Opposition Brief — Leon Davis, Jr., Petitioner v. Florida, et al.

No. 23-7764

In The

Supreme Court of the United States

LEON DAVIS, JR.,

Petitioner,

V.

STATE OF FLORIDA, AND SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Lower Court No. SC2021-1779, SC2022-0883 (BP)

RESPONDENTS’ BRIEF IN OPPOSITION

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

C. SUZANNE BECHARD

Associate Deputy Attorney General

Counsel of Record

MICHAEL W. MERVINE

Senior Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

carlasuzanne.bechard@myfloridalegal.com

capapp@myfloridalegal.com

(813) 287-7900

COUNSEL FOR RESPONDENTS

Capital Case

QUESTION PRESENTED

Whether this Court should grant certiorari review of the Florida

Supreme Court’s decision and analysis that trial counsel’s performance

was not ineffective under Strickland v. Washington, where there is no

misapplication of the law and there is no conflict with this Court’s

jurisprudence, or any state court of last resort?

TABLE OF CONTENTS

QUESTION PRESENTED... ccc ccccceccsscsssecceccccseecceecscccsussecassonseccracersaseesuesesasesersenes li

Whether this Court should grant certiorari review of the Florida Supreme

Court’s decision and analysis that trial counsel’s performance was not

ineffective under Strickland v. Washington, where there is no

misapplication of the law and there is no conflict with this Court’s

jurisprudence, or any state court of last reSOrt? ............ccccccccsesccsccessseseeceessseeenensaes 11

TABLE OF CONTENTS ............ccccsccccccssecssssseceeccecceccccsececscsscsesssssnsneucceseeseersuseneesess iil

TABLE OF CITATIONS 7.00.0... cccccccccccccsssssssceseeeseesencesecceceeesecnsscsuseeceseseceessessseeeeeess lv

CITATION TO OPINION BELOW.....0........cccccccccsssseecesssssssssccceecseseccsssecsteaseeseesesereetees 1

STATEMENT OF JURISDICTION... ccsccccccesesssessssncceeescceseuccussssseneeeeeeseesnses 1

CONSTITUTIONAL PROVISIONS INVOLVED ............ccceeccccccccescesessssessssenseeeeeneneesees 1

STATEMENT OF THE CASE AND FACTS............ccccccccccessscsceccesscsscssssssssescessneeeeeesens 2

REASONS FOR DENYING THE WRIT ...00.........ccccccesseceeeessseseesesescscescesessecesecesseeeseeseas 5

I. The Florida Supreme Court’s determination that trial counsel was not

ineffective under Strickland was proper and does not conflict with this

COULT’S JULISPLUCENCE. .............ccccscecsnnscnssnscceesesseseeseceecceccccecenceseecsccceccceueceeuueueueneeeeeags 5

A. The Florida Supreme Court properly analyzed trial counsel’s

strategic decisions in light of the circumstances trial counsel faced at the

time Of trial. ooo... eccecessssseeeeseecessesasseseeeeeecceseeecccesssueseusseceseeeeeseecessusteaneeeeseneeeeeans 6

B. Trial counsel’s strategic decisions were informed by a reasonable

pretrial InVeStigatiONn. ..........ccccccscccesesseeessneeecsssceeeeesssseccesueecsseeeseeceeuvenseeeuseusseesusese 8

C. Because Davis made an insufficient showing that trial counsel’s

performance was deficient, Florida’s highest court was not required to

engage in Strickland prejudice analySis. ..............cccccccessssccccesecenseenccnceeceeeeteneenens 10

CONCLUSION ooo ceceeeeeceeseeseeneaneesaeeasesneesaeessseesaneesseesseeseeessueeseasaecseessessasesaes 11

TABLE OF CITATIONS

Cases

Davis v. Florida,

581 U.S. 1020 (2017) ...... ccc ccesscceccecceeccessssscssscccsccssensesccescnsrsnsacececeeecereetesieceseeeenss 4

Davis v. State,

207 So. 3d 142 (Pla. 2016) ..........cccccccccesccececcccceecesseeceeeeeceseuecesesseesessssesssssssaasaesessseeneeaas 3

Davis v. State,

207 So. 8d 177 (Fla. 2016)... ecccccecccscceceecececsceccsecseceuccccccecceeusaususaueusausaasseseeceesees 4

Davis v. State,

383 So. 3d 748 (Fla. 2024)... cccccsssssssscsssnsescnnecceeeeceeceeeseeseescscesceeseuecueeanens passim

Harrington v. Richter,

B62 U.S. 86 (2011) 0... ccc essssssssssssssssnsssseessesseecsacssceceescececcescuseuueeceueueuueneneneees 5, 8

