Opposition Brief — Davila v. Davis, 137 S. Ct. 810 (2017) (No. 16-6219)

ORIGINAL

No. 16-6219

IN THE

Supreme Court of the United States

ERICK DANIEL DAVILA,

Petitioner,

V.

LORIE DAVIS, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

KEN PAXTON EDWARD L. MARSHALL

Attorney General of Texas Chief, Criminal Appeals Division

JEFFREY C. MATEER KATHERINE D. HAYES*

First Assistant Attorney General Assistant Attorney General

Criminal Appeals Division

ADRIENNE McFARLAND Texas Bar No. 00796729

Deputy Attorney General

for Criminal] Justice Office of the Attorney General

P.O. Box 12548, Capitol Station

*Counsel of Record Austin, TX 78711-2548

(612) 936-1400; (512) 320-8132 fax

katherine. hayes@oag.texas.gov

ATTORNEYS FOR RESPONDENT

CAPITAL CASE

QUESTIONS PRESENTED

The Fifth Circuit Court of Appeals denied the petitioner a

certificate of appealability to appeal an ineffective-

assistance-of-appellate-counsel claim that was rejected as

procedurally defaulted and meritless. Should the Court

grant certiorari to consider whether the equitable rule

established in Martinez v. Ryan, 132 S. Ct. 1309 (2012) and

Trevino v. Texas, 133 S. Ct. 1911 (2013), can serve as cause

to overcome the default where the underlying claim has no

merit and the petitioner has already received the only

remedy available under Martinez—federal habeas review of

an otherwise defaulted claim?

Texas's capital sentencing scheme requires jurors to make

all factual determinations necessary for a death sentence.

Should the Court grant review to consider whether, in light

of Hurst v. Florida, 136 S. Ct. 616 (2016), Texas’s mitigation

special issue—which offers the jury the opportunity to

impose a life sentence instead of death must be found by a

jury beyond a beyond a reasonable doubt?

TABLE OF CONTENTS

QUESTIONS PRESENTED. ...... . ...es. i

RESPONDENT'S BRIEF IN OPPOSITION ...............cccccccecseeennennnereneneneneeeeenerens 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . 2

rr 2

UI. The Evidence at Punishment 4

III. Procedural History . . . ... .. . . .. . . .... . . . . . . . . . be- 5

REASONS FOR DENYING THE WÜITTTiittnnnnnddd”‚‚‚‚‚‚‚‚‚‚‚tn 6

I. There is No Compelling Reason to Grant Certiorari Review of

Davila’s Procedurally-defaulted and Meritless LAAC Claim 7

A. Davila has waived review of his LAAC claim 8

B. The Fifth Circuit correctly denied a COA because Davila's

[AAC claim is undoubtedly defaulted and meritless. 10

1. The district court was correct in its procedural

bar ruling. ....-...-:0-:cceccsessesccenersnssensesesenensanrnsenesnneesenennnns 10

