Opposition Brief — Don William Davis, Petitioner v. Arkansas

NO. 17-9207

IN THE SUPREME COURT OF THE UNITED STATES

DON WILLIAM DAVIS,

Petitioner,

Vv.

STATE OF ARKANSAS,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Arkansas

BRIEF IN OPPOSITION FOR RESPONDENT

STATE OF ARKANSAS

LESLIE RUTLEDGE

Arkansas Attorney General

KELLY FIELDS

Senior Assistant Attorney General

Counsel of Record

OFFICE OF THE ATTORNEY GENERAL

323 Center Street, Suite 200

Little Rock, Arkansas 72201

kelly. fields @arkansasag.gov

(501) 682-8068

CAPITAL CASE

QUESTION PRESENTED

For the second time, Don William Davis petitions for a writ of

certiorari to review a criminal judgment that the Supreme Court of

Arkansas affirmed on direct review in 1993. This Court considered

Davis's first petition in 1994, and declined to review his claim that due

process, as construed in Ake v. Oklahoma, 470 U.S. 68 (1986), had entitled

him to funds to hire an independent psychiatric expert despite the

evaluations and assistance he had received from multiple, neutral

experts provided by the state.

Following the conclusion of state and federal collateral review in

2006, and on the eve of his fifth scheduled execution in 27 years, Davis,

in 2017, filed a state-law motion to recall the mandate in his 1993 direct

appeal. He averred that this Court, in McWilliams v. Dunn, 137 S.Ct. 1790

(2017), would issue a decision demonstrating that the Arkansas

Supreme Court had erred in 1993 when it rejected his due process claim

and affirmed his criminal judgment.

The Arkansas Supreme Court denied Davis’s motion, concluding

that the decision in McWilliams did not present the kind of extraordinary

circumstances that, under Arkansas law, warranted discretionary recall

of its mandate. Nevertheless, Davis erroneously uses the decision to

once again ask this Court to consider his Ake claim, which has been

repeatedly rejected in multiple courts, both state and federal, in the last

quarter of a century. He presents the question, simply:

Does an examination performed by a state-hospital doctor satisfy

the requirements of Ake v. Oklahoma?

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED ooo eceeeceseeeeeeseseseeseseesesessesenecacsececsessessseseess i

TABLE OF CONTENTS... ccc ccccccsesseseeeeseseeeseseeseeeseseeecsessssesessesesesseetenes ii

TABLE OF AUTHORITIES 0.0. cececsceeseeseseeeeeseeeescenseseessseeesassesenecses ili

JURISDICTION oe ceeeeeeeeseesceeseeseseeeeseseeessesecseseseesesecseeecsesecessesesasseees 1

STATEMENT OF THE CASE oo... ccecccecsesssseseeseseescsececseesesecsecsesecseeesssensas 1

REASONS FOR DENYING THE WRIT:

I. Jurisdiction is lacking because the petition presents no final

judgment for review, and the challenged decision resolved no

federal QUeStION 0... eeceseeseseseeteeeseseseceseseseseseneaeseseseseseensneseaeseaeaaes 10

I]. The petition neither demonstrates a meritorious constitutional

claim, nor presents an adequate vehicle for addressing the

QUESTION PLESENte” oo... eeccseseeseteseteeeceeeetscteeseseescseesesseeseesetecseseees 17

CONCLUSION oe eccceeeeeeneeseseneeseseeseseneesesesseseeeesessesesessesecacstessseseeees 21

il

TABLE OF AUTHORITIES

CASES PAGE

Ake v. Oklahoma, 470 U.S. 68 (1986) .....cccccccsesesesscssetecssscscsessenesscsesessees 14,19

Barclay v. Farm Credit Services, 8 S.W.3d 517 (Ark. 2000)......cccccssessseseeeees 13

Bateman v. Arizona, 429 U.S. 1402 (1976) (Rehnquist, J., in chambers)..... 10

Berman v. United States, 302 U.S. 211 (1937) .eecceecseteteesesesesesesessescsesesens 11

Davis v. Norris, 547 U.S. 1067 (2006)... eecececcseecesesesesseseeesesesesssecsesesessenscsesees 7

Davis v. Norris, 423 F.3d 868 (8th Cir. 2005)... eessesesesscessseseseneees passim

