Petition for Writ of Certiorari — William Davenport, Petitioner v. James Falk, Warden, et al.
Supreme Court briefSep 13, 2018
Ask Donna
What actually matters in this document.
Text
©Lllfl1ff.
No._ :3
IN THE
FILED
SUPREME COURT OF THE UNITED STATES
WILLIAM DAVENPORT
SEP 132018
OFFICE OF THE CLERK
SUPREME COURT. U.S.
PETITIONER
-
Vs.
-.7
JOHN CHAPDELAINE
RESPONDENT(S)
-
ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEALS
FOR THE TENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
William Davenport
CDOC# 135683
Sterling Correctional Facility
12101 State Highway 61/ P0 BOX 6000
Sterling, Colorado 80751
QUESTION(S) PRESENTED
Whether trial court erred in admitting evidence of DNA testing from mixed
samples.
Whether trial courts abuse of discretion violated Applicant's right to a fair trial
by admitting evidence it denominated as Res Gestae.
Ill.
Whether trial courts failure to give requested instructions violated Applicant's
right to fair trail and due process.
Whether trail court erred in permitting a witness to make a first time
identification of defendant at trial.
Whether trial attorney was ineffective for not employing an expert witness.
LIST OF PARTIES
[x] All parties appear in the caption of the case on the cover page.
[1 All parties do not appear in the caption of the case on the cover page. A list of
all parties to the proceeding in the court whose judgment is the subject of this
petition is as follows:
TABLE OF CONTENTS
OPINIONS BELOW
.1
JURISDICTION...................................................................................................................2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................................3
STATEMENT OF THE CASE ..............................................................................................4
REASONS FOR GRANTING THE PETITION.....................................................................5
CONCLUSION..................................................................................................................30
INDEX TO APPENDICES
APPENDIXA June 22, 2018 opinion of the Tenth Circuit
APPENDIX B Opinion of the Federal District Court for the District of Colorado
APPENDIX C
APPENDIX D
APPENDIX F
TABLE OF AUTHORITIES CITED
CASES
PAGE NUMBER
Arrnstead v. State 342 Md. 38 673 A.2d 221,237.........................................................................9
Blackmon v. Booker, 394 F. 3d 399..............................................................................................16
Blalock v. Wilson, 2005 U.S. Dist. Lexis 9418 ........................................................................6,15
Brecht v. Abrahamson, 507 U.S. 619, 638..................................................................................23
Bynote v. National Super Markets, Inc., 891 S.W. 2d 117,121 (MO 1995).............................18
California v. Brown 479 U.S. 538....................................................................................................8
Carella v. California, 491 U.S. 263, 109 S.Ct. 2419...................................................................20
Cassidy v. State, 74 Md. App. 1, 536 A.2d 666. 670 .................................................................17
Coleman v. Thompson, 501 U.S. 722.........................................................................................30
Corn v. Blasioli, 552 Pa. 149 (Pennsylvania); ...............................................................................9
Commonwealth v. Devlin, 365 Mass. 149, 310 N. E. 2d 353....................................................10
Dandridge v. Williams, 397 U.S. 471, 475...................................................................................17
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)........................................ 5
Davis v. Strack, 270 F.3d 111 ....................................................................................................6,20
Davis v. Wakelee, 156 U.S. 680, 689...........................................................................................24
Delgado v. Rice, 67 F. Supp. 2d 1148..........................................................................................25
Estell v. McGuire, 502 U.S. 62, 73...............................................................................................22
Francis v. Franklin, 471 U.S. 307, 105 S.CF. 1965....................................................................20
Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).........................................................6
Hawkins v. United States, 358 U.S. 74, 81 .................................................................................11
Higginsv. Warden, 715 F.2d 1050.................................................................................................18
Hilyerv. Howat Concrete Co., 578 F.2d 422...............................................................................18
Huddleston v. United States, 485 U.S. 681, 687....................................................................6, 16
Hughes v. Beard, 2007 U.S. Dist. Lexis 71252..........................................................................29
In re Poali R.R. Yard PCB Litigation, 35 F.3d 717, 743.............................................................17
Jolly v. People, 742 P.2d 891
20
Kansas v. Gunby, 144 P.3d 647 (KS 2006 ..................................................................................18
Lindsey v. People 892 P.2d 281, 294[citing FBI Rep.].. ................................................................ 9
Manson v. Brathwaite, 432 U.S. 98
.25
Mathews v. United States, 484 U.S. 58, 63..........................................................................22, 24
Miller v. Keating, 745 F.2d 507, 509 ............................................................................................18
Moorev. Illinois. 434 U.S. 20.........................................................................................................27
Napue v. Illinois, 360 U.S. 264......................................................................................................27
People v. Agado, 964 P.2d 565,570.............................................................................................19
People v. Chandler, 211 Mich. App. 604 (Michigan) ..................................................................10
People v. D.F., 933 P.2d 9, 13.......................................................................................................12
People v. Fishback, 851 P.2d 884 ................................................................................................11
People v. Flippo, 159 P.3d 100, 106 (Cob. 2007)......................................................................19
People v. Giles, 635 N.E. 2d 969,975..........................................................................................18
People v. Hill, 663 N.E. 2d. 503, 506 ..........................................................................................18
People v. Lindsey, 892 P.2d 281, 288-95 ....................................................................................10
People v. Martinez, 74 P.3d 316 ...................................................................................................17
People v. Miller 173 Ill. 2d 167; .......................................................................................................9
Peoplev. Monroe, 925 P.2d 767...................................................................................................26
People v. Quintana, 882 P.2d 1366, 1371 ...............................................................................6,16
People v. Ramirez, 155 P. 3d 371 (Cob. 2007)..........................................................................19
People v. Smith, 132 Cal. Rptr. 2d 230 (Cal. App. 2 Dist. 2003) .............................................12
People v. Soto, 981 P.2d 958 (Cal. 1999).....................................................................................8
People v. Stewart, 55 P.3d 107, 122 ........................................................................................7, 17
People v. Watson, 257 Ill. App 3d. 915 ........................................................................................10
People v. Wilkerson, 114 P. 3d 874................................................................................................8
People v.Wesley, 83 N.Y. 2d. 417.................................................................................................10
Porter v. Horn, 276 F. Supp. 2d. 278............................................................................................15
Roberts v. U.S. 916 A.2d 922 (D.C. 2007) .................................................................................12
Sandstorm v. Montana, 442 U.S. 510, 99 S.Ct. 2450................................................................20
