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

Supreme Court briefJul 16, 2024

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No. 23-7765

In The

Supreme Court of the United States

LEON DAVIS, JR.,

Petitioner,

Vv.

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. SC2021-1778, SC2022-0882 (Headley)

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... eeeecesecsecsseeeeeeeceseeeesececesceseeesseseeaeesacsesseseeseseessesasesass il

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 Sirickland 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? ............ccccseccececcceeeeeeseerecceeeeseeenee li

TABLE OF CONTENTS 000. cee eeeeessesseesseeseneeeesaceseseceseeeesesesceeecsseessneesseuseseesseseaaes iil

TABLE OF CITATIONS ou... ccc ccccseseeseceeeceneesseecaeceaeeseeeaeeeseeseneceneesuessneseesaesasessaee iv

CITATION TO OPINION BELOW... ceceeccseececseeseeseeceneesteeseeesencesseeseeesseeseesesssnesens 1

STATEMENT OF JURISDICTION... eee ceceecesseeseeeeeceeceeneesensessacesseneseaeesseeeseesesaeees 1

CONSTITUTIONAL PROVISIONS INVOLVED... eeceeecceeseeteeeeeceeseeeeteaeeseeneteess 1

STATEMENT OF THE CASE AND FACTS... cecceececeeececceeseeteeeseceeceteeeeateeeeaseseeees 3

REASONS FOR DENYING THE WRIT 0.0... cece cseeeeceeceeeesseeeaeeeeceeseeseeseneesseeseesseeees 7

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 JUTISPLUCENCE. ...........cccccccesessessessensesssssesesssssessessssscssessssssessesseseeeseseessceseseueceua 7

A. Because the trial court’s comments regarding two photographs

shown during jury selection were proper, trial counsel was not ineffective

for failing to ODJeCE. ..........:cccccccessscceessceeceesssseeeeeseesesecessseenseecessaaueesesseaeesesereseneenaaas 8

B. The trial court did not improperly vouch for the state when it

emphasized the jury’s role in determining whether Davis was guilty and

explained that the jury would only reach deliberations on the death

penalty if it first found Davis guilty of first-degree murder. As such, trial

counsel was not ineffective for failing to Object. 0.0.0.0... ccc cece cccccccccceceececceecntcenennes 11

CONCLUSION o.oo ee cceesesseeeasecaeensaeseseeseaeecseeeesucessaecesaeeesaeeseaeeseneeenenseseeeees 13

TABLE OF CITATIONS

Cases

Braxton v. United States,

BOO U.S. 344 (1991)... ccccscssssseceeeceeseeceecsssneeeececseeesueeeceeceaeeeausessesecssssaesesersseneceeee 1

Davis v. Florida,

581 U.S. 1020 (2017) 0... ccccccssssssssneeseeceeeesesssaeeececcececssseseeesesseseesesesssvsuneasessaneuas 5

Davis v. State,

207 So. 3d 142 (Fla. 2016)... ececccessssssseceeeeceecessnsceeeeneeeeessssseeneeeeceecsessecseesssseneneces 5

Davis v. State,

383 So. 3d 717 (Fla. 2024)... cece ccccccecceccesessesssnceeeeceeeeecsensaeeececeecsecessneenseess passim

Graver Tank & Mfg. Co. v. Linde Air Products Co.,

B36 U.S. 271 (1949) oo. ccccccsessssssencecnseececcecesssusseeeeeeseseessesgeanseseesesersnesensaeeeecsseneaauas 9

Harrington v. Richter,

B62 U.S. 86 (2011)... ceeccccsessessssseeseeeeeeseeseesesnssssssssneseeseeseesceececeedeeecesececessereeneees 7

Quercia v. United States,

289 U.S. 466 (1988) .........c cece cccccccccesssssssssnnseccecceeeesessssneeceececeeecesesssneceeseeceneseees 9, 10, 12

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

482 U.S. 182 (1987)...........ccccscccccceesesssssssssneeeecseceeeesenseseeseeseeceeseeseaeaseseaceseeeececssseneseeees ]

Rudolph v. United States,

370 U.S. 269 (1962) .........ceccessscccceecessssecsscneeeeeeecesseeeeaseeeeeecesseusseseeaeseeseeseeseeeserecaes 9,12

Strickland v. Washington,

AGG U.S. 668 (1984) .ccccssecssessscsseessecssessucssessscsssessucssecssssssessesssesssssseceseessessvessees 7, 10, 12