Davis v. State, 863 S.W.2d 259 (Ark. 1993),

cert. denied, 511 U.S. 1026 (1994) oo. ceeececeseeteesseseneseteseestensesnaees 12,6

Davis v. State, 44 S.W.3d 726 (Ark. 2001) ....eecccscceeeseeecsesesecseseseseeeeees 3,7,16

Davis v. State, 539 S.W.3d 565 (Ark. 2018) oc cccceceeseeseeeseseeescseeees passim

Davis v. State, No. CR-92-1385, Mandate (Ark. Apr. 6, 1994)... ees 6

Davis v. State, No. CR-00-528, Mandate (Ark. June 19, 2001)... eee 7

Davis v. State, Nos. CR-92-1385 & CR-00-528, Motion to Recall the

Mandate and for Stay of Execution (Ark. Apr. 12, 2017) ..cccecccceseeeeeees 8

Davis v. State, Nos. CR-92-1385 & CR-00-528, Formal Order (Ark. Apr.

V7, 2017)... ceececccscccccececseeeseseseesesssesacenssseseaeseasaenensseaseceesesnsnseseseseeceeseseaesesentass 8,9

Jimenez v. Quarterman, 555 U.S. 113 (2009)... eccceeeeseteteesesesesetesetsesesees 12

iil

McGehee, Davis, et al. v. Hutchinson, 854 F.3d 488 (8th Cir.)(en banc)

(per curiam), cert. denied, ___ U.S. ___, 137 S.Ct. 1275 (2017). ceceeseereeeeeees 7

McWilliams v. Dunn, ___ U.S. __, 137 S.Ct. 1790 (2017)... ceceececeeeeees 18,19

Nooner & Davis v. Norris, 491 F.3d 804 (8th Cir. 2007),

cert, denied, 552 U.S. 1201 (2008) ......eeeeeseeeeseseeeetetessessesesestseenenees 7

Nooner v. State, 438 S.W.3d 233 (Ark. 2014) .o.ceecceccceeseseseesesesetetseetseees 13,14

Republic Natural Gas Co. v. Oklahoma, 332 U.S. 62 (1948)...cccccccsesseseeeenees 10

Robbins v. State, 114 S.W.3d 217 (Ark. 2008) oo. cccccccccssesecesscsssssescseseseseeess 13

Williams v. State, 2011 Ark. 534... ccecescccscccesceescessccsscesesesecesscesscsssecssens 14

STATUTES & COURT RULES

28 U.S.C. $1257 (a) woe ccc ecceesescseseneneseneneneneneneeensesestensssesesesesesesesessseeeseees 1,11

Ark. Code Ann. § 5-2-305 (a)&(b) (Repl. 1991) .ooceccccecesesescessssseeestesesees 2

Ark. Sup. Ct. R. 2-3(a), (8) cscsesseseseeseeeeessesesesesesesnsnesescsesesescscscscsceeeeesseteceses 12

iV

JURISDICTION

Although Davis's petition purports to present a due-process claim

under the Fourteenth Amendment to the United States Constitution, this

Court does not have jurisdiction to consider the claim under 28 U.S.C. §

1257(a). The Arkansas Supreme Court’s March 1, 2018, decision denying

Davis's motion to recall the mandate is not a final judgment, and it neither

modified Davis’s 1993 final judgment of conviction, nor reopened it for

another round of review a quarter of a century later. It further decided no

federal question.

STATEMENT OF THE CASE

In 1990, Don Davis shot Jane Daniel in the back of the head at pointblank range after robbing her and burglarizing her home in the middle of

the day in Rogers, Arkansas. Davis v. State, 863 S.W.2d 259, 260-62 (Ark.

1993), cert. denied, 511 U.S. 1026 (1994). Davis left Jane’s body in a basement

storage room where he had shot her, her head face-down in a cardboard

box. Id. She was later discovered by her husband, Richard, when he

returned home from work that evening. Id.

Davis fled the State shortly after the crimes, but was later brought

back for trial. Id. at 261. In 1992, he was convicted and sentenced to death

for Jane Daniel’s murder, and to two 40-year prison terms and $15,000 fines

for the burglary and theft. Id. at 260.

