Reply Brief — Don William Davis, Petitioner v. Arkansas

***THIS IS A CAPITAL CASE***

No. 17-9207

IN THE SUPREME COURT OF THE UNITED STATES

DON WILLIAM DAVIS,

Petitioner,

v.

STATE OF ARKANSAS,

Respondent.

On Petition for a Writ of Certiorari

to the Arkansas Supreme Court

PETITIONER’S REPLY BRIEF

JENNIFFER HORAN

Federal Defender

APRIL GOLDEN*

april_golden@fd.org

Scott W. Braden

scott_braden@fd.org

Federal Public Defender Office

1401 West Capitol Avenue

Suite 490

Little Rock, Arkansas 72201

(501) 324-6114

*Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................................................................... iii

PETITIONER’S REPLY BRIEF ............................................................................... 1

I.

This Court Has Jurisdiction ............................................................................... 1

II.

Davis’s Petition Has Merit and Presents an Appropriate Vehicle for

Addressing the Question Presented ................................................................... 4

CONCLUSION ............................................................................................................. 7

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ake v. Oklahoma,

470 U.S. 68, 105 S. Ct. 1087, 84 L.Ed.2d 53 (1985) .......................................passim

Davis v. Norris,

423 F.3d 868 (8th Cir. 2005) .................................................................................... 6

Davis v. State,

44 S.W.3d 726 (2001) ................................................................................................ 6

Davis v. State,

539 S.W.3d 565 (Ark. 2018) ............................................................................. 3, 5, 7

Davis v. State,

863 S.W.2d 259 (1993) .............................................................................................. 6

Heike v. United States,

217 U.S. 423 (1910) .................................................................................................. 4

Market Street R. Co. v. Railroad Comm’n of Cal.,

324 U.S. 548 (1945) .................................................................................................. 4

McWilliams v. Dunn,

___ U.S. ____, 137 S. Ct. 1790 (2017) ............................................................... 3, 7, 9

Statutes

28 U.S.C. § 1257 ......................................................................................................... 3, 4

Other Authorities

Black’s Law Dictionary 970 (10th ed. 2014) ................................................................. 4

iii

PETITIONER’S REPLY BRIEF

Arkansas steadfastly refuses to acknowledge that an indigent defendant is

entitled to the assistance of an independent expert when mental health is a

significant issue. Despite Respondent’s assertions to the contrary, Davis’s petition

warrants certiorari. It squarely presents an important federal question for the Court’s

review, and jurisdiction is proper because the Arkansas Supreme Court’s decision

was a final and explicitly applied federal law.

I.

THE COURT HAS JURISDICTION.

Under 28 U.S.C. § 1257, the Court may review “final judgments or decrees

rendered by the highest court of a State in which a decision could be had, . . . where

any title, right, privilege, or immunity is specially set up or claimed under the

Constitution.” Respondent falsely suggests that the Arkansas Supreme Court’s

decision denying Mr. Davis’s motion to recall the mandate was not a final judgment

or decree subject to review under 28 U.S.C. § 1257 and did not involve a federal

question.

The fallacy of Respondent’s claim—that the Arkansas court did not enter a

final judgment or decree in the matter—is revealed by the court’s own actions. While

McWilliams v. Dunn, ___ U.S. ____, 137 S. Ct. 1790 (2017), was pending, Davis filed

a motion to recall the mandate with the Arkansas Supreme Court asserting he was

denied due process under Ake. The state court stayed Davis’s execution to take his

motion to recall “as a case.” Davis v. State, 539 S.W.3d 565, 567 (Ark. 2018). The

parties fully briefed and orally argued the Ake issue, and the case was submitted to

the court for decision. On March 1, 2018, the Arkansas Supreme Court issued a

majority opinion in the matter, accompanied by a two-justice concurring opinion,

denying Davis relief and lifting his stay of execution. The opinions were published in

the court’s official reporter (online) as well as the regional reporter.