State v. Anderson 118 N.M. 284 (New Mexico) .........................................................................10
State v. Bible, 175 Ariz. 549, 858 P.2d 1152...............................................................................10
State v. Bloom 516 N.W. 2d. 159, 162-63; ....................................................................................9
State v. Copeland 130 Wn. 2d 244, 922 P.2d 1304, 1319..........................................................9
State v. Dinkins 319 S.C. 415(5. Car. )........................................................................................9
11
State v. Ford, 301 S.C. 485
.11
State v. Freeman 253 Neb. 385 (Nebraska)................................................................................. 9
State v. Futrell, 112 NC. App. 651 (North Carolina) .................................................................10
State v. Hannon 703 N.W. 2d 498 (Minn. 2005).........................................................................12
State v. Long, 801 A.2d 221 ..........................................................................................................18
State v. Marcus 294 N.J. Super. 267 [683 A. 2d. 221 ](New Jersey).......................................... 9
State v. Morel, 676A.2d 1347 (Rhode Island) .............................................................................. 9
State v. Vandebogart, 136 N.H. 365, 616....................................................................................11
State v. Weeks 270 Mont. 63 (Montana) ......................................................................................9
State v. Williams, 673 S.W. 2d 32,34...........................................................................................18
Stephens v. Miller. 13 F.3d 998 ......................................................................................................18
Taylor v. State 889. P.2d 319 (Oklahoma). .................................................................................. 10
United States v. Aleman, 592 F.2d 881, 885 (5th Cir. 1979)..................................................7, 17
United States v. Bailer, 519 F.2d 463...........................................................................................11
United States v. Batchelder, 442 U.S. 114 ..............................................................................7, 17
United States v. Cano, 289 F.3d 1354 (11th Cir. 2002)................................................................8
United States v. Daly, 974 F.2d 1215, 1217 (9th Cir.). .................................................................. 7
United States v. Downing, 753 F. 2d 1224 .............................................................................10-11
United States v. Figueroa-Lopez, 125 F.3d 1241, 1244-46 ........................................................8
United States v. Frost, 914 F.2d 756,764 ....................................................................................22
United States v. Jakobetz, 955 F.2d 786, 794 ............................................................................11
United States v. Kelly, 420 F.2d 26...............................................................................................11
United States v. Lawson 81 Fed. R. Evid. Serv. (Callaghan) 324............................................18
United States v. Matot, 146 F.2d 197,198 ..................................................................................18
United States v. Myers, 972 F.2d 1566, 1577.).............................................................................7
United States v. Novaton, 271 F.3d 468, 1008 (11th Cir. 2001 ....................................................7
United States v. Peoples, 250 F.3d 630, 641 ................................................................................8
United States v. Porter, 618 A. 2d 629, 633................................................................................11
United States v. Stifel, 433 F. 2d 431. Etc . .................................................................................. 11
United States v. Weeks, 716 F.2d 830, 832 (11th Cir. 1983).......................................................7
United States v. Williams, 583 F. 2d 1194; ..................................................................................11
United States v. Williford, 764 F.2d 1493, 1498 (11th Cir. 1985)...........................................7, 17
Whetherbee v. Safrty Casualty Co. 219 F.2d 274......................................................................19
Wilson v. Sellers, 138 S.Ct. 1188.............................................................................31
Yatesv. Evatt, 500 U.S. 391 .....................................................................................................23-24
STATUTES
28 U.S.C.S. §2254(d).....................................................................................................................14
OTHER AUTHORITIES
22 Charles A. Wright and Kenneth W. Graham Jr.,
Federal Practice and Procedure §5239......................................................................................7
An Introduction to the Symposium on the 1996 NCR Report on Forensic DNA Evidence
....
9
Chris Blair,
Let's Say Goodbye to Res Gestae, 33 Tulsa L.J. 349, 354-55 (1997)................................18
Lawrence M. Zavadil,
Res Gestae Evidence, 24 Cob. Law . ....................................................................................... 18
Dennis D. Prater & Virginia M. Klemme,
Res Gestae Raises Its Ugly Head, 65 J. Kan. B.A. 24 Oct 1992.........................................18
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
[x] For cases from federal courts:
The opinion of the United States court of appeals appears at Appendix Ato the
petition and is
[1 reported at
; or,
[ ] has been designated for publication but is not yet reported; or,
[x] is unpublished.
The opinion of the United States district court appears at Appendix Bto the
petition and is
[1 reported at
; or,
[1 has been designated for publication but is not yet reported; or,
[xl is unpublished.
[ I For cases from state courts:
The opinion of the highest state court to review the merits appears at
Appendix
to the petition and is
[I reported at
; or,
[1 has been designated for publication but is not yet reported; or,
[I is unpublished.
The opinion of the
appears at Appendix
court
to the petition and is
[1 reported at
; or,
[I has been designated for publication but is not yet reported; or,
] is unpublished.
1
JURISDICTION
[x] For cases from federal courts:
The date on which the United States Court of Appeals decided my case
was June 22, 2018
[xl No petition for rehearing was timely filed in my case.
[ ] A timely petition for rehearing was denied by the United States Court of
Appeals on the following date: and a copy of the order denying rehearing
appears at Appendix
[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including
(date)
(date) on
in Application No.
A
The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).
I For cases from state courts:
The date on which the highest state court decided my case was
A copy of that decision appears at Appendix
________
[ I A timely petition for rehearing was thereafter denied on the following date:
and a copy of the order denying rehearing
appears at Appendix
] An extension of time to file the petition for a writ of certiorari was granted
to and including
(date) in
(date) on
Application No.
A
The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
U.S. Const. Amend. 5:
"No person shall be... deprived of life, liberty, or property, without due process of law."
U.S. Const. Amend. 6:
"In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial
by an impartial jury..."
U.S. Const. Amend. 6:
"In all criminal prosecutions the accused shall enjoy the right.., to have the assistance of
counsel for his defense."
U.S. Const. Amend. 14:
"No state... shall deprive any person of life, liberty, or property without due process of
law..."
28 U.S.C. § 2254(d)(1):
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted with respect to any claim that was
adjudicated on the merits in state court proceedings unless the adjudication of the
claim.., 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..."
3
STATEMENT OF THE CASE
On May 26, 2016 Applicant filed 28 U.S.C. §2254. Respondents submitted PreAnswer Response on July 27, 2016. Applicant filed a reply on September 9, 2016.
Respondents filed an order to dismiss in part and for answer April 12, 2017.
Respondents filed order dismissing §2254 application on August 2, 2017. Applicant then
filed Application for a Certificate of Appealability for Tenth circuit on November 21, 2017.
Respondents filed order denying certificate of Appealability for Tenth circuit on June 22,
iIE;j
4
REASONS FOR GRANTING THE PETITION
Argument 1.