Davis’s Mental-health Evaluations by Neutral Examiners

Pre-trial, Davis was deemed indigent and eventually entered a plea

of not guilty due to mental disease or defect. Davis v. Norris, 423 F.3d 868,

870 (8th Cir. 2005). Under Arkansas law, mere notice that Davis intended

to rely on an insanity defense, without anything more, required the state

trial court to suspend proceedings and order a mental-health evaluation.

See Ark. Code Ann. § 5-2-305 (a)&(b) (Repl. 1991). Davis’s first evaluation

was conducted by a regional psychiatrist, Dr. Travis Jenkins, who

concluded there was no evidence that Davis was incompetent or psychotic

at the time of the evaluation or at the time of the crime and that, while he

had Attention-Deficit Hyperactivity Disorder (ADHD), it did not constitute

a mental disease or defect that would negate responsibility for the crime.

Davis v. State, 539 S.W.3d 565, 567 (Ark. 2018); Davis, 423 F.3d at 870.

Based on Dr. Jenkins’s evaluation, Davis sought a more

comprehensive evaluation by the Arkansas State Hospital (1) to ensure the

report specifically addressed criteria related to Davis’s competency to

stand trial, as required by state law, and (2) to develop mitigating evidence

for any capital sentencing proceedings that might have ensued. Id. at 870-

71. See also Trial Record at 39-42. The prosecuting attorney joined the

request, and the trial court granted it. Davis, 423 F.3d at 870-71. The

evaluating doctors conducted a comprehensive evaluation and concluded

that Davis was competent to stand trial and did not lack the capacity to

conform his conduct to the requirements of law at the time of the crime. Id.

at 871. Their report also referenced details with potential relevance to

mitigation of punishment, including early childhood deprivation, a history

of learning disabilities, and hyperactivity. Davis v. State, 44 S.W.3d 726,

730-31 (Ark. 2001).

Davis’s Requests for, and Waiver of, a Partisan Expert

Davis's counsel subsequently requested funds to hire a private

psychiatric expert, citing (1) the absence of a doctor-patient privilege

between Davis and the regional and state examiners who had evaluated

him previously and (2) a desire to prepare the defense in mitigation and

explore the opinion that Dr. Jenkins had given regarding ADHD. Davis,

423 F.3d at 871; Davis, 539 S.W.3d at 567. The state trial court denied

Davis's request, but it later entertained a second, written one in which

Davis claimed that Ake v. Oklahoma, 470 U.S. 68 (1986) entitled him to funds

to hire an independent psychiatric expert to develop and present

mitigating evidence for the penalty phase. Trial Record at 103-119. See also

Davis, 539 S.W.3d at 567-68.

At a hearing on that motion, counsel withdrew the request for funds

for an expert for the guilt phase because he was abandoning the insanity

defense for lack of evidence. Trial Record at 619-20. As for the penalty

phase, the trial court held that before it could decide whether there was a

need for another expert, it would direct Davis’s counsel first to review the

state hospital records pertaining to the evaluations that had been

performed and interview the experts who had examined Davis to

determine whether they would be able to provide the assistance he was

seeking for the penalty phase. Davis v. State, 539 S.W.3d at 568; Trial

Record at 624-25. Davis’s counsel did so and, afterward, abandoned his

request for funds to hire a partisan expert and called Dr. Jenkins to testify

at sentencing. Davis, 539 S.W.3d at 568, 570-71.

The Penalty Phase

In the penalty phase of trial, the prosecuting attorney waived

opening statement, presented no evidence or witnesses in support of

aggravating circumstances, and presented none in rebuttal. He simply

relied on the guilt-phase proof to establish the two aggravating

circumstances: that Davis had killed Jane Daniel for pecuniary gain and to

avoid or prevent arrest. Trial Record at 3429-3431. Davis called Dr.

Jenkins, who testified about, among other things, Davis’s deprived

childhood, his history with substance abuse from an early age, and about

his learning disabilities, particularly the diagnosis of ADHD and about its

effects on behavior. Davis, 539 S.W.3d at 568. Davis called four other

witnesses who offered testimony about his life details that generally related

to the substance of Dr. Jenkins’s testimony. Davis, 423 F.3d at 872-73.

The jury ultimately found the existence of the two aggravating

circumstances regarding pecuniary gain and avoiding arrest. Id. at 873.