Kimmelman v. Morrison,

ATT U.S. 365 (1986) ........cccccccccccsssssssseseeeseeseeeessessssesceeeneecescecesesseeacesessusensrenseaseveasens 7,9

Rockford Life Ins. Co. v. Ill. Dept. of Revenue,

482 U.S. 182 (1987) o.oo... ccecccccccecessececcccceceeeceeseeseususeusecuccaccasseseuauccesseseuuusuccessecsessereeees 1

Spencer v. State,

615 So. 2d 688 (Fla. 1998)... cccccsesssssssssssecsscsscccccevvsnccscceescecceseeueceusesaeauaeaueseesecers 3

Strickland v. Washington,

AGE U.S. 668 (1984) o.oo. ecccccssecccccesccscceceseccecssssscesssuceccecsceccaeesceseuereeeneusrers 5, 9, 10

Tolan v. Cotton,

572 U.S. 650 (2014) oo. cc cccccasscecensesceeeeeeeenenescesecescecescscececeueeueeseeecassassaasecenseseters 5

Wiggins v. Smith,

539 U.S. 510 (2008) ......ecceecesseesssceeseeceeesesssnsenceaeeeceeeeessssnessssscccensnceasesceesseesecueeeeeversss 9

Other Authorities

28 U.S.C. § 1257 oo ccccccccssccccccceceeccecceesesssssusceccecesssnsnscucesauaccesceeeceseereeetetteesueneteessserees 1

Sup. Ct. R. LO... cccccccccccccccccsececsseceesceseensneeeesecsececesensecauasussasesauceeesseecesesssssecneeeseeessececs 1,5

U.S. Const. amend VI, § 1. oc ceccccssssssssccececussccsscsssuccaucaeceeeceucerseeseetertteussessteesees 1

US. Const. amend. XIV, § 01 oo... ccccccccecsssseceesessensesesseneeeseseessscseccescesccssescecceessserseteeeess 2

CITATION TO OPINION BELOW

The Florida Supreme Court’s Opinion is reported at Davis v. State, 383 So. 3d

743 (Fla. 2024).

STATEMENT OF JURISDICTION

Title 28 U.S.C. § 1257 authorizes this Court’s jurisdiction and limits it to

federal constitutional issues that were properly presented below. A principle purpose

of certiorari jurisdiction “is to resolve conflicts among United States courts of appeals

and state courts concerning the meaning of provisions of federal law.” Braxton v.

United States, 500 U.S. 344, 347 (1991); see also Sup. Ct. R. 10(b) (listing conflict

among federal appellate and state supreme courts as a consideration in the decision

to grant review). Cases that do not divide the federal or state courts or present

important, unsettled questions of federal law, usually do not merit certiorari review.

Rockford Life Ins. Co. v. Ill. Dept. of Revenue, 482 U.S. 182, 184 n.3 (1987).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides in pertinent

part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the state and district wherein the crime shall have

been committed ... [and] to be confronted with the witnesses against him, to have

compulsory process of obtaining witnesses in his favor, and to have the assistance of

counsel.” U.S. Const. amend VI, § 1.

The Fourteenth Amendment to the United States Constitution states in

pertinent part, “[NJor shall any State deprive any person of life, liberty, or property

without due process of law; nor deny to any person within its jurisdiction the equal

1

protection of the laws.” U.S. Const. amend. XIV, § 1.

STATEMENT OF THE CASE AND FACTS

I. State Court Trial Proceedings

A grand jury indicted Davis for two counts of first-degree murder, one count of

attempted first-degree murder, one count of attempted armed robbery, and one count

of possession of a firearm by a convicted felon. Davis committed the crimes on

December 7, 2007, at a BP gasoline station and convenience store. He waived a jury

trial in favor of a bench trial. Davis v. State, 383 So. 3d 748, 749-50 (Fla. 2024).

