionality, and Davis offers no basis to depart from those decisions. See, e.g.,
Cobb v. Thaler, 682 F.3d 364, 374 (5th Cir. 2012) (“Four circuits have addressed
constitutional challenges to AEDPA similar to [petitioner’s], and each has rejected

that challenge.” (collecting cases)); Evans v. Thompson, 518 F.3d 1, 3 (1st Cir. 2008)
(noting that “constitutional challenges to the AEDPA amendments have been rejected
by majority opinions in the Fourth, Seventh, and Ninth Circuits”); Garey v. United
States, No. 5:03-cr-83-CDL, 2013 WL 6036692, at *3 (M.D. Ga. Nov. 13, 2013)
(“AEDPA has been found constitutional and [petitioner’s] claim [to the contrary] is

without merit.”).
For these reasons, Ground Four is denied.
It is therefore ORDERED that Davis’s petition (Doc. 1) is DENIED. The
CLERK is directed to enter judgment against Davis and to CLOSE this case.
Certificate of Appealability
and Leave to Appeal In Forma Pauperis Denied
It is further ORDERED that Davis is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement
to appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a
certificate of appealability must first issue. Jd. “A certificate of appealability may issue

... only ifthe applicant has made a substantial showing of the denial of a constitutional
right.” Jd. at § 2253(c)(2). To obtain a certificate of appealability, Davis must show
that reasonable jurists would find debatable both (1) the merits of the underlying claims
and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Davis has not made the requisite showing. Finally,
because Davis is not entitled to a certificate of appealability, he is not entitled to appeal
in forma pauperis.
DONE and ORDERED in Tampa, Florida, on April 22, 2024.

Charlene Edwards Honeywell
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10115818. Public record. Not legal advice.