2. Even if Davila could overcome the proecudeal default,

the district court’s assessment on the merits is not

e 15

Il. There is No Compelling Reason to Grant Certiorari Review to

Consider Whether Texas s Mitigation Special Sentencing Issue

Withstands Constitutional Scrutiny in Light of Hurst. 21

cod cLUS ON. ...... . .. .. . .. . .. ... . . . . .... —

TABLE OF ATHORITES

Cases

Allen v. Stephens, 805 F.3d 617 (5th Cir. 2015) 27

Apprendi v. New Jersey, 530 U.S. 466 (2000) 3 passim

rr eee 10

Banks v. Workman, 692 F.3d 1133 (LOth Cir, 2012). ..... 14

Blue v. Thaler, 665 F.3d 647 (5th Cir, 2011) . . .. . ...es, 13

Buchanan v. Angelone, 522 U.S. 269 (1998) 30

Cinel u. Connick, 15 F.3d 1338 (5th Cir. 19940 10

Coleman v. Thompeon, 501 U.S. 722 (1991). 11

Danaby v. Norris, 682 F.3d 711 (8th Cir. 2012)7)77ʒꝝ /) 14

E.g.,United States u. Thames, 214 F.3d 608 (5th Cir. 2000) 9

Eddings u. Oklahoma, 4565 U.S. 104 (1982). . . . . . . . . . 29

D .. 18

Ex parte Norris, 390 S. W. 3d 338 (Tex. Crim. App. 2012) .... 2 20

Granados v. Quarterman, 455 F.3d 529 (5th Cir. 2006) 25, 30

Granviel v. State, 552 S. W. 2d 107 (Tex. Crim. App. 1976). 19

Hodges v. Colson, 727 F.3d 517 (6th Cir. 2013))))) ,ů t: 12,14

Hurst v. Florida, 136 S. Ct. 616 (2016) . viv i, 1, 21, 24, 25

Johnson v. Texas, 509 U.S. 350 (1993)⸗⸗ . ET TO 29

e x 26

Kaneas v. Carr, 136 8. Ct. 633, 642 (2016)... . . . passim

r . 14

Martinez v. Ryan, 132 8. Ct. 1909 (2012) . . . .. .... passim

Miller -N v. Cockrell, 637 U.S. 322 (003) . . 7

Nguyen v. Curry, 736 F.3d 1287 (gth Cir. 2013) .. . . .... . . . 13, 14

iti

r e 29

Pyles v. Johnson, 136 F.3d 986 (6th Cir. 1999)))9)99·⸗õ 5

Rauf v. Delaware, 145 A. 3d 430 (Del. 2016) 24

Reed v. Stephens, 739 F.3d 753 (6th Cir. 2014) . 12, 14

Ring v. Arizona, 536 U.S. 584 (0g). . . . . passim

Roberts v. State, 273 S. W. 3d 322 (Tex. Crim. App. 2008) 19, 20

Rowell v. Dretke, 398 F.3d 370 (5th Cir. 2005))j/ cee eeee eee 23, 24

Royal v. Tombone, 141 F.3d 596 (5th Cir. 1998))ʒ)· 9

Schaetale u. Cockrell, 343 F.3d 440 (5th Cir, 2003))9)9)9·· 18

Scheanette u. Quarterman, 482 F.3d 815 (5th Cir. 2007) 27

Slack v. McDonald, 529 U.S. 473 (2000) e0nninmn n 7, 10

Smith v. Johnson, 216 F.3d 521 (5th Cir. 2000) 8 3 11

r ____.____. cocnesenenependsnciionanonsnsogpencnsecstovention 18

, · mmmmm ] ] . 28

rr passim

Turner v. Quarter man, 481 F.3d 292 (5th Cir. 2007) 26. 29

United States v. Williamson, 183 F.3d 458 (5th Cir. 1999999 / 18

Weeks v. Angelone, 528 U.S. 226 (2000)... . . . . . . .. . . 30

Yzaguirre v. State, 394 S. W. 3d 526 (Tex. Crim. App. 2013) 20

Constitutional Provisions, Statutes

s SRC Oe ee ee Oe EE SE 10

1 5, 21. 22, 29

e e 26

,,, e . 19

, e di at iceemnmndenaeinnainiioamasimiinabaibnaiiae 26

, e 3333 e ee e 24, 25

RESPONDENT’S BRIEF IN OPPOSITION

In February 2009, a Texas jury convicted Erick Daniel Davila of capital

murder and sentenced him to death. Davila had armed himself with a high-

powered semiautomatic SKS assault rifle equipped with an infrared scope and

opened fire on a crowd of largely women and children attending a birthday

party at a home in Fort Worth, Texas, killing Annette Stevenson and her five-

year-old grandchild, Queshawn Stevenson. Davila now petitions this Court for

a writ of certiorari, complaining that the Fifth Circuit erred in denying him a

certificate of appealability (COA) to appeal the denial of habeas corpus relief

on a claim of ineffective assistance of appellate counsel (IAAC) that was

rejected as procedurally defaulted and meritless; and a claim challenging

Texas's mitigation special issue under Apprendi, Ring, and Hurst, that was

denied for lack of merit. Davila is unable to present any important reason to

grant review. The district court’s resolution of his claims is consistent with

federal habeas jurisprudence, and would not be debated by jurists of reason.

| Apprendi v. New Jersey, 630 U.S. 466 (2000); Ring. v. Arizona, 536 U.S.