Tolan v. Cotton,

572 U.S. 650 (2OT4) oe eeeccccceceesesssssnenenesseseeeeseessseceeseeseseeseesnssacaueceecceeceusseeseescenseanaens 7

United States v. Johnston,

268 U.S. 220 (1925) occ cccccececceccsssssesssseeneceeeeesessssneeaeeseeseceesesssceseeacenseseesceseevensnaeaes 9

Other Authorities

28 U.S.C. § V2B7 vcecesesssessseecseeseessucsssessecsucssecsucsssesseessessusssuesasesucssvssasessessuesseessesstessssesesess 1

S)55 0 ©] A ne 0 ce 1,7

U.S. Const. amend VI, § 1. oo... cece cccecccceccccccccecceceesessecccscceceeseecessecceeceeceereeterersisseeseness 1

U.S. Const. amend. VID... cccceccceeccssensceceeesseeecesssnsaeeecesssaneeceeessaeeeeeeeseescessessnanees 2

CITATION TO OPINION BELOW

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

717 (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 Eighth Amendment to the United States Constitution provides: “Excessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted. U.S. Const. amend. VIII.

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

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

STATEMENT OF THE CASE AND FACTS

I. State Court Trial Proceedings

Armed with a loaded .857 magnum revolver and equipped with duct tape, a

cigarette lighter, gloves and a gasoline can, Davis entered the Headley Insurance

Agency on December 13, 2007, at around 3 p.m. Davis v. State, 383 So. 3d 717, 722

(Fla. 2024). Two employees, Yvonne Bustamante (Bustamante) and Juanita Luciano

(Luciano), were inside. Luciano was twenty-four weeks pregnant. Id. Davis forced the

women to open the company’s safe and cashbox, which contained $900. Jd. He bound

both women with duct tape, poured gasoline on them, and set them on fire. Jd.

The victims escaped the now burning building. Davis, 383 So. 3d at 722. As

Bustamante fled, Davis shot her left hand. [d. Several people, including Brandon

Greisman (Greisman), responded to the scene. Jd. at 723. Davis shot him in the face.

Id. Davis then got into his car and drove away. Id.

Witness descriptions of Bustamante’s condition included: “skin was falling off

her;” “She was um, screaming she was hot. And that her skin was rolling off of her

body ... It was disgusting. You could smell the burnt skin and flesh;” and “the skin,

everywhere I could see it, it was peeling back ... her hair singed off, most of her

clothing was burned off, skin was hanging off her back and buttocks.” Davis 383 So.

3d at 723. Burns covered eighty to ninety percent of her body. Jd. at 726.

Bustamante told a responding officer that Davis, whom she knew as a former

customer, threw gasoline on her and Luciano when they did not give him money and

then set them on fire. Davis, 383 So. 3d at 725. When they tried to run, Davis

continued to throw gasoline on them. Jd. Five days later, Bustamante died from

complications of thermal burns due to the fire. Jd. at 726. Her autopsy also revealed

bullet fragments from the gunshot to her left hand. Jd.

Luciano took refuge at a nearby restaurant. Davis, 383 So. 3d at 724. Although

she was a prior customer of the restaurant, she was so badly burned that the owner

did not recognize her. Jd. at 725. He testified, “I saw a woman that was naked, burned,

um, burned from head to toe, no shoes on, or any clothes on, just underwear. But I

couldn't recognize her.” [d. A responding officer described Luciano’s injuries as worse

than those suffered by Bustamante. Id.

After being taken to the hospital, Luciano underwent an emergency Caesarean

section, during which she gave birth to a son named Michael Bustamante.! Davis,

383 So. 3d at 726. He died three days later due to extreme prematurity. Jd. Luciano

died due to complications of thermal burns due to fire; burns covered approximately

ninety percent of her body. Id.

Within an hour of the robbery, Davis drove to a credit union where he made a

cash deposit. Davis, 383 So. 3d at 726. His face was covered with apparent scratch

marks. Id. He later told his brother that he had robbed someone and told another

person that he had “hurt someone.” Id. at 726-27.

The jury convicted Davis of three counts of first-degree murder, one count of

attempted first-degree murder, one count of armed robbery, and one count of firstdegree arson. Davis, 383 So. 3d at 730. At the conclusion of the penalty phase, it

unanimously recommended Davis be sentenced to death for the two first-degree

1 The father was Yvonne Bustamante’s brother. Davis, 383 So. 3d at 726.

murder convictions (Luciano and Bustamante) and voted eight to four that Davis be

sentenced to death for the first-degree murder of Michael Bustamante. Id. The trial

court ultimately sentenced Davis to death for the first-degree murders of the women

and to life imprisonment for the first-degree murder of Michael Bustamante. Id. at

731.

Davis raised four issues on direct appeal, including whether photographs of

the murder victims were unfairly prejudicial. Davis v. State, 207 So. 3d 142, 158 (Fla.