On the day of the murders, Davis bought a Wesson .357 magnum revolver. His

cousin gave him .38 caliber bullets that were compatible with the revolver. Between

6 and 7 p.m., he left his house, which was approximately twenty-two to twenty-three

minutes away from the BP gasoline station. He drove a black Nissan Altima. Davis

returned home between 9 and 9:30 p.m. Davis, 388 So. 3d at 750.

Around 8:51 p.m., a BP employee and his friend exited the store in order to

change the prices on a front sign. Another employee remained in the store, which by

then was closed. Surveillance footage showed a man, about six feet tall, approach and

pull on the locked store door. He had a large build and was dressed in dark clothing

and wore a hood and a mask. When the employee in the store indicated that the store

was closed, the masked man raised a gun and shot. into the building towards the

employee. The shooter then directed his attention to the two men outside the store.

Surveillance footage showed the men with their hands in the air. After shooting the

two men in the head at approximately 8:53 p.m., the shooter returned to the store

and once again tried to open the door. He then ran from the scene. Davis, 383 So. 3d

2

at 748-49.

Witnesses described a Nissan that was possibly black parked in an isolated

area near the gas station. Davis’s driver license, two dark jackets, and a pair of black

gloves were later found in a black Nissan Altima. Davis, 383 So. 3d at 749. At trial,

Davis testified that he was driving a black Nissan Altima on December 7, 2007. Jd.

at 751.

Davis was positively identified as the perpetrator of another crime involving

multiple shootings, arson and robbery (the Headley case),1 which took place on

December 13, 2007. Davis, 383 So. 3d at 750-51. The state’s ballistics expert testified

that the same gun was used in this case and the Headley case. Id. at 751. He also

testified that .38 caliber projectiles could be fired from a .357 magnum firearm, and

that the projectiles obtained during the BP investigation were consistent with having

been fired from a Wesson .357 magnum revolver. Id. at 750.

The court found Davis guilty as charged. Davis, 383 So. 3d at 752. He waived

a penalty phase jury. Id. Following the penalty phase and a Spencer? hearing, the

court sentenced him to death for the murders, life imprisonment with a twenty-year

minimum mandatory sentence for the attempted murder, twenty years of

imprisonment with a twenty-year minimum mandatory sentence for the attempted

robbery, and fifteen years of imprisonment with a three-year minimum mandatory

sentence for the possession of a firearm by a convicted felon. Id.

1 Davis v. State, 207 So. 3d 142, 148 (Fla. 2016).

2 Spencer v. State, 615 So. 2d 688 (Fla. 1993).

3

Davis raised twelve issues on direct appeal to the Florida Supreme Court.

Davis v. State, 207 So. 3d 177, 188-89 (Fla. 2016). The Court affirmed the convictions

and sentences on November 10, 2016. Jd. This Court denied Davis’s petition for writ

of certiorari on June 5, 2017. Davis v. Florida, 581 U.S. 1020 (2017).

II. State Postconviction Proceedings

Davis filed his initial motion for postconviction relief raising twenty-two claims

and several subclaims. Davis, 383 So. 3d at 753. The trial court held a two-day

evidentiary hearing to address certain claims, including claim 20(a) (trial counsel

failed to thoroughly investigate firearms identification evidence), claim 20(b)(3) (trial

counsel failed to question the State’s firearm expert as to his qualifications, methods,

protocols, and the basis for his conclusions), and claim 20(b)(4) (trial counsel failed to

present expert testimony challenging the state’s firearms expert’s findings regarding

comparison evidence). Jd. at 753-54. At the postconviction evidentiary hearing, the

court heard testimony from lead trial counsel, the state’s trial firearms analyst, the

state’s postconviction ballistics expert, the defense’s postconviction forensic expert, a

detective, and Davis. Id. at 754. The postconviction court ultimately denied relief on

all the claims. Jd.

On appeal, the Florida Supreme Court upheld the postconviction court’s order

denying relief. Davis, 383 So. 3d at 764. It held that neither trial counsel’s crossexamination of the state’s firearms expert nor his failure to obtain an expert to

challenge the state’s firearm and tool mark evidence constituted deficient

performance and thus counsel was not ineffective. Id. at 757-58.

Davis now seeks certiorari review of the Florida Supreme Court’s decision

affirming the denial of postconviction relief.

REASONS FOR DENYING THE WRIT

I. The Florida Supreme Court’s determination that trial counsel

was not ineffective under Strickland was proper and does not

conflict with this court’s jurisprudence.