Further, at least one member of the jury found that Davis’s lack of

treatment for ADHD was a mitigating factor, but the jury collectively

determined that the aggravating factors outweighed beyond a reasonable

doubt any mitigating circumstances and that a death sentence was

justified. Id.

Direct and Collateral Review and Other Litigation

Davis appealed his convictions and sentences, and the Arkansas

Supreme Court affirmed. Davis, 863 S.W.3d 259. In so doing, it rejected

Davis’s argument that his trial had been infected by Ake error related to the

independence of state doctors and the refusal of his request for funds to

hire a private psychiatrist. Davis, 863 S.W.2d at 265. Davis sought

certiorari on that issue, and on April 4, 1994, his petition was denied

without dissent. See Davis v. Arkansas, 511 U.S. 1026 (1994). After Davis’s

petition was denied, the state-court mandate issued. Davis v. State, No. CR-

92-1385, Mandate (Ark. Apr. 6, 1994).

Davis subsequently sought state post-conviction review, where he

reargued the claim of Ake error. He contended that the Arkansas Supreme

Court on direct review had “not reach[ed] the question of the employment

of a private psychiatrist to assist [specifically] in the sentencing phase.” See

Davis, 44 S.W.3d at 730-31, 732. The Arkansas Supreme Court made clear

that “the issue was reached on direct appeal.” Id. at 731. It affirmed the

denial of post-conviction relief and issued its mandate in that appeal on

June 19, 2001. Davis v. State, No. CR-00-528, Mandate (Ark. June 19, 2001).

Davis then filed a federal habeas petition raising the Ake issue again.

The district court denied relief on his Ake claim, and the Court of Appeals

for the Eighth Circuit affirmed the denial. Davis v. Norris, 423 F.3d 868, 870,

871 (8th Cir. 2005). Davis’s motion to file a petition for writ of certiorari out

of time in this Court was also denied. Davis v. Norris, 547 U.S. 1067 (2006).

Over the next decade, Davis repeatedly engaged in litigation about

the constitutionality of sentences to death by lethal injection — challenges

which eventually came to be denied with references to principles against

piecemeal litigation and dilatory tactics. See McGehee, Davis, et al. v.

Hutchinson, 854 F.3d 488, 491, 492 (8th Cir.)(en banc)(per curiam), cert. denied,

__US.__, 137 S.Ct. 1275 (2017); Nooner & Davis v. Norris, 491 F.3d 804,

810 (8th Cir. 2007), cert. denied, 552 U.S. 1201 (2008).

Facing execution in April of 2017, Davis returned to state court and

filed a state-law motion in both his direct appeal and his post-conviction

appeal, asking the Arkansas Supreme Court to (1) recall the mandate

issued in his direct appeal and (2) stay his execution pending that court's

decision as to whether it would recall the mandate. Davis v. State, Nos. CR-

92-1385 & CR-00-528, Motion to Recall the Mandate and for Stay of

Execution (Ark. Apr. 12, 2017). He averred that this Court, in McWilliams v.

Dunn, ___— U.S. _, 137 S.Ct. 1790 (2017), would soon issue a decision

demonstrating that Ake had clearly established a right to the provision of a

partisan expert upon the requisite showing that sanity was seriously in

issue. Id. See also Davis, 539 S.W.3d at 569 (stating “[f]rom Davis’s motion,

it is clear that his request to stay his execution was premised on the

assumption that the Supreme Court would answer [the] question [about

partisan experts] in McWilliams”). He claimed that decision would

demonstrate that the Arkansas Supreme Court had erred in 1993 when it

rejected his claim for funds to hire such an expert and affirmed his

convictions and sentences. Id.

The state appellate court granted the stay of execution. Davis v. State,

Nos. CR-92-1385 & CR-00-528, Formal Order (Ark. Apr. 17, 2017). It did

not, at that time, grant or deny the recall motion, but it ordered that

briefing be submitted on it following the decision in McWilliams. Id. At

both briefing and argument on the motion, the question analyzed was

whether extraordinary circumstances (including a defect in the appellate

process) existed under state law to justify a recall of the mandate. On

March 1, 2018, the Arkansas Supreme Court unanimously answered that

question in the negative, denying Davis’s motion to recall the mandate and

lifting the stay of execution. Davis, 539 S.W.3d 565.!

