Reply Brief — Nicholas Alexander Davis, Petitioner v. Tommy Sharp, Interim Warden

No. 19-8814

IN THE

Supreme Court of the United States

NICHOLAS ALEXANDER DAVIS,

Petitioner,

v.

TOMMY SHARP, WARDEN,

OKLAHOMA STATE PENITENTIARY,

Respondent.

Reply to Brief in Opposition to the Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

THOMAS D. HIRD,

Counsel of Record

MICHAEL W. LIEBERMAN

Office of the Federal Public Defender

Western District of Oklahoma

Capital Habeas Unit

215 Dean A. McGee, Suite 707

Oklahoma City, Oklahoma 73102

(405)609-5975

Tom_Hird@fd.org

Michael_Lieberman@fd.org

September 9, 2020

TABLE OF CONTENTS

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

i

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT

Abdul-Kabir v. Quarterman,

550 U.S. 233 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ake v. Oklahoma,

470 U.S. 68 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Barefoot v. Estelle,

463 U.S. 880 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

Bosse v. Oklahoma,

137 S.Ct. 1 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Booth v. Maryland,

482 U.S. 496 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4

Brumfield v. Cain,

576 U.S. 305 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Buck v. Davis,

137 S.Ct. 759 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Burger v. Kemp,

483 U.S. 776 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Cooper v. Oklahoma,

517 U.S. 348 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Eddings v. Oklahoma,

455 U.S. 104 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Gardner v. Florida,

430 U.S. 349 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ii

Lafler v. Cooper,

566 U.S. 156 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Maynard v. Cartwright,

486 U.S. 356 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Payne v. Tennessee,

501 U.S. 808 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 4

Spaziano v. Florida,

468 U.S. 447 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Thompson v. Oklahoma,

487 U.S. 815 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Woodson v. North Carolina,

428 U.S. 280 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

FEDERAL CASES

Dodd v. Trammell,

753 F.3d 971 (10th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATE CASES

Davis v. State,

268 P.3d 86 (Okla. Crim. App. 2012) . . . . . . . . . . . . . . . . . . . . . . . 3

MISCELLANEOUS CITES

Tomlin v. Patterson, Case No. 19-7127,

Petition for Rehearing filed June 25, 2020 .. . . . . . . . . . . . . . . . . . 5

iii

Udell, Julia. Certificates of Appealability in Habeas Cases in the United

States Court of Appeals for the Eleventh Circuit: A Study

(December 24, 2019) https://ssrn.com/abstract=3506320 . . . . . . . 5

Valle, Luis Angel. Certificates of Appealability as Rubber Stamps,

SSRN No. 3576026 (April 14, 2020), available at

https://ssrn.com/abstract=3576026 . . . . . . . . . . . . . . . . . . . . . . . . . 5

iv

CAPITAL CASE

REPLY TO BRIEF IN OPPOSITION

Respondent does not dispute that at Mr. Davis’s capital sentencing,

the State was allowed to present the following evidence about victim

Marcus Smith:

1. he was a good kid, which is why family members questioned

why this happened to him;

2. he was enrolling in Job Corp., and was getting his life

together so he could support himself and others;

3. he had initiative and was always asking if anyone had any

work to do so he could make extra money;

4. he was a good church member who served breakfast every

Saturday, cut grass and cleaned up around the church; and

5. he had a strong faith in Jesus Christ and taught his

nephews valuable life lessons.

Respondent also does not dispute that Mr. Davis was not allowed to

cross-examine the State’s witnesses’ testimony regarding the same or

present evidence showing the following information about victim Marcus

Smith:

1. he was a member of a violent street gang known as the

Rollin’ 90’s Crips;

2. he abused animals by encouraging his dog to kill a kitten

and to fight with other dogs;

3. he assaulted a former employer in the former employer’s

home;

4. he broke the former employer’s television and DVD player

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when he refused to give Smith money or beer;

5. he burglarized a sixty-two-year-old woman’s home at night

when she was at home in her bedroom; and

6. he burglarized a fifty-year-old’s home on a Sunday church

morning when the victim was at home.

Given that victim-impact evidence is probative of a “defendant’s

moral culpability and blameworthiness,” and the sentencing jury was told

to consider the unique loss to society and the family pursuant to this

Court’s precedent, the trial court’s error rendered Mr. Davis’s sentencing

proceedings fundamentally unfair and violated this Court’s jurisprudence

regarding mitigating evidence. Payne v. Tennessee, 501 U.S. 808, 822-85

(1991).

For four years prior to the issuance of Payne, victim-impact evidence

was unconstitutional. See Booth v. Maryland, 482 U.S. 496 (1987). The

way victim-impact evidence was able to go from unconstitutional to

constitutional was to allow “the benefit of cross-examination and contrary

evidence by the opposing party.” Payne, 501 U.S. at 823 (quoting Barefoot

v. Estelle, 463 U.S. 880, 898 (1983)); see also Booth, 482 U.S. at 506 (citing

concerns about the provision of a fair opportunity to counter and rebut

such evidence). The failure to provide Mr. Davis any opportunity to

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counter and rebut the State’s victim-impact evidence was gravely and

fundamentally unfair.