Respondents claim Argument I was procedurally defaulted because his state
court argument on this issue had been based entirely on state, not federal law and a brief
citation to the Fifth and Fourteenth amendments at the conclusion was insufficient to put
the state court on notice that Applicant was raising a federal constitutional claim. The
court has erred in this regard and Applicant has shown throughout this process that he
did in fact alert the court that he was alleging a violation of his constitutional rights. See
Appendix J. Pg. 18 line 4 and 5. "Admission of then DNA violated Mr. Davenport's rights,
because the science is not sufficiently developed to permit admission of DNA from a
mixture." Pg. 20 line 9-17 "Evidence about DNA testing and population frequencies from
a mixture is not reliable. Under Shreck, reliability is assessed by looking at the totality of
circumstances, consistent with the purpose of Rule 702, and not by use of any specific
list of factors. See Shreck, supra. Cf. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993) (considering four general observations in determining reliability:
falsifiability, peer review, known rate of error and control standards, and general
acceptance). To be admissible at trial, DNA evidence must be accompanied by statistical
probability evidence that is reliable and relevant." Pg. 23 line 10-12. "Because the expert
testimony about DNA mixture evidence and frequency statistics was inadmissible under
rule 702 and 403, Mr. Davenport's right to a fair trial was violated. U.S. Const. Amend V
and XIV." It is also on the record that in Shreck, the defendant's motion at the trial level
primarily challenged the DNA testing techniques themselves. There appears to have
5
been a Frye challenge (Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923)) to the
statistical evidence in the trial court.
Respondents claim Applicant did not alert state court of his constitutional violation
but then states that a conclusory citation to a constitutional provision is insufficient to
satisfy the "fair presentation" requirement. Fair presentation of a claim in a federal
constitutional context requires a petitioner to apprise the state courts that a claim is a
federal claim, not merely as an issue arising under state law. A Habeas petitioner need
not cite book and verse on the federal constitution to apprise state courts that his claim is
based on federal law. Blalock v. Wilson, 2005 U.S. Dist. Lexis 9418. If a petitioner cites to
a specific provision of the U.S. Const. in his state court brief, the petitioner has fairly
presented his constitutional claim to state court. Davis v. Strack, 270 F.3d 111.
In determining whether a petitioner has fairly presented federal constitutional
claims to the courts, a habeas court must consider whether the petitioner relied upon
state cases employing the federal constitution analysis in question. Supra Wilson. The
substance of each state case law is what was relied upon. Applicant will demonstrate
how each state case law employed the federal constitutional analysis in question.
1. People v. Quintana, 882 p.2d 1366, 1371. (Trial court abused its discretion and
made an evidentiary ruling that is manifestly arbitrary, unreasonable, or unfair.)
-
Cre 404(b) prohibits the introduction of extrinsic act evidence when such
evidence is offered solely to prove character. Huddleston v. United States, 485
U.S. 681, 687.
-
To also argue the introduction of evidence, People v. Quintana states: see 22
It
Charles A. Wright and Kenneth W. Graham Jr., Federal Practice and
Procedure §5239, at 436. United States v. Aleman, 592 F.2d 881,885 (5th Cir.
1979': Cf. United States v. Williford. 764 F.2d 1493. 1498 (11th Cir. 1985').
-
Evidence of an uncharged offense arising from the same series of
transactions as that charged is not an extrinsic offense within Rule 404(b)
United States v. Weeks, 716 F.2d 830, 832 (lith Cir. 1983).
-
Other act evidence does not fall within the proscription of Rule 404(b) United
States v. Daly, 974 F.2d 1215, 1217 (9th Cir.).
2. People v. Stewart, 55 P.3d 107, 122 (The courts admission of DNA
evidence was manifestly arbitrary, unreasonable or unfair and an abuse of
discretion.)
-
The Fourteenth Amendment to the United States Constitution provides in part
that no state shall deny to any person within its jurisdiction the equal protection of
laws.
-
United States v. Batchelder, 442 U.S. 114. The Supreme Court has held that
.
equal protection is not offended when statues proscribed identical conduct but
authorize different penalties.
-The application of Rule 701 Cf. United States v. Novaton, 271 F.3d 468, 1008
(llth Cir. 2001) emphasizing that a witness does not fall outside of Rule 701
simple because his or her rational... perception is based in part on the witness's
past experience. (quoting, United States v. Myers, 972 F.2d 1566, 1577.)
7
-
United States v. Peoples, 250 F.3d 630, 641; United States v. Figueroa-Lopez,
125 F.3d 1241, 1244-46. Officer testimony becomes objectionable when what is
essentially expert testimony is improperly admitted under the guise of lay
opinions. As the Peoples court observed, "such a substitution subverts the
disclosure and discovery requirements of federal Rules of Criminal Procedures
26 and 16 and the reliability requirements for expert testimony" 250 F.3d at 641;
See also Figueroa-Lopez, 125 F.3d at 1246 (making the same point); George P.
Joseph "Emerging Expert Issues Under the 1993 Disclosure Amendments to the
Federal Rules of Civil Procedures, 164 F.R.D. 97, 108 (Urging courts to be
"vigilant to preclude manipulative conduct designed to thwart the expert
disclosure and discovery process")
-
United States v. Cano, 289 F.3d 1354 (11th Cir. 2002). Concluding that
.
deciphering did not constitute expert testimony.
People v. Wilkerson, 114 P. 3d 874 (The court concluded that the analysis under
CRE 702 and 403 are nearly identical. The court had to determine whether the
probative value was not substantially outweighed by unfair prejudice.)
Frye v. United States, 54 App. D.C. 46, 293 F.1013. Arguing that the general
-.
acceptance test of Frye, superseded by statue/rule, was explicitly disapproved of
in Shreck because it "restricts the admissibility of reliable evidence that may not
yet qualify as generally accepted.
People v. Soto, 981 P.2d 958 (Cal. 1999).
-
California v. Brown 479 U.S. 538. The scientific technique on which evidence is
.
being offered must have gained general acceptance in the particular field to
which it belongs. Revd. On other grounds sub nom.
-
People v. Soto is a California case that argues DNA analysis and methods used
.
to obtain DNA profiles that are similar state wide. Stating cases from multiple
states. Ex. Maryland, Arrnstead v. State 342 Md. 38 (673 A.2d 221,237)1Minnesota, State v. Bloom 516 N.W. 2d. 159, 162-63; Colorado, Lindsey v.
People 892 P.2d 281, 294[citinq FBI Rep.]; Washington, State v. Copeland 130
Wn. 2d 244 1922 P.2d 1304, 13191.
-
People v. Soto also references about An Introduction to the Symposium on the
1996 NCR Report on Forensic DNA Evidence, an introduction to the Symposium
on the 1996 NCR Report composed of six articles was published in 37
Jurimetrics J. 395 (1997).
-
A majority of jurisdictions have acknowledged these developments which
include the 1993 FBI Report (a worldwide population study), the Lander and
Budowle article and most significant, the 1996 NCR Report and have concluded
that the controversy over population substructuring and use of the unmodified
product rule has been sufficiently resolved. (See, e.g., Corn v. Blasioli, 552 Pa.