2016). The Florida Supreme Court affirmed the convictions and sentences on January

23, 2016. Id. at 175. 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, including: trial counsel failed to object to, and in fact participated in,

comments by the trial court that the photographs of the deceased shown to the venire

during jury selection were the worst they have seen; and trial counsel failed to object

to the trial court’s vouching for the Office of the State Attorney when he said to the

jury that the state does not seek death in every first-degree murder case. Davis, 383

So. 3d at 731-32 n.1. The court held a two-day evidentiary hearing. Ultimately, it

denied all claims. Jd. at 733.

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

denying relief. Davis, 383 So. 3d at 743. It held that the trial court never described

the photographs as “the worst” relative to other cases. When read in context, the trial

court was properly “stressing to the prospective jurors the importance of providing a

candid response when they were individually shown photographs of the victims.” Id.

at 735-36.

Further, trial counsel’s performance was not deficient for failing to object to

the court’s comments regarding the photographs. Davis, 383 So. 3d at 736. At the

postconviction evidentiary hearing, trial counsel testified that he did not object,

because in cases such as this involving emotional aspects such as graphic victim

photographs, his strategy is to desensitize the jury as much as possible before the

presentation of evidence begins and to exclude any jurors who would be especially

affected by viewing graphic photographs. Jd. at 736.

Finally, Florida’s highest court found that trial counsel was not ineffective for

not objecting when the trial court advised the jury panel that the state does not seek

the death penalty in all first-degree murder cases. Davis, 383 So. 3d at 736. It rejected

Davis’s characterization that the remarks improperly vouched for the state or

suggested that he deserved the death penalty. Jd. at 736-37. Rather, “the trial court

emphasized the jury’s role in determining whether Davis was guilty and explained

that the jury would only reach deliberations on the death penalty if it first found

Davis guilty of first-degree murder.” Id. at 737. Because the trial court’s remarks

were proper, counsel’s performance was not deficient for failing to object. Jd.

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 Strickland?

determinations related to trial counsel’s not objecting to two court voir dire

comments. He asserts Florida’s high court misinterpreted the import of the remarks

and erred when it concluded that counsel was not ineffective for failing to object to

them.

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.

Cotion, 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. The Petition fails to present a

conflict with this Court’s precedent or that of any state court of last resort.

Consequently, certiorari should be denied.

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

A. Because the trial court’s comments regarding two

photographs shown during jury selection were proper, trial

counsel was not ineffective for failing to object.

Davis asserts that the trial court’s comments to potential jurors about two

photographs shown during voir dire “w[ere] of the sort most likely to remain firmly

lodged in the memory of the jury and to excite a prejudice that would preclude a fair

and dispassionate consideration of the evidence.” Pet. at 12. He continues that trial

counsel should have objected as his strategy of desensitizing the jury panel and

excusing potential jurors who had an emotional response could have been

accomplished without the trial court’s comments. Pet. at 13.

The challenged remarks are as follows:

This case is truly not for the faint of heart. The photographs alone in

this case are graphic.

For the last three and a half years, I have handled all of the first-degree

murder cases in this circuit, and I have been doing this for 16 years, so

I have seen a lot in my service on the bench. And I typically tell jurors

that you are going to see photographs, because in every homicide case,

the jury is shown photographs of the crime scene and they are typically

shown photographs from an autopsy, where a medical examiner

performs an autopsy on the victim, and I tell people typically that yes,

you may see some blood and it is not something you particularly want

to look at, but it is no worse than you probably see on television any

more. As you will know, between movies and television, it's become so

graphic that I don't see jurors shocked as maybe 10 or 15 years ago.

These photographs are graphic.

There are some people, and I don't fault you if you fall in this category,

but there are some folks that may not be able to handle the emotional

aspect of this case and the graphic nature of this case.

I don't normally give this kind of presentation for my other cases, we

just simply tell folks there may be some semi-graphic photographs, if

you have a weak stomach, let us know, we'll talk about it. But I don't do

it quite like we're doing this.

And the reason I'm doing this, I don't want to pick a jury, and you see

how much time we're spending to get this done correctly, and then the

first day that you are shown photographs, one of you absolutely can't

take it and emotionally and I have lost a juror or two or three.

Davis, 383 So. 3d at 735-36.

Davis disagrees with the Florida Supreme Court’s finding that when read in

context, the trial court was stressing to potential jurors the importance of providing

candid responses when shown the photographs. Davis, 383 So. 3d at 736. The Petition

posits: “The court communicated to the jurors who would decide whether Petitioner

lived or died that, in his opinion, this crime was one of the narrow categories of the

most severe crimes deserving of execution.” Pet. at 13.

Davis’s request that this Court reverse the Florida high court’s factual findings

as to the import of the trial court’s statement is inappropriate. See United States v.