584 (2002); Hurst b. Florida, 136 S. Ct. 616 (2014).

. Davila v. Stephens, No. 4:13-cv-506-O, 2015 WL 1808689 (N.D. Tex,

April 21, 2015) (Memorandum Opinion and Order); Davila v. Davis, No. 15-70013,

2016 WL 317870 (6th Cir. May 31, 2016) (unpublished). The district court’s opinion

is Davila’s Appendix (App.) B and the Fifth Circuit’s decision is Davila’s App. A.

1

The Court should therefore deny certiorari review.

STATEMENT OF THE CASE

I, The Evidence at Trial

The district court provided the following summary of the evidence of

Davila’s capital crime:

On April 6, 2008, eleven-year-old Cashmonae Stevenson, along

with numerous friends and relatives, celebrated her sister

Nahtica's ninth birthday at a “Hannah Montana” birthday party

at her grandmother’s home in the Village Creek Townhouses in

Fort Worth. P] Except for Cashmonae’s uncle, Jerry Stevenson, all

of the guests were women and children. About 8:00 p.m., just as

the fifteen children were eating ice cream and cake on the front

porch, Cashmonae saw a black Mazda slowly drive by. Inside was

a man holding a gun with “a red dot” on it. Cashmonae “felt in her

stomach” that something bad was going to happen because “no one

ever rolled by with a gun pointed towards our house.” Her uncle

Jerry said, “The fool has a K in the car.”[*] And then Cashmonae

heard her grandmother, Annette Stevenson, say, “They trying to

find trouble.”

A few minutes later Cashmonae saw a man run across the field,

stand next to the house in front of theirs, and start shooting with

“the red dot” pointed at their porch.[*] He kept shooting at them as

N This neighborhood was known for gang related violence, frequently

between the Bloods, who used red as their “color,” and the Crips, who used blue.

0 Jerry later testified that he thought the rifle was an AK-47; in fact, it

was an SKS. The two rifles are similar in appearance and function.

e Jerry Stevenson testified that he saw the gunman, dressed all in black,

shooting at them, so he grabbed his son’s hand, pulled him into the house, and threw

him into a corner to protect him as he saw his mother stagger through the door and

walk toward her bedroom. When Jerry saw that his daughter, Queshawn, was not

2

the children and adults “stacked up on top of each other” as they

tried to run through the front door. They were all screaming and

trying to get to safe places inside. Cashmonae saw her uncle, Jerry

Stevenson, lay his five-year-old daughter, Queshawn, down on the

sofa. She was bleeding and looked dizzy. According to Jerry, “her

guts was hanging out.” After the gunshots ended, Cashmonae

discovered that she had been shot in the elbow, the hand, and the

shoulder. Nahtica and another little girl, Brianna, as well as

Sheila Moblin, one of the adults at the party, had also been shot.

Cashmonae’s grandmother, Annette, had been killed, as had five-

year-old Queshawn.

* * —

By the time the first police officer arrived, it was a chaotic scene.

There was a dead woman Annette Stevenson in the back

bedroom, a seriously injured child—Queshawn—on the couch in

the living room, two more children with leg wounds in the dining

room, blood splattered everywhere, and both adults and children

screaming and trying to help or console the wounded and each

other. Crime scene officers found four shell casings beside the air

conditioning unit across the street and four more scattered in the

street where the second series of shots had been fired. They

photographed the bullet holes found all along the porch walls and

in the windows of the Stevenson home.