' The Clerk of the Arkansas Supreme Court erroneously issued a

second “mandate” upon the court's denial of the motion to recall the

mandate, and Davis sought to stay that mandate in service of filing a

certiorari petition. Following the State’s response and its separate motion

for a rule on the clerk, the Arkansas Supreme Court denied Davis’s request

to stay the second mandate and issued a rule on the clerk withdrawing the

second mandate.

REASONS FOR DENYING THE WRIT

I. Jurisdiction is lacking because the petition presents no final

judgment for review, and the challenged decision resolved no

federal question.

This Court lacks jurisdiction to consider, for a second time, Davis’s

claim that his conviction and sentence are infected by Ake error.

Jurisdiction is lacking because the Arkansas Supreme Court's 2018 decision

that denied Davis’s motion to recall the mandate is not a final judgment

subject to this Court’s review, and it did not modify or reopen Davis's 1993

final criminal judgment for another round of review. Indeed, in denying

Davis’s motion to recall the mandate, the Arkansas Supreme Court did not

decide a federal question.

“This Court is precluded from taking cases unless the petition is

from a ‘final judgment’ within the meaning of 28 U.S.C. § 1257.” Bateman v.

Arizona, 429 U.S. 1402, 1406 (1976) (Rehnquist, J., in chambers). Davis has

failed to affirmatively establish this Court's jurisdiction under that

provision, as is his burden. See, e.g., Republic Natural Gas Co. v. Oklahoma,

332 U.S. 62, 70-71 (1948) (appellant has burden of affirmatively establishing

Court's jurisdiction). He contends simply that the Arkansas Supreme

10

Court’s 2018 denial of his motion to recall the mandate in his long final

direct appeal “is a final decree rendered by the highest court in the State of

Arkansas[ ]” and that it “[a]ccordingly [renders] jurisdiction . .. proper

under 28 U.S.C. § 1257.” Pet. at 1. The denial of Davis’s motion to recall the

mandate, however, is not a final judgment or decree in this criminal case.

The final judgment in a criminal proceeding is the sentence, which

stands as a final determination of the merits of the criminal charges and

leaves nothing to be done but to enforce what has been determined. E.g.,

Berman v. United States, 302 U.S, 211, 212-213 (1937). In this case, the

sentence, and hence the final judgment, was issued by the state trial court

when Davis was convicted and sentenced in 1992, and it became final for

purposes of jurisdiction under 28 U.S.C. § 1257 when it was affirmed on

direct review by the Arkansas Supreme Court in 1993. See 28 U.S.C. §

1257(a) (providing that final judgments issued by the highest court of a

State in which a decision could be had may be reviewed on certiorari). The

Arkansas Supreme Court's 2018 decision denying Davis's motion to recall

the mandate, therefore, is not itself a final judgment subject to review

under 28 U.S.C. § 1257.

11

Further, having denied Davis’s state-law motion for discretionary

recall of the mandate, the Arkansas Supreme Court's decision did not

modify Davis’s final criminal judgment or reopen it for another round of

direct review in the state court or in this Court on certiorari review. Cf.

Jimenez v. Quarterman, 555 U.S. 113, 120 & n. 4 (2009) (order granting

motion for out-of-time appeal renders State’s final criminal judgment

capable of modification through direct appeal in state court and on

certiorari review, but mere possibility that state court may grant motion

does not do so). Indeed, in denying the motion, the Arkansas Supreme

Court did not decide the federal question that Davis would present now

because he failed under state law to demonstrate the existence of

extraordinary circumstances warranting recall.

Because the mandate had issued on direct review in 1994, jurisdiction

did not lie for the Arkansas Supreme Court to rehear Davis’s already

definitively decided Ake claim when he filed his motion to recall the

mandate in 2017. The time for ordinary rehearing had long expired, see

Ark. Sup. Ct. R. 2-3(a), (g) (established time is within eighteen days of

issuance of the decision), and issuance of the mandate following the denial

12

of rehearing had divested the Arkansas Supreme Court of jurisdiction over

the appeal. See, e.g., Barclay v. Farm Credit Services, 8 S.W.3d 517, 519 (Ark.

2000) (state appellate court loses jurisdiction when mandate issues). As

noted above at n.1, supra at 9, the state court was certain on this point by

making sure the wrongly issued, second mandate was withdrawn.