Davis asks this Court to review the Florida Supreme Court’s deficient

performance analysis related to two Strickland? claims raised in his initial state

postconviction motion. Florida’s high court’s deficient performance analysis, he

asserts, failed to account for the admission of prior bad act and collateral crime

evidence when assessing whether trial counsel’s strategy was sound.

This Court’s rules state that “[a] petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law.” Sup. Ct. R. 10; see also Tolan v.

Cotton, 572 U.S. 650, 661 (2014) (Alito, J., concurring) (explaining that error

correction is outside the mainstream of the Court’s function and is not among the

compelling reasons for granting certiorari review). This Court has stated the

“Strickland standard is a general one, so the range of reasonable applications is

substantial.” Harrington v. Richter, 562 U.S. 86, 105 (2011).

As discussed below, Davis’s claims are fact-intensive and case specific, not

warranting review. The Petition primarily offers a factual re-discussion of the issues

and does not present a misapplication of Strickland. It fails to present a conflict with

3 Strickland v. Washington, 466 U.S. 668 (1984).

5

this Court’s precedent or that of any state court of last resort. Consequently, certiorari

should be denied.

A. The Florida Supreme Court properly analyzed trial

counsel’s strategic decisions in light of the circumstances

trial counsel faced at the time of trial.

Davis argues that when evaluating whether trial counsel’s strategic decisions

were sound, Florida’s highest court took “a very myopic view of counsel’s performance

... fail[ing] to consider the critical circumstance of [prior bad act and collateral crime]

testimony admitted at Petitioner’s trial.” Pet. at 16. His assertion that the Florida

Supreme Court failed to properly account for the admission of bad act and collateral

crime evidence when determining whether counsel’s strategic choices were sound is

wrong.

The decision first sets forth the evidence in this case and the Headley case.

Davis, 383 So. 3d at 748-51. The court’s ineffective assistance of counsel analysis then

begins with a recitation of the Strickland standard, including “[t]he defendant bears

the burden to ‘overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.” Id. at 756 (quoting

Strickland, 466 U.S. at 689).

The court further recounts counsel’s preparation to counter the Headley case

evidence. Davis, 383 So. 3d at 757-58. Counsel testified at the postconviction

evidentiary hearing that he researched trial techniques for challenging ballistics

evidence and consulted with an experienced ballistics experts with whom he had

consulted in prior cases. Id. Further, he filed a motion to ensure that the defense

expert had access to the state’s evidence. Id. at 758.

6

After examining the state’s ballistics evidence, the defense expert concluded

that the bullets and bullet fragments in the BP case and the Headley case were fired

from the same firearm. Davis, 383 So. 3d at 758. Because counsel could not disprove

the conclusion of the state’s expert, he did not believe that arguing general criticisms

about firearms examination was an effective strategy. Id. Counsel chose instead to

focus on the fact that multiple types of firearms other than the type Davis purchased

from his cousin could have been used in the shootings. Id.

It is with this factual background and the testimony of counsel, Florida’s

highest court analyzed his strategic decisions. Moreover, Davis’s ineffective

assistance of counsel claims regarding the ballistics evidence match and the crossexamination of the state’s firearms expert, by their very nature, necessitated

consideration of the impact of the Headley case evidence on trial counsel’s strategic

choices as is illustrated in the decision.

Finally, the Florida Supreme Court’s decision is in harmony with the one case

Davis cites in support of his argument, Kimmelman v. Morrison, 477 U.S. 365 (1986).

There, this Court found that counsel’s pretrial actions had to be considered when

analyzing whether strategic decisions were reasonable. Id. at 386-87. That is

precisely what the Florida Supreme Court did; it did not analyze trial counsel’s

strategic decisions in a vacuum. Instead, the Court examined them in light of the

circumstances faced by counsel after conducting a reasonable investigation. Because

no conflict or misapplication of the law exists, review should be denied.

B. Trial counsel’s strategic decisions were informed by a

reasonable pretrial investigation.

Davis argues that the Florida Supreme Court wrongly concluded that trial

counsel’s strategic decisions regarding cross-examination of the state’s firearms

expert were not deficient. He asserts those strategic decisions were unsupported by a

reasonable pretrial investigation. Such an investigation, Davis continues, would have

led to effective cross-examination regarding the expert’s conclusions, focusing on the

ballistics match rather than whether the same firearm was used in this and the

Headley case.