The Oklahoma Court of Criminal Appeals (OCCA) incorrectly found

Mr. Davis’s evidence “simply not relevant,” and went on to incorrectly

opine that a constitutional violation was not “possible.” Appendix E; Davis

v. State, 268 P.3d 86, 128 (Okla. Crim. App. 2012). As this Court well

knows, Oklahoma state courts have a long history of flouting the

constitutional protections afforded capital defendants. See, e.g., Eddings

v. Oklahoma, 455 U.S. 104 (1982); Ake v. Oklahoma, 470 U.S. 68 (1985);

Thompson v. Oklahoma, 487 U.S. 815 (1988); Maynard v. Cartwright, 486

U.S. 356 (1988); Cooper v. Oklahoma, 517 U.S. 348 (1996). The OCCA’s

history of intransigence regarding victim-impact issues is especially bad.

In Bosse v. Oklahoma, 137 S. Ct. 1, 1-2 (2016) (per curiam), for example,

this Court had to chastise the OCCA for refusing to follow the parts of

Booth that had specifically not been overruled by Payne.1 Notably, the one

tenet shared by both Booth and Payne is that a capital defendant “must

1

See also Dodd v. Trammell, 753 F.3d 971, 997-98 (10th Cir. 2013)

(noting ten violations of that clearly-established victim-impact law prior

to the issuance of Bosse).

3

be given the chance to rebut [victim-impact] evidence.” Booth, 482 U.S. at

507 (citing Gardner v. Florida, 430 U.S. 349, 362, (1977) (opinion of

Stevens, J.); Payne, 501 U.S. at 823 (quoting Barefoot v. Estelle, 463 U.S.

880, 898 (1983).

Like the OCCA, the federal district court was confused about this

Court’s clearly established law, calling Davis’s proposed evidence

“irrelevant.” Appendix C at 25-27. The district court also found the

manifest injustice of the trial court turning Payne v. Tennessee on its head

did not cause Mr. Davis to be deprived of a “fundamentally fair trial.” Id.

These issues are eminently debatable among jurists of reason and warrant

further encouragement under the law.

Respondent essentially asserts certiorari is unattainable in modern

habeas

corpus,

and

imagines

insurmountable

hurdles

making

presentation of certificate of appealability (COA) issues all but impossible.

The Court knows this is not so. See, e.g., Buck v. Davis, 137 S. Ct. 759

(2017); Brumfield v. Cain, 576 U.S. 305 (2015); Lafler v. Cooper, 566 U.S.

156 (2012); Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007).

The problems laid out in Davis’s petition regarding COAs are real,

4

and they are not going away. The issues have been greatly studied,

researched, and briefed. See, e.g., See Julia Udell, Certificates of

Appealability in Habeas Cases in the United States Court of Appeals for

the

Eleventh

Circuit:

A

Study

(December

24,

2019),

https://ssrn.com/abstract= 3506320 (last visited September 8,2020); Luis

Angel Valle, Certificates of Appealability as Rubber Stamps, SSRN

No.3576026

(April

14,

2020),

available

at

https://ssrn.com/abstract=3576026 (last visited September 8, 2020);

Tomlin v. Patterson, United States Supreme Court, No. 19-7127, Petition

for Rehearing, filed June 25, 2020. The Tomlin petition for rehearing is

particularly helpful in showing the numerous dimensions of arbitrariness

in the COA process, and proving the vast differences in COA procedures

and resolutions among different circuit courts around the country.

Respondent makes various arguments, but not in regard to this

Court’s duty to search for constitutional error with painstaking, exacting

care in capital cases. Burger v. Kemp, 483 U.S. 776, 785 (1987). In 1984,

every member of the Court had “written or joined at least one opinion

endorsing the proposition that because of its severity and irrevocability,

5

the death penalty is qualitatively different from any other punishment,

and hence must be accompanied by unique safeguards to ensure that it is

a justified response to a given offense.” Spaziano v. Florida, 468 U.S. 447,

468 (1984) (Stevens, J., concurring in part and dissenting in part). To be

sure, “[d]eath, in its finality, differs more from life imprisonment than a

100-year prison term differs from one of only a year or two.” Woodson v.

North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion). The COA

process is broken, and along with it the Great Writ. There is something

very wrong when an issue as striking as the victim-impact issue in this

capital case is unable to go forward on appeal.

This Court should grant certiorari to address the questions

presented, provide the guidance requested, and additionally assure the

Constitution is enforced in this capital case and others throughout the

country.

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Respectfully submitted,

s/Thomas D. Hird

THOMAS D. HIRD, OBA # 13580*

MICHAEL W. LIEBERMAN, OBA #32694

Assistant Federal Public Defenders

Office of the Federal Public Defender

Western District of Oklahoma

215 Dean A. McGee, Suite 707

Oklahoma City, Oklahoma 73102

(405) 609-5975 Phone

(405) 609-5976 Fax

Tom_Hird@fd.org

Michael_Lieberman@fd.org

ATTORNEYS FOR PETITIONER

NICHOLAS ALEXANDER DAVIS

*Counsel of Record

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