149 (Pennsylvania); State v. Freeman 253 Neb. 385 (Nebraska); State v.
Copeland 922 P. 2d 1304 (Washington); People v. Miller 173 III. 2d 167; State v.
Marcus 294 N.J. Super. 267 [683 A. 2d. 2211(New Jersey); State v. Morel, 676
A.2d 1347 (Rhode Island); State v. Dinkins 319 S.C. 415 (South Carolina); State
v. Weeks 270 Mont. 63 (Montana); State v. Anderson 118 N.M. 284 (New
Mexico); State v. Futrell, 112 N.C. App. 651 (North Carolina); People v. Chandler,
211 Mich. App. 604 (Michigan); Taylor v. State 889. P.2d 319 (Oklahoma).
5. People v. Lindsey, 892 P.2d 281, 288-95
-
Prior to admitting DNA evidence, the trial court conducted proceedings to
determine its admissibility under Frye v. United States, 54 App D.C. 46, 293 F.
1013.
-
Since our decision in Fishback the United States Supreme Court has rejected
Frye as the standard for admissibility of scientific evidence in favor of what has
been characterized as a more lenient relevancy standard under FIRE 702.
Daubertv. Merrell Dow Pharmaceuticals, Inc, 125 L. Ed. 2d 469, 113 S.Ct. 2786.
-
Lindsey also uses multiple case laws from various states to include that it's not
.
just a Colorado issue. People v. Watson, 257 III. App 3d. 915; People v.Wesley,
83 N.Y. 2d. 417; Commonwealth v. Devlin, 365 Mass. 149, 310 N. E. 2d 353.
-
Lindsey relies on the articles listed above and cases in which courts have
rejected probability evidence. See State v. Bible, 175 Ariz. 549, 858 P.2d 1152.
-
Nor are we of the view that general acceptance requires the trial court to "count
scientific noses," an often voiced criticism of Frye. See United States v. Downing,
753 F.2d 1224. 1238.
-
Pg.19 of Direct Appeal 81n Shreck, the defendant's motion at the trial level
primarily challenged the DNA testing techniques themselves. Applicant has
argued that this issue is not merely an issue arising under state law in his direct
10
appeal and during trial. See Appendix J. Pg. 19 line 7-13.
6. People v. Fishback, 851 P.2d 884
-
-
Quoting Frye for the standard of admissibility.
By requiring the general acceptance of noval scientific evidence within the
relevant scientific community, the Frye court sought to ensure that only reliable
evidence was admitted. United States v. Jakobetz, 955 F.2d 786, 794.
-
Admissibility of DNA evidence presents the very kind if issue which the
language from Frye was designed to address. United States v. porter, 618 A. 2d
629, 633.
-
Because the focus is different than in the diagnostic setting, problems may exist
that are unique to forensic DNA test... Such problems, however concern the
reliability of the particular test performed in a particular case. State v. Ford, 301
S.C. 485; State v. Vandeboqart, 136 N.H. 365, 616.
-
Any rule that impedes the discovery of truth in a court of law impedes as well
the doing of justice. Hawkins v. United States, 358 U.S. 74, 81.
-
Many Federal courts have agreed with this position rejecting Frye rule in favor
of a relevancy test balancing probativeness against prejudice in cases involving
scientific test and principles other than those concerning DNA. United States v.
Kelly, 420 F.2d 26; United States v. Downing, 753 F. 2d 1224; United States v.
Williams, 583 F. 2d 1194; United States v. Bailer, 519 F.2d 463; United States v.
Stifel. 433 F. 2d 431. Etc.
11
7. People v. D.F., 933 P.2d 9, 13 (Trial court must make sufficient findings of fact
and conclusions of law so that the appellate court can conduct a meaningful
review of that court's decision.)
-
In Shreck the defendant's motion at the trial level primarily challenged the DNA
testing techniques themselves. There appears to have been a Frye challenge
Frye v. United States, 293 F.1013, 1014 (D.C. Cir. 1923) to the statistical
evidence in the trial court. Applicant has argued that this issue is not merely an
issue arising under state law in his direct appeal and during trial. See Appendix J
Pg.19 line 7-13. Pg.20 Evidence about DNA testing and population frequencies
from a mixture is not reliable. Cf. Daubert v. Merrell Dow Pharmaceuticals Inc.,
509 U.S. 579. Defendant's use here of federal case laws to reiterate not just state
but federal violations as well. Applicant has shown this argument to be more than
just a state law argument. It's not just a state issue but a federal issue being
argued state wide and Applicant argues this throughout his direct appeal. Multiple
cases throughout the United States were quoted. See Appendix J Pg.23 Roberts
v. U.S. 916 A.2d 922 (D.C. 2007); People v. Smith, 132 Cal. Rptr. 2d 230 (Cal.
App. 2 Dist. 2003); State v. Hannon 703 N.W. 2d 498 (Minn. 2005).
The federal habeas forum must emphasize substance over form by scrutinizing the
essence of the legal theory previously presented to the state court. The basis of the
argument presented for a violation of Applicants right to a fair trial was that the expert's
testimony about DNA mixture evidence and frequency statistics was inadmissible.
Examples were given.
12
.After testing the glove the People's expert concluded that there was a mixture of
DNA on the glove of a minimum of four people and that Mr. Davenport was a
possible contributor of DNA to the glove and that the odds of an individual
unrelated to Mr. Davenport being a contributor were 1 in 28 for the outside of the
glove and I in 50 for the inside of the glove. Stated another way 3.6% of the
United States population (approximately 1,000,000 people) were possible
contributors of the DNA found on the outside of the glove. 2% of the U.S.
population (approximately 600,000 people) were possible contributors of the DNA
found on the inside of the glove. Pg.13 line 8 thru Pg.14 line 2 Appendix J.
Meaning that it was at least 4 contributors and up to 36 contributors. Pg.15 line 10,
11 Appendix J.
.The mixture DNA evidence was not resolvable, meaning the expert could not
conclude with any degree of scientific certainty that a particular individual actually
contributed the DNA to the mixture. Pg.16 line 1-3 Appendix J.
.Because the suspects DNA was masked, it is not possible to give a population
frequency statistic comparable with that given in cases were only one person
contributed DNA to the sample being tested. Pg.18 line 10-12 Appendix J.
.The worth of DNA testing comes in the ability to ascertain how many people in the
general population, or what percentage of the general population could have
contributed the DNA that is being examined. Population frequency calculations
are typically used to compete and express the rarity of a particular sample. In a
mixture, the population frequency of the major component (but not the minor one)
13
can be calculated. When CBI test a mixture it does not usually calculate the
population frequencies unless asked to do so and then CBI calculates the
frequency of the major component. Here, CBI was unable to determine major and
minor components.