Clearly, the court’s March 1 decision is a “judgment or decree” as those terms

are commonly understood. See Heike v. United States, 217 U.S. 423 (1910) (defining

a final judgment or decree as one that terminates the litigation between the parties

on the merits of the case and leaves nothing to be done but to enforce by execution

what has been determined) (quoting St. Louis, IM & S. R. Co. v. Southern Exp. Co.,

108 U.S. 24 (1883)); see also Black’s Law Dictionary 970 (10th ed. 2014) (defining

“judgment” as “[a] court’s final determination of the rights and obligations of the

parties in a case”).

Likewise, the finality language in § 1257 requires that a state-court judgment

be final “in two senses: it must be subject to no further review or correction in any

other state tribunal; it must also be final as an effective determination of the

litigation and not of merely interlocutory or intermediate steps therein. It must be

the final word of a final court.” Market Street R. Co. v. Railroad Comm’n of Cal., 324

U.S. 548, 551 (1945). The lower court’s decision was final within this meaning—there

would be no further review by a state tribunal and the decision was not interlocutory

or intermediate.

Respondent also argues that the Arkansas Supreme Court’s denial of Mr.

Davis’s Ake claim rests on an independent state law ground, not a federal question.

2

In reality, the Arkansas Supreme Court denied Davis’s motion to recall the mandate

basely solely on its erroneous conclusion that Davis’s Ake claim lacked merit.

As summarized by the majority opinion, Davis posed the following question to

the lower court:

In his motion, he argues that he did not receive the minimum due-process

requirements prescribed in Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84

L.Ed.2d 53 (1985)[,] because we have incorrectly interpreted and applied Ake,

and because of our misapplication, he did not have access to an independent

mental health expert to assist in his defense.

Davis, 539 S.W.3d at 567. In answering that question, the court analyzed Ake and

state case law interpreting it. In doing so, it held that its interpretation of Ake was

not flawed and that Davis received “at least the minimum due process required”

because he had been examined by state doctors available to both sides equally. Id. at

569-70. Once the lower court established that Davis’s Ake claim failed, he was unable

to show a defect in the appellate process, the first prong necessary to maintain a

motion to recall the mandate. Id. at 571. Consequently, the court’s ultimate

conclusion that Davis had not met the state’s motion-to-recall-the-mandate standard

was entirely contingent on the court’s resolution of Davis’s Ake claim. “[W]hen

resolution of the state procedural law question depends on a federal constitutional

ruling, the state-law prong of the court’s holding is not independent of federal law,

and our jurisdiction is not precluded.” Ake v. Oklahoma, 470 U.S. 68, 75 (1985).

To the extent Respondent argues that Davis abandoned his Ake claim, that

argument is unfounded. Davis has repeatedly insisted he was denied expert

assistance under Ake. Twice Davis’s trial counsel raised the issue of needing the

3

assistance of a mental-health expert to defend Davis, and twice the trial court denied

his request. He argued he was denied the assistance of an Ake expert on direct appeal,

and the Arkansas Supreme Court rejected his argument on the merits, citing to wellestablished Arkansas precedent that an examination at the state hospital met the

requirements of Ake. See Davis v. State, 863 S.W.2d 259, 265 (1993). Again Davis

raised the issue during his state postconviction proceedings, Davis v. State, 44 S.W.3d

726 (2001), and in his habeas proceedings, Davis v. Norris, 423 F.3d 868 (8th Cir.

2005).

Contrary to Respondent’s assertions, an important federal question is squarely

and plainly presented by Davis’s petition.

II.

DAVIS’S PETITION HAS MERIT AND PRESENTS AN

APPROPRIATE VEHICLE FOR ADDRESSING THE QUESTION

PRESENTED.

Although Respondent offers several reasons to deny Davis’s petition for writ of

certiorari, none withstand scrutiny.