Johnston, 268 U.S. 220, 227 (1925) (“We do not grant a certiorari to review evidence

and discuss specific facts.”); Graver Tank & Mfg. Co. v. Linde Air Products Co., 336

U.S. 271, 275 (1949) (this Court “cannot undertake to review concurrent findings of

facts by two courts below in the absence of a very obvious and exceptional showing of

error.”); Rudolph v. United States, 370 U.S. 269, 269-70 (1962) (dismissing writ where

primary dispute was over the appellate court’s interpretations of the facts that agreed

with trial court’s findings).

Further, the facts and circumstances of the case on which Davis relies, Quercia

v. United States, 289 U.S. 466 (1933), have no bearing on the claim before this Court.

There, this Court determined that the trial court's statement, “I think that every

single word that man said, except when he agreed with the Government’s testimony,

was a lie,” prejudiced the defendant. Jd. at 468, 472. This Court reasoned that

although a judge may comment on evidence at trial, he or she must “make[ ] it clear

to the jury that all matters of fact are submitted to their determination.” Jd. at 469.

Here, the trial judge was not commenting on the photographs following the

close of evidence. Rather, he was seeking candid responses from potential jurors

regarding their ability to serve. In addition, the trial court made clear during jury

selection that it would be their job to determine if Davis was guilty and to reommend

a sentence. Davis, 383 So. 3d at 737.

Finally, the Florida Supreme Court’s holding that trial counsel was not

ineffective for failing to make a meritless objection is in harmony with Sérickland, as

there is no reasonable probability that had such an objection been made, the result

of the proceeding would have been different. See Strickland, 466 U.S. at 694. The trial

court would have overruled the objection. Multiple eyewitnesses still would have

identified Davis as the perpetrator. The jury would have learned of his admissions.

And the trial court still would have found multiple aggravating circumstances for the

murder of each victim. "Because no conflict or misapplication of law exists, review

should be denied.

B. The trial court did not improperly vouch for the state

when it emphasized the jury’s role in determining whether

Davis was guilty and explained that the jury would only

reach deliberations on the death penalty if it first found

Davis guilty of first-degree murder. As such, trial counsel

was not ineffective for failing to object.

Davis argues that the Florida Supreme Court wrongly concluded that the trial

court’s voir dire comment explaining capital case procedures and emphasizing the

jury’s role was proper. He asserts that when considered in the light of its remarks

regarding the victims’ photographs, the court’s statement “gave a clear message to

the jury before the State had presented its first aggravator in the penalty phase that

Petitioner’s case was the most gruesome the trial court had overseen, and although

the State does not consider the death penalty to be appropriate in all cases, they

sought death in Petitioner’s case.” Pet. at 15-16. He continues that trial counsel

should have objected as his strategy could have been accomplished without the trial

court’s comments. Id. at 16.

The challenged remarks are as follows:

We're going to talk to you about two issues in private. And that is

whether you know anything about the case from having seen it in the

media in whatever form. Or whether you know people involved and have

heard about it and so on. The other thing we're going to talk about is

your views on the death penalty. Without a doubt the most difficult issue

we ask judges and jurors to decide is the issue of capital punishment.

The State of Florida has a statutory procedure set up in dealing with

this. And I read to you the bifurcated instruction, but it starts very

simply, and that is the State must put someone on notice of seeking the

death penalty. The death penalty is not appropriate in all First Degree

Murder cases, and the State does not seek it in all First Degree Murder

cases. Once that occurs, if the Defendant is found guilty of First Degree

Murder, and First Degree Murder only, not some lesser. If the

Defendant is found guilty of some lesser crime or found not guilty then

your job is done. If and only if the Defendant is found guilty of First

Degree Murder do you then start considering the issue of penalty.

Davis, 383 So. 3d at 736-37.

As with the subclaim discussed above, Davis’s request that this Court reverse

the Florida high court’s factual findings is inappropriate. See Rudolph, 370 U.S. at

269-70) (dismissing writ where primary dispute was over the appellate court's

interpretations of the facts that agreed with trial court’s findings). Further, the

Florida Supreme Court’s decision is in harmony with Quercia where this Court held

that a trial court may explain and comment upon the evidence “provided he makes it

clear to the jury that all matters of fact are submitted to their determination.”

Quercia, 289 U.S. at 46. That is precisely what the trial court did when it emphasized

the jury’s role in determining whether Davis was guilty and explained that the jury

would only reach deliberations on the death penalty if it first found Davis guilty of

first-degree murder. Davis, 383 So. 3d at 737.

Finally, the Florida Supreme Court’s holding that trial counsel was not

ineffective for failing to make a meritless objection is in harmony with Strickland, as

there is no reasonable probability that had such an objection be made, the result of

the proceeding would have been different. See Strickland, 466 U.S. at 694. Because

no conflict or misapplication of 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.

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,