The courts claim that errors of state law do not automatically become violations of
due process. The Due Process Clause, our decisions instruct, safeguard not the
meticulous observance of state procedural prescriptions. It's not just the error of state
law that violates applicants due process but the misrepresentation of inconclusive nonfacts the state used to mislead the jury. The court with blatant disregard has ignored the
fact that Applicant presented the state court with a claim whose substance alerted the
state court to its federal claim. The substance of this argument is one that has never
been fully explored. The rarity of this issue is so, that procedures for DNA mixtures have
not been sufficiently developed and used in criminal proceedings or trials because the
science is not known. The courts in this case used the science and methodology of what
is known for single DNA situations in comparison with this mixture DNA in this case. This
is two completely different issues that can't be in comparison. The results were not 100%
and inconclusive. The states expert concluded that a minimum of 4 to as many as 36
possible contributors were included in this DNA. For purposes of 28 U.S.C.S. §2254(d) a
decision is contrary to clearly established federal law if it reaches a conclusion opposite
to that reached by United States Supreme Court holdings on a question of law or if it
faces a set of facts materially indistinguishable from relevant Supreme Court precedent
and still arrives at an opposite result. A state court decision will certainly be contrary to
14
our clearly established precedent if the state court applies a rule that contradicts the
governing law set forth in our cases. Blalock v. Wilson, 2005 U.S. Dist. Lexis 9418.
The court has erred by dismissing the claim by procedural default. The error of this
issue is magnified by the guilty verdict that should not have been. If this issue had been
fairly presented it is more than likely than not that no reasonable juror would have
convicted the Applicant. The fundamental elements of fairness were disregarded in this
trial. It was error for courts to dismiss this claim by procedural default when general
citation to a state decision whose holding is prominently predicated on federal precedent
is sufficient. If a petitioner fails to demonstrate cause and prejudice for the default, the
federal habeas court may still review an otherwise procedural default claim upon a
showing that failure to review the federal habeas claim will result in a "Miscarriage of
Justice." Porter v. Horn, 276 F. Supp. 2d. 278. The procedural default doctrine selfevidently is limited to cases in which a default actually occurred. If Applicant essentially
complies with the state rule in question or made a reasonable and good faith effort to do
so, there is no justification for federal abstention and most or this federal court will not
find a default. The procedural default doctrine thus does not apply if Applicant effectively
complied with state rule which has been done.
Applicant has not failed to exhaust state court remedies for claim one. Applicant has
not procedurally defaulted this claim either. Applicant has shown that this argument was
not just based entirely on state law and that it was based on both state and federal law
with multiple examples given. Applicant has shown that the state court fact findings are
not sufficiently apparent or definite. The state court fact findings are not factual because
15
the methodology and science is not sufficiently developed to permit admission of DNA
from mixtures. Thus rendering these state court fact findings incomplete. These fact
findings were also not made following an evidentiary hearing. They were not made in a
fair manner. Applicant has demonstrated cause and prejudice for the default. The denial
of this issue has resulted in a miscarriage of justice. This court should deem presumption
rebutted because Applicant has shown by clear and convincing evidence that state
courts fact findings are erroneous. This conviction should be reversed and the case
remanded for a new trial.
Argument 2.
Respondent's claim Argument 2 was procedurally defaulted because his state-court
argument on this issue had been based entirely on state law, not federal law and a brief
citation to the Fifth and Fourteenth Amendments at the conclusion was insufficient to put
the state court on notice that Applicant was raising a federal constitutional claim.
In determining whether a petitioner has fairly presented federal constitutional
claims to the courts, a habeas court must consider whether the petitioner relied upon
state cases employing the federal constitutional analysis in question. Blalock v. Wilson
2005 U.S. Dist. Lexis 9418. Applicant has alleged facts well within the mainstream of the
pertinent constitutional law. Blackmon v. Booker, 394 F. 3d 399. Once again Applicant will
demonstrate how he relied upon state cases employing the federal constitutional
analysis in question.
1. People v. Quintana, 882 P.2d 1366, 1371 (Stating federal case laws)
-
Huddleston v. United States, 485 U.S. 681, 687 CRE 404(b) prohibits the
16
introduction of extrinsic act evidence.
Dandridge v. Williams, 397 U.S. 471, 475
-
Further on appeal a party may defend the judgment of the trial court on any
ground supported by the record, regardless of whether that ground was relied
upon or even contemplated by the trial court.
-
To also argue the introduction of evidence People v. Quintana states: See 22
Charles A. Wright and Kenneth W. Graham Jr., Federal Practice and Procedure
§5239, at 436. united States v. Aleman, 592 F.2d 881, 885 (5th Cir. 1979); Cf.
nited States v. Williford. 764 F.2d 1493. 1498 (11th Cir. 1985
People v. Stewart, 55 P.3d 107, 122
-
The Fourteenth Amendment to the United States Constitution provides in part
that no state shall deny to any person within its jurisdiction the equal protection of
laws. United States v. Batchelder, 442 U.S. 114
People v. Martinez, 74 P.3d 316
-
The admissibility of evidence must be evaluated in light of its offered purpose. In
re Poali R.R. Yard PCB Litigation, 35 F.3d 717, 743
Applicant did cite a constitutional provision. Pg.26 line 1-3 "The prejudicial impact
of the evidence is apparent and denied Mr. Davenport his constitutional right to a fair
trial. U.S. Const. Amend. V and XIV." Applicant also cites case law with the argument of
why the theory of res gestae should be rejected. (Pg.26 of Direct Appeal Appendix J).
Cassidy v. State, 74 Md. App. 1, 536A.2d 666. 670; United States v. Matot, 146 F.2d
17
197,198; Stephens v. Miller. 13 F.3d 998; Miller v. Keating, 745 F.2d 507, 509; Hilyerv.
Howat Concrete Co., 578 F.2d 422; State v. Williams, 673 S.W. 2d 32,34; People v.
Giles, 635 N.E. 2d 969,975; People v. Hill, 663 N.E. 2d. 503, 506; Kansas v. Gunby, 144
P.3d 647 (KS 2006); Bynote v. National Super Markets, Inc., 891 S.W. 2d 117,121 (MO
1995); State v. Long, 801 A.2d 221. Opinions of Kansas Supreme Court. See Dennis D.
Prater & Virginia M. Klemme, Res Gestae Raises Its Ugly Head, 65 J. Kan. B.A. 24 Oct
1992. See also Chris Blair, Let's Say Goodbye to Res Gestae, 33 Tulsa L.J. 349, 354-55
(1997). See Lawrence M. Zavadil, "Res Gestae Evidence," 24 Cob. Law.