Davis is wrong. As set forth in the previous subclaim, trial counsel's strategic

decisions were supported by a reasonable investigation including researching trial

techniques for challenging ballistics evidence and consulting with an expert. See

Davis, 383 So. 3d at 757-58. Further, this Court has explained that “Strickland [did]

not enact Newton’s third law for the presentation of evidence, requiring for every

prosecution expert an equal and opposite expert from the defense.” Harrington, 562

U.S. at 111. Often, defense counsel’s cross-examination of the prosecution’s expert

witness “will be sufficient.” Jd.

This is precisely what the Florida Supreme Court found. When the defense

expert determined that the bullets and bullet fragments in this and the Headley case

were fired from the same firearm, trial counsel did not believe that arguing general

criticisms about firearms examination was an effective strategy. Instead, he chose to

focus on the fact that multiple firearms other than that purchased by Davis could

have been used in the shootings. Trial counsel was able to gain concessions from the

state's firearms expert that the murder weapon could have been a different caliber of

firearm than the .357 magnum that Davis bought on the day of the BP murders, and

that twenty-one different firearms could have produced the same firing

characteristics. Davis, 383 So. 3d at 757-58.

Davis cites two cases regarding reasonable investigations as they relate to

counsel’s strategic decisions. In Wiggins v. Smith, 539 U.S. 510 (2003), this Court

found that the defendant was denied the effective assistance of counsel when despite

discovering evidence of potential mitigation evidence, counsel chose to “retry” the

guilt phase of the trial during the penalty phase and to forego further investigation

of Wiggins’ social history and family background. Jd. at 516-18. Under the

circumstances, counsel’s strategic choice was not reasonable “in light of the evidence

counsel uncovered in the social services records-evidence that would have led a

reasonably competent attorney to investigate further.” Jd. at 533. And Kimmelman

involved counsel’s failure to conduct any discovery, rendering his subsequent failure

to file a suppression motion deficient. 477 U.S. at 372, 385.

The facts and circumstances in Wiggins and Kimmelman have no bearing on

the claim before this Court. This is not a case where the Florida Supreme Court

“merely assumed that trial counsel’s investigation was adequate.” Pet. at 18. Nor is

it a case where counsel failed to pursue promising leads without explanation or failed

to demand discovery. Finally, the alternative strategies advanced in the Petition fail

to account for the “distorting effects of hindsight,” which the “highly deferential”

review of strategic decisions is meant to eliminate. Strickland, 466 U.S. at 689.

Because no conflict or misapplication of law exists, review should be denied.

C. Because Davis made an insufficient showing that trial

counsel’s performance was deficient, Florida’s highest

court was not required to engage in Strickland prejudice

analysis.

Lastly, Davis combines the two subclaims discussed above and asserts that

this Court should grant a writ of certiorari and remand the case for an evaluation of

Strickland prejudice. The Florida Supreme Court found that Davis had failed to

establish deficient performance and therefore did not conduct a Strickland prejudice

analysis. This is a perfectly acceptable application of this Court’s controlling

precedent. See Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding

an ineffective assistance claim ... to address both components of the inquiry if the

defendant makes an insufficient showing on one.”). Because no conflict or

misapplication of the law exists, review should be denied.

In sum, Davis has not established any reason for this Court to grant review of

these fact-specific claims. There is no conflict between the Florida Supreme Court

and this Court or any other state supreme court regarding the denial of relief under

Strickland.

10

CONCLUSION

The Petition before the Court does not present any conflict between the Florida

Supreme Court’s decision and any decision of this Court. Nor are unsettled questions

of federal law involved. Therefore, Respondents respectfully submit that the Petition

for a Writ of Certiorari should be denied.

Respectfully submitted,

ASHLEY MOODY

ATTORNEY GENERAL OF FLORIDA

C. SUZANNE BECHARD

Associate Deputy Attorney General

Florida Bar No. 147745

Counsel of Record

Michael W. Mervine

Senior Assistant Attorney General

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, Florida 33607

carlasuzanne.bechard@myfloridalegal.com

capapp@myfloridalegal.com

Telephone: (813) 287-7900

COUNSEL FOR RESPONDENTS

1l