While the Arkansas Supreme Court retained inherent authority

under state law to reassert jurisdiction over the appeal by recalling its

mandate, recall is only appropriate where the movant first demonstrates

that extraordinary circumstances warrant it. E.g., Robbins v. State, 114

S.W.3d 217, 221-22 (Ark. 2003). In determining whether such

circumstances exist, the Arkansas Supreme Court considers three factors,

including whether there was a defect in its process of reviewing an appeal

in a capital case. Nooner v. State, 438 S.W.3d 233, 239-40 (Ark. 2014). In the

direct-appeal context, the Arkansas Supreme Court has thus far limited this

defective-process criterion to capital cases in which the court altogether

failed to decide an issue because it had overlooked the issue while

conducting an independent review required of the court under its own

rules or jurisprudence. F.g., Nooner, 438 S.W.3d at 241-42 (denying recall

13

on ground Court had not overlooked error, but had applied the law as it

existed at time of direct review, and overruling Williams v. State, 2011 Ark.

534, where ground on which recall had been premised was not error that

the Court had overlooked in its required, independent review). The court

will not recall a mandate where, as in this case, it applied the law in

existence at the time of its decision. Nooner, 438 S.W.3d at 241-42.

Applying this standard in Davis’s case, the Arkansas Supreme Court

concluded under state law that he failed to demonstrate the existence of a

defect in the appellate process. In so doing, the court clearly did not redecide the federal question Davis presented on direct appeal about

whether neutral experts employed by the State and available to both

parties are sufficiently independent to satisfy due process under Ake. The

court explained that while it was clear Davis’s motion to recall the mandate

had been premised on his expectation that McWilliams would decide that

federal question and would decide it differently than the state court had in

1993, McWilliams did neither. Davis, 539 S.W.3d at 569. Because

McWilliams did not decide the federal question at all, the Arkansas

Supreme Court had no occasion to consider whether a change in the law,

14

like the one Davis predicted would be wrought by McWilliams, would be

sufficient as a matter of state law to demonstrate a defect in the appellate

process and to warrant recalling the mandate to reconsider the federal

claim. See id.

The Arkansas Supreme Court also decided no federal question when

it further explained that its ruling on the issue involving the independence

of neutral experts in 1993 had extended beyond Davis's initial request for

funds to hire a private expert to examine him, and indeed had resolved his

claim that Ake had also entitled him to funds for a private expert to assist

him in the preparation and presentation of his case in the penalty phase.

Davis, 539 S.W.3d at 569-70. On that point, Davis’s claim of a defect in the

state appellate process in 1993 was simply wrong as a matter of state law.

As the Arkansas Supreme Court explained, “Davis's interpretation of our

case law is incorrect” inasmuch as the “court has consistently held that the

medical experts available at the Arkansas State Hospital meet the

[independence] requirements of Ake because they are not involved in the

prosecution of criminals, not that a mental examination is all that is

required once a defendant has made a preliminary showing that his mental

15

state will be a ‘significant factor at trial.’” Id. at 570 (emphasis in original).

In fact, the Arkansas Supreme Court had made that clear to Davis in 2001,

when he attempted to revive the Ake issue on that basis in his state postconviction proceedings. Davis, 44 S.W.3d at 731 (stating the issue of

whether the experts had been sufficiently independent to provide

assistance in the penalty phase had been decided on direct appeal). The

Arkansas Supreme Court's interpretation of what its own cases hold, of

course, presents no federal question at all.

In denying the motion to recall the mandate, the Arkansas Supreme

Court further observed that, in any event, Davis had abandoned his

request for funds to hire a partisan expert to assist him in the preparation

and presentation of his penalty-phase defense. The court said Davis

abandoned his request when, following the trial court’s conditional ruling

on the motion and after consultation with the doctors who had already

evaluated him, he elected to present his case in mitigation using the expert

testimony of Dr. Jenkins. Davis, 539 S.W.3d at 570-71. That conclusion, too,

decided no federal question.

16

Because the decision Davis challenges is not a final judgment, and

because it neither modified the final judgment nor decided the federal

question Davis hopes to present, the petition should be denied for lack of

jurisdiction.

II. The petition neither demonstrates a meritorious constitutional

claim, nor presents an adequate vehicle for addressing the

question presented.