Respondent is in error to say that Applicant did not present this claim as a
violation of federal constitution. It was not just a conclusory citation at the end of a state
argument. It was an argument that res gestae should be rejected. Applicant states in his
direct appeal how federal courts have abandoned the res gestae concept. The Seventh
Circuit described res gestae as "essentially obsolete." Stephens v. Miller. According to
the Sixth Circuit res gestae is a term to describe background evidence or prior acts that
are not otherwise admissible under Federal Rules of Evidence.United States v. Lawson
81 Fed. R. Evid. Serv. (Callaghan) 324. The Sixth Circuit explicitly rejected the use of res
gestae in Higgins. Warden, 715 F.2d 1050. In that case the Sixth Cir. Refused to extend
res gestae to include an exception to hearsay rule. Res Gestae should not be a theory of
admissibility in Colorado, especially not for the type of acts at issue in this case. Not only
is res gestae dead in the minds of learned judges and federal courts, a commentator has
declared it dead in Colorado civil cases as well. See Lawrence M. Zavadit, "Res Gestae
Evidence," 24 Cob. Law 1567 (July 1995). A member of the court of appeals suggested
10
that the better course of action would be to require "that all evidence of other acts
including intrinsic res gestae evidence as well as other extrinsic evidence, be subjected
to the requirement of CRE 404(b)." People v. Aqado, 964 P.2d 565,570.
Applicant also argues that denominating an act "res gestae" does not make the
act automatically admissible. The evidence must be linked in time and circumstance to
the charged crime, must form an integral and natural part of the crime. The evidence
must be integral to the criminal episode or transaction. It should also provide necessary
background for the charged offense. The probative value must not be substantially
outweighed by the danger of unfair prejudice. The evidence must be so closely
connected to the main fact that it comprises a part of the transaction and the knowledge
of which must be necessary to a full understanding of the main fact. The evidence must
be relevant and here it was not. Mr. Zimmer did not identify Applicant as the individual
who made either statement. At most he testified that two individuals unknown to him,
who he was never asked to identify made certain statements and therefore the evidence
was not relevant as it did not make the existence of any fact of consequence more or
less probable. If Statements made are not in their nature a part of the occurrence, they
do not constitute a part of res gestae and are inadmissible. Whetherbee v. Safety
Casualty Co. 219 F.2d 274.
The Colorado Supreme Court has recently clarified its rejection of the application
of evidentiary principles which have been rejected or not codified within the Colorado
Rules of Evidence ("C.R.E."). See e.g. People v. Flippo, 159 P.3d 100, 106 (Cob. 2007);
People v. Ramirez, 155 P. 3d 371 (Cob. 2007). The res gestae doctrine is exemplary of a
19
doctrine that has been excluded from the C.R.E. Evidentiary questions in Colorado
should be determined pursuant to the C.R.E. even where there are pre-existing common
law doctrines on related evidentiary issues. This Court should reject the admission of any
evidence pursuant to the res gestae doctrine in light of its unworkability, and its tendency
towards an arbitrary and capricious application.
As in Argument 1, Respondent is in error to state that a conclusory citation to
constitutional provision is insufficient. If a petitioner cites to a specific provision of the
U.S. Const. in his state court brief, the petitioner has fairly presented his constitutional
claim to state court. Davis v. Strack, 270 F.3d 111. Applicant has continued to show that
this claim was presented as a federal constitutional violation.
In a criminal trial, a mandatory presumption violates due process because it
relieves the prosecution from proving the inferred fact beyond a reasonable doubt. Jolly
v. People, 742 P.2d 891; Francis v. Franklin, 471 U.S. 307, 105 S.CF. 1965; Sandstorm v.
Montana, 442 U.S. 510, 99 S.Ct. 2450. It is unconstitutional because it shifts the burden
of persuasion from the prosecution to the defendant on an essential element of the
offense. Carella v. California, 491 U.S. 263, 109 S.Ct. 2419. A jury may be instructed on
a presumption only if the instruction is phrased as a "permissible inference." In contrast
to the permissible inferences are those presumptions that shifts the burden of proof onto
the defendant, thereby violating due process. Sandstorm, supra. Any instruction that
shifts onto the defendant the burden of proving a critical fact in an issue is constitutionally
impermissible. Mr. Zimmer's hearsay statements lead to an inconclusive presumption.
The fact that the prosecution did not give the jury a permissible inference instruction after
20
or before allowing Mr. Zimmer to testify to his statements was a clear violation of due
process and a right to a fair trial.
Applicant has continued to show that this claim was presented as a federal
constitutional violation and not just a conclusory citation at the end of an argument. See
Appendix J Pg. 26-29 The Theory of Res Gestae Should Be Rejected. Applicant has
once again shown that the courts made a blatant abuse of discretion to allow these
hearsay statements to be presented on trial as res gestae. This claim is not a procedural
default. The procedural default doctrine self-evidently is limited to cases in which a
default occurred. Applicant has essentially complied with the state rule in question and
made a reasonable and good faith effort to do so. There is no justification for federal
abstention and the courts should not find default. Like Applicant's direct appeal to the
state court, his habeas petition pursuant to 28 U.S.C.S. §2254 set forth the substance of
his federal claims. For the same reasons this language was sufficient to alert the
Colorado state court, it was sufficient to fairly present the federal claim to the Federal
District court pursuant to 28 U.S.C.S. §2254. The substance of the federal claim was set
forth on the face of the petitions. Accordingly, the state courts were given a full and fair
opportunity to resolve Applicant's constitutional claims in arguments 1 and 2 and these
claims are therefore exhausted. See O'Sullivan, 526 U.S. at 845. The district court erred
in concluding a procedural default as to claims I and 2 of habeas petition. Because
claims 1 and 2 were exhausted in the state courts, the procedural bar applied by the
district court is inapplicable to these claims and the claims must be addressed on the
merits. Applicant has shown cause for and prejudice and failure to reach merits would
21
constitute a miscarriage of justice. A federal hearing is needed and the appropriate relief
is required.
Argument 3a.
Courts claim that in rejecting Applicants tendered instruction on eyewitness
identification, the court committed no error.
This particular instruction was tendered for a specific. To pinpoint and highlight
specifics in the model instruction that were highly particular to the issues of this case. To
also exclude the extraneous particular of the instruction not necessarily needed.
Strategically implementing this tendered instruction was employed for strategic defensive
purposes that were needed in this Defense of Misidentification by the Applicant. This was
a blatant abuse of discretion by the court. Failure to give a particular charge as
requested is reviewed for an abuse of discretion. United States v. Frost, 914 F.2d
756,764. It was a plain error to deny Applicant this tendered instruction, which
consequently rendered this trial fundamentally unfair. Estell v. McGuire, 502 U.S. 62, 73.
A defendant is entitled to an instruction as to any recognized defense for which there
exist evidence sufficient for a reasonable jury to find in his favor. In the context of jury
instructions, fundamentally fairness requires that a criminal defendant be provided a
meaningful opportunity to present a complete defense. Incorrect jury instructions may
divest a defendant of this opportunity. SeeMathews v. United States, 484 U.S. 58, 63.