First, Respondent argues that Davis’s sanity at the time of the offense was

never seriously in issue, and therefore, the due-process requirements of Ake were

never triggered. There is no question that Davis’s mental condition was relevant as a

possible mitigating circumstance for the jury to weigh in determining whether to

sentence him to death. R. 348-49. Further, defense counsel raised questions

concerning Davis’s mental health throughout the proceedings, largely in part due to

the information provided (to both prosecution and defense) by the state-hospital

doctors who twice evaluated Davis.

4

Notwithstanding Respondent’s claim otherwise, Davis’s mental health was a

significant factor, especially in the penalty phase. With the information provided in

the Arkansas State Hospital evaluation report, the prosecutor used Davis’s selfreported long history of drug and alcohol abuse, early childhood neglect, and learning

disabilities against him. R. 3549-50. Davis, deprived of the assistance of an

independent expert to explore mitigation, had no choice but to offer the testimony of

Dr. Jenkins, a state doctor who had examined him for approximately an hour and

evaluated his competency. Defense counsel made clear that Dr. Jenkins, while

agreeable to testifying, never assisted in evaluating, preparing, or presenting Davis’s

defense. P.C.R. 285-95, 340-45. In fact, there is no evidence in the record that Dr.

Jenkins helped the defense in any meaningful way, a fact emphasized by Justice Hart

in her concurring opinion. Davis, 539 S.W.3d at 573 (concluding that Dr. Jenkins’s

participation did not satisfy Ake because he never met with Davis’s attorneys to

convert Davis’s mental-health history into trial strategy, never reviewed all of Davis’s

records, and never reexamined him).

Not surprisingly, the prosecutor’s main focus in advocating for a death

sentence was Davis’s state of mind when he committed the murder and how “none of

these doctors” found “anything wrong with him.” R. 3563. Respondent alleges that in

sharp contrast to both Ake and McWilliams, the prosecutor in Davis’s case “presented

no psychiatric evidence or other evidence about Davis’s mental condition,” BIO, 18,

but it is abundantly clear from the record that the prosecutor built his penalty-phase

case on the fact that Davis did not have expert assistance. Instead, Davis had state

5

doctors, openly communicating with the prosecutor. Without help from an

independent expert who could examine the state mental-health evaluations, assist in

developing mitigation, and rebut the prosecutor’s claims, Davis had no shield to

defend himself from the prosecutor’s sword.

Moreover, Respondent made this argument—that Davis’s sanity was not

seriously at issue to trigger Ake—to the Arkansas Supreme Court in the motion-torecall briefing, and the court rejected it. Indeed, no court that has considered Davis’s

Ake claim has found that he failed to meet the threshold. The Arkansas Supreme

Court, which has considered Davis’s Ake claim on three separate occasions, has

consistently held that Davis received all the assistance to which he was entitled when

he was examined by state doctors who were available to all parties.

Finally, Respondent alleges that even if Davis met the necessary threshold, he

received “the sufficiently independent evaluations and assistance that Ake would

have required.” BIO, 17. Respondent is correct as far as what Arkansas says Ake

requires. Absent intervention from this Court, Arkansas’s error will remain the law.

Davis was denied any meaningful assistance from a mental-health expert, let alone

assistance from an expert who was sufficiently independent from the prosecution.

Despite repeated desperate attempts to access an independent expert to assist in

evaluating, preparing, and presenting his defense, he was forced to trial with a shared

state doctor, who did not provide assistance. This is not what Ake requires. The

assistance Ake demands is meaningless if it can be satisfied by the facts of this case.

6

CONCLUSION

Arkansas has for decades incorrectly interpreted Ake as automatically satisfied

where the state performed a competency evaluation. Worse still, it continues to so

hold despite this Court’s ruling in McWilliams. Arkansas is an outlier, refusing to

provide experts who are sufficiently available to the defense and independent from

the prosecution to provide effective and meaningful assistance to the defense. This

Court should grant certiorari.

Respectfully submitted,

JENNIFFER HORAN

FEDERAL DEFENDER

/s/ April Golden

April R. Golden

Scott W. Braden

april_golden@fd.org

1401 W. Capitol Ave., Ste. 490

Little Rock, AR 72201

Counsel for Petitioner

7