The petition should be denied for the additional reason that it fails to

demonstrate a meritorious constitutional claim. As noted above, supra at

16, Davis abandoned his claim of entitlement to funds for a private

psychiatric expert, and his sanity at the time of the offense was never

seriously in issue in any event. Ake’s due-process requirements, therefore,

were never triggered, yet Davis received the sufficiently independent

evaluations and assistance that Ake would have required even had he not

abandoned his claims to those requirements.

As noted, Davis obtained two evaluations by neutral, state-affiliated

experts. He received those evaluations not because he satisfied any

constitutional threshold demonstrating his sanity was seriously in issue,

but because (1) he simply had given notice of his intent to raise a defense of

17

mental disease or defect and (2) upon such notice, state law required that

he be evaluated to determine his mental condition. Both evaluations

concluded that Davis was not insane at the time of the crime, and Davis did

not rely on a defense of insanity at trial.

With regard to the penalty phase of trial, the prosecution presented

no psychiatric evidence or other evidence about Davis’s mental condition.

Further, despite the trial court’s willingness to grant Davis’s motion for

funds to hire a private expert if Davis could justify it after consulting with

the neutral experts, he never returned to the trial court to demonstrate the

need. He elected instead to present the testimony of Dr. Jenkins at

sentencing.

Ake did not hold that sanity is “seriously in issue” for due-process

purposes merely because one gives notice that he will rely on an insanity

defense. Nor did Ake hold that sanity or any other impaired mental

condition is seriously in issue so as to require that an expert be provided

for an indigent defendant at sentencing proceedings merely because his or

her mental condition may be relevant. It was significant in Ake that the

defendant had exhibited bizarre behavior both at his arraignment and

18

while in jail, and he had relied solely on an insanity defense, Ake, 470 U.S.

at 72, whereas Davis did not. Further, psychiatric testimony regarding

Ake’s future dangerousness was used by the prosecution in Ake’s penalty

phase, and his sanity was seriously in issue, yet Ake had been altogether

denied both an evaluation and assistance. Ake, 470 U.S. at 86-87. That was

not the case for Davis.

Also in contrast with Davis's case, but consistent with Ake, is the fact

that the prosecution in McWilliams presented psychiatric evidence at

sentencing. The prosecution’s psychiatric evidence in McWilliams

concerned the very issue on which McWilliams had requested expert

assistance and a continuance — that issue being whether McWilliams was

feigning mental-health problems. The trial court, moreover, apparently

denied McWilliams’s request for a continuance based on that disputed

issue precisely because the court believed McWilliams was feigning his

mental-health symptoms. McWilliams, 137 S.Ct. at 1795-97, 1801. Thus,

McWilliams’s mental condition plainly was seriously in issue, and his

efforts to obtain expert assistance on the issue were thwarted by the trial

court.

19

In stark contrast here, the trial court stood ready to grant Davis’s

request for funds to hire a private expert, Trial Record at 624-25, but postconviction testimony indicates Davis's counsel was simply unable to justify

the request for a private expert after having consulted the neutral state

experts. Post-conviction Record at 333-34, 339-40, 357-60, 365-66. Counsel

did not return to the trial court to demonstrate that the neutral experts had

been unable to satisfy counsel’s desire for expert assistance and testimony

at sentencing, much less that the neutral experts had been insufficient to

satisfy any constitutional requirement under Ake. Indeed, counsel elected

to call one of the neutral experts, Dr. Jenkins, who was a helpful witness for

Davis at sentencing. See Trial Record at 3439-3459. See also Davis, 539

S.W.3d at 570 (noting Davis’s counsel admitted in post-conviction

testimony that even if he had obtained funds to hire a partisan expert there

was no indication one would have reached a different result than Jenkins

or the state hospital doctors had reached); Davis, 423 F.3d at 874 (noting

Davis's counsel testified Jenkins had been a helpful witness at sentencing).

The petition does not present a meritorious constitutional claim. It should

be denied.

20

CONCLUSION

The petition for a writ of certiorari to the Supreme Court of Arkansas

should be denied.

Respectfully submitted,

LESLIE RUTLEDGE

Arkansas Attorney General

BY:

323\Center Street, Suite 1100

Little Rock, AR 72201

(501) 682-8068

ATTORNEYS FOR RESPONDENT

21