Applicant was stripped of this opportunity to present a complete defense by denying jury
instructions.
Respondent asserts that if the trial court committed constitutional error in omitting
22
a jury instruction, the federal habeas court must determine whether the error was
harmless. Structural defects in the constitution of the trial mechanism, which defy
analysis by "Harmless Error" standard, if exist requires automatic reversal of the
conviction because they infect the entire trial process. Brecht v. Abrahamson, 507 U.S.
619, 638. The requirement that harmlessness of federal constitution error be clear
beyond reasonable doubt embodies the standard requiring reversal if there is a
reasonable possibility that the evidence complained of might have contributed to the
conviction. Yates v. Evatt, 500 U.S. 391. Applicant has continued to show that this error
had a substantial and injurious effect on the jury's verdict.
This case was overwhelming with so many specifics in multiple areas. DNA
issues, missing witnesses, GSR, expert witness testimony, etc. Failure by the courts and
failure by Applicant's counsel formed a cumulative effect by not allowing Applicant a
complete defense had a tremendous effect on the framework of this trial. More and
different specifics were given in Applicant's first trial resulting in a hung jury. Applicant
was stricken in this second trial by the courts denial of this tendered instruction which
was part of his defense. Not allowing this tendered instruction to pinpoint and highlight
specifics in the modeled instruction that were highly particular to the issues of this case,
giving the jury a clear and cut understanding of what was required clearly had a
substantial and injurious effect on the jury's unwarranted guilty verdict. Applicant
maintains that courts dismissal of this issue was in error. The court's refusal to give an
identity instruction when counsel specifically requested was erroneous and the refusal
violated Applicant's right to a fair trial and due process of law as guaranteed by the U.S.
23
Const. Amend. V, XIV which requires reversal and a new trial.
Argument 3b.
Court claims that even if the failure to give the Applicant's missing witness
instruction was constitutional error, the error was harmless.
The court acknowledges a constitutional error but claims this error to be
harmless. Where it appears that an error or omission in jury instructions is due to
inadvertence or attorney incompetence, the reviewing court should apply the doctrine of
plain error. Davis v. Wakelee, 156 U.S. 680, 689. The court in this case did not find
beyond a reasonable doubt that the failure to give this instruction did not contribute to the
jury's verdict. As stated earlier, the requirement that harmlessness of federal constitution
error be clear beyond reasonable doubt embodies the standard requiring reversal if there
is a reasonable possibility that the evidence complained of might have contributed to the
conviction. Yates v. Evatt, 500 U.S. 391. The court must ask what evidence the jury
actually considered in reaching its verdict. In this trial the jury heard statements about
defendant's brother, another suspect and a missing witness. Failure to give the jury a
missing witness instruction as to why this was, left grave holes in this trial. Blanks in the
minds of the jurors, unanswered questions about someone involved who was not at the
trial. The courts abuse of discretion by not allowing this instruction striped the Applicant's
right away to present a complete defense. A defendant is entitled to an instruction as to
any recognized defense for which there exist evidence for a reasonable jury to find in his
favor. Mathews v. United States, 485 U.S. 58. This was clearly evidence to be used in
Applicant's favor. The absence of this missing witness was due solely to the actions of
24
the People as explained in Applicants §2254 Pg.11. Structural errors are structural
defects in the constitution of the trial mechanism, therefore these errors defy analysis by
harmless standard. Delgado v. Rice, 67 F. Supp. 2d 1148. The fundamental fairness of
this trial has been abused. Refusal to instruct the jury that the identification must be
proven beyond a reasonable doubt is unconstitutional as it lowers the People's burden of
proof. The court's refusal to give the missing witness instruction when counsel
specifically requested was erroneous and so infected the entire trial that the resulting
conviction violated Applicant's right to a fair trial and due process of law as guaranteed
by the U.S. Const. Amend. V and XIV. The court was in error in denying this claim and
this court should apply the appropriate relief in this matter.
Argument 4.
The court has erred in denying relief for Applicants claim that he was denied his
constitutional rights when prosecution allowed a witness to identify him for the first time
at trial.
Prior to trial Applicant argued that Mr. Williamson should not be allowed to make
an in-court identification. He was never shown a photo array. Never made any prior
identification. If an in-court identification is based on an unnecessarily suggestive out of
court identification so that the in-court identification is unreliable, a defendant is denied
due process of law.-Manson v. Brathwaite, 432 U.S. 98. The court refused to adapt a per
se exclusionary rule when the identification is based upon a trial setting. The court relied
on the fact that the witness volunteered the identification. The court failed to properly
apply the law. If it had, it would not have allowed the first time in court identification. The
25
fact that the witness volunteered the information does nothing to overcome the inherent
suggestiveness of the trial setting. Although this suggestiveness may not warrant a per
se rule, it does require specific findings by the court to overcome the suggestiveness.
The court erred in failing to fully apply the five factors set forth in People v. Monroe, 925
P.2d 767. Because the record is fully developed, the courts should have applied those
factors and held that the trial court erred in allowing the in-court identification and by
allowing the in-court identification, the trial court violated Applicant's right under U.S.
Const. Amend. VI.
To state that Applicant's use of case law Neil/Brathwaite is inapposite in cases...
in which the police engage in no improper conduct, and because Applicant does not
assert that an eyewitness's identification was tainted by an allegedly unreliable police
procedure, these cases are inapposite for purposes of review is in error. This does not
allow the courts to excuse the prosecution for using an unduly suggestive first time
identification at trial. Law enforcement officers engaged in improper conduct and
unreliable police procedures when they failed to have a key witness make any pretrial
identification or follow ups of any sort. This only magnifies fault by prosecution to
continue to use this witness with this information already known. The principle that a
state may not knowingly use false evidence, including false testimony to obtain a tainted
conviction implicit in any concept of ordered liberty, does not cease to apply merely
because the false testimony goes only to the credibility of the witness. The jury's
estimate of the truthfulness and reliability of a given witness may well be determinative of
guilt or innocence and it is upon such subtle factors as the possible interest of the
WR
witness in testifying falsely that the defendant's life or liberty may depend. It is of no
consequence that the falsehood may bear upon a witness credibility rather than directly
upon a defendant's guilt. A lie is a lie, no matter what its subject and if it is in any way
relevant to the case. The prosecution has the responsibility and duty to correct what he
knows to be false and elicit the truth. A conviction obtained through use of false
evidence, known to be such by representatives of the state must fall under U.S. Const.
Amend. XIV. The same result obtains when the state, although not soliciting false
evidence, allows it to go uncorrected when it appears. Napue v. Illinois, 360 U.S. 264.
The court cites Wood v. Donald, stating, where no Supreme Court addresses the
specific question presented by a habeas claim the state court decision cannot have been
contrary to any Supreme Court case. Applicant no only stated Neil/Brathwaite but cites
Moore v. Illinois, 434 U.S. 20, arguing that the observation of Applicant at the first trial
was akin to a one-on-one show up and was presumptively unduly suggestive. When the
reliability of eyewitness identification testimony is usually an issue for jury determination,
when the degree of unreliability leads to a very substantial likelihood of irreparable
misidentification, the tainted testimony must be excluded to preserve the defendants due
process rights. The Due process Clause protects accused individuals from the use
against them of evidenced derived from impermissibly suggestive procedures. The
graveman of the determination is fairness and reliability. The reliability of Mr. Williamson's
testimony after two years and not having any prior identification is not reliable.
To state that prosecution presented substantial evidence of Applicant's guilt does
not nullify that Applicant has presented substantial evidence of a trial infected by many
27
errors and violations of law and constitution. Applicant has shown and proved the
substantial and injurious effect this error had on the verdict. The elements of fundamental
fairness have been violated. The courts have erred by not applying the appropriate relief
warranted. Failure to correct this error will constitute a Miscarriage of Justice. Applicant
ask this court to apply the appropriate relief to reverse the court's decision and an
evidentiary hearing as need be.
Argument 5.
Counsel was ineffective for failing to call an expert witness to undermine the
reliability of eyewitness identification.
Applicant has defended this case from the beginning as one of mistaken identity.
With no physical evidence definitively linking Applicant to the crime, the case turned on
the reliability of the prosecutor's eyewitnesses. In the first trial Applicant's retained
counsel Ms. Cynthia Sheehan and Mr. Richard Hostetler presented the testimony of Dr.
Edith Greene, a professor of psychology at the University of Colorado, who has focused
her career on evaluating the accuracy of eyewitness memory/identification. The jury that
heard Dr. Greene's testimony was unable to convict Applicant on any charges.
On retrial Applicant was represented by two deputy state public defenders. They
did not present expert testimony addressing the reliability issue of eyewitness
identification and the jury convicted Applicant on all charges.
The primary focus of Applicant's issue here, is that given the evidence in this
case, not calling or consulting a witness who is an expert in the reliability issue of
eyewitness identification fell below a reasonable standard of care. In a habeas corpus
action, where the district court relied exclusively on the state court record and did not
hold an evidentiary hearing, the appellate courts review is plenary. Hughes v. Beard,
2007 U.S. Dist. Lexis 71252. The denial of appellate court to reverse the decision is a
violation of Applicant's constitutional right of the 14th Amendment of due process. If the
court's decision is unreasonable in light of evidence presented in the state court
proceeding, habeas relief is warranted. Hughes v. Beard, supra.
Applicant did fairly present courts with argument that counsel was ineffective for
failing to call an expert witness. This failure fell below an objective standard of care.
Applicant specifically alleges: 1. The file of the public defender reveals no strategic
reason for the omission. 2. That under the facts of this case there could be no strategic
reason for the omission. 3. That the public defender's file does not suggest any decision
that was made was based on monetary, rather than sound trial strategy. 4. The failure to
present such testimony prejudiced Applicant as is evidenced by the failure of the first jury
to convict.
The district courts order finding trial counsel made a strategic decision in not
presenting expert testimony is not supported by the record. 2nd prong of Strickland has
been proven. Applicant has continued to show the courts specific facts to prove a
reasonable probability, a probability sufficient to undermine confidence in the outcome,
that but for counsel's deficient performance, the results of the trial would have been
different. Petitioner can rebut 'the presumption of correctness by clear and convincing
evidence, 28 U.S.C.S. §2254(e)(1) by way of evidentiary hearing in federal court as long
as he satisfies the necessary prerequisites Lambert v. Blackwell, 387 F.3d 210, 236. The
WE
XI
defensive strategy of misidentification was employed by both sets of attorneys for both
trials, with basically no new evidence and the same witnesses being used. The exception
being that in the first trial an I.D. Expert was employed with the results being a mistrial.
During the second trial no I.D. Expert was employed and the result was a guilty verdict.
This demonstration clearly shows that counsel was ineffective.
State rule is not adequate basis for denying federal relief. Federal courts should
have deemed presumption rebutted because Applicant has shown by clear and
convincing evidence that state court fact-findings are erroneous. Applicants due process
right of the 14th Amendment have been violated.
CONCLUSION
When a federal district court reviews a state prisoners habeas petition pursuant
to 28 U.S.C.S. §2254 it must decide whether the petitioner is in custody in violation of
the Constitution or laws or treaties of the United States. The court does not review a
judgment, but the lawfulness of the petitioner's custody simpliciter. Coleman v.
Thompson, 501 U.S. 722.
The United States Supreme Court requires a prisoner who challenges (in a
federal habeas court) a matter adjudicated on the merits in state court to show that the
relevant state-court decision (1) was contrary to, or involve an unreasonable application
of, clearly established federal law, or (2) was based on unreasonable determination of
facts in light of the evidence presented in the state court proceeding. 28 U.S.C.S.
§2254(d). Deciding whether a state courts decision involved an unreasonable
application of federal law or was based on an unreasonable determination of facts
30
.11
requires a federal habeas court to train its attention on the particular reasons, both legal
and factual, why state courts rejected a state prisoner's federal claims, and to give
appropriate deference to that decision. Wilson v. Sellers, 138 S.Ct 1188
The law has long recognized that when there are many errors that, in and of
themselves do not warrant relief, the cumulative impact of such errors can result in
denial of the fundamental constitutional right to a fair trial. The guilt of the accused in no
way lessons the duty to see that due process is afforded him in the course of his
prosecution. Accord, Fisher, 282 F.3d at 1299. ("...cumulatively, each failure
underscores a fundamental lack of formulation and direction in presenting a coherent
defense.") There can be no doubt that when considered cumulatively, these errors
undermine confidence in the outcome of the trial and mandate vacating the conviction.
Applicant is asking this court to review these issues in the interest of justice in
pursuit of relief upon which he is entitled based on the merits of his claims. The state
courts have committed grave error in violating Applicant's Constitutional Rights. The
failure of the Federal Courts to reach merits have constituted a miscarriage of justice.
The failure of the Federal Courts to effectively expose the state's violations and errors
qualify applicant's relief pursuant to a reversal of his conviction with prejudice and
release from state custody. Appropriately this court must order an evidentiary hearing if
need be which and through the assistance of court appointed counsel, Applicant mat be
provided a sufficient opportunity to obtain full discovery and witness testimony relating
to the facts on this action and the law. Counsel and assistance will be required to aid
Applicant in the investigation and any amendment of these claims. The petition for a writ
31
of certiorari should be granted.
Respectfully submitted,
q-i3 -/
Date:
/!
William Davenport
CDOC# 135683
Sterling Correctional Facility
12101 State Highway 61/ P0 BOX 6000
Sterling, CO 80751
32
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.