Davila’s App. B at *1-2 (citing Davila v. State, No. AP-76,105, 2011 WL 303265,

at 1-3 (Tex. Crim. App. Jan. 26, 2011) (unpublished) (footnotes in original but

omitted by the district court). The Fifth Circuit provided this additional

account of the evidence at trial:

A police investigation led to the arrest of Davila, who gave four

inside, he ran to the door, and saw her lying on the front porch. He ran out, picked

her up, and carried her back inside.

written statements over the course of seven hours in custody after

his arrest. Davila was a member of the Bloods gang. Davila’s third

statement included admissions that he and his friend had been

driving around in his girlfriend’s black Mazda and decided to have

a “shoot em up.” [Davila] said he was trying to shoot “the guys on

the porch and ... trying to get the fat dude.” He stated he did not

know the name of the “fat dude,” but recognized him. As for the

“guys on the porch,” Davila appeared to have mistaken some of the

adult women at the party for men because the only male at the

party was Jerry [Stevenson]. This confession, along with other

evidence, was presented at Davila’s trial and led to his conviction.

Davila’s App. A at *1.

II. The Evidence at Punishment

Davila does not challenge the sufficiency of the evidence presented by

the parties during the punishment phase. As summarized by the Fifth Circuit:

At the punishment phase, the State introduced aggravating

evidence: Davila had attempted to escape from jail and seriously

injured a detention officer in the process; he had committed an

aggravated robbery and an additional murder only two days before

the birthday party shooting; he also had been convicted for

burglary of a habitation in 2006.

For the mitigation case, the defense offered testimony from

Davila’s father, sister, mother, maternal aunts, and a psychologist,

Dr. Emily Fallis. In summary, they testified that Davila had been

raised solely by a teenage mother, with his alcoholic father having

been incarcerated for murder since he was very young. Davila’s

mother told him that he was conceived when his father sexually

assaulted her. She was neglectful, abusive, and hateful towards

Davila and his sister, and even made them leave the house as

teenagers. Davila’s sister testified about physical fights she had

with their mother. After deliberation, the jury returned a sentence

of death.

Davila’s App. A at *1.

III. Procedural History

Davila was convicted of capital murder in February 2009, for

intentionally killing more than one person in the same criminal transaction.

Davila’s App. E. Following a separate punishment hearing, the jury answered

“yes” to the special sentencing issue on future dangerousness and “no” to the

issue on mitigation. Tex. Code Crim. Proc. art. 37.071, §§ (2)(b)(2) & (2)(e).

Based on the jury’s answers, the trial court sentenced Davila to death. State v.

Davila, No. 1108359D (Crim. Dist. Ct. No. 1, Tarrant Co., Tex. Feb. 27, 2009).

The Texas Court of Criminal Appeals (TCCA) affirmed Davila’s

conviction and sentence on direct appeal. Davila v. State, No. AP-76,105, 2011

WL 3032665, at *10 (Tex. Crim. App. Jan. 26, 2011), cert. denied, 132 S. Ct. 258

(2011).’

While his appeal was pending, Davila, through court-appointed habeas

counsel, filed an application for state writ of habeas corpus. After conducting

an evidentiary héaring, the convicting court issued findings and conclusions

recommending the denial of habeas relief. Davila’s App. C. The TCCA adopted

, A copy of the TCCA’s unpublished opinion is Davila’s App. D.

5

the same, noted that two claims were also defaulted, and denied the writ

application. Ex parte Davila, No. WR-75,356-01, 2013 WL 1655549 (Tex. Crim.

App. Apr. 17, 2013) (unpublished), cert. denied, 134 S. Ct. 784 (2013).

Davila timely filed a petition for writ of habeas corpus on April 14, 2014,

which he subsequently amended. Davila v. Stephens, No. 4:13-cv-00506-O

(N.D. Tex.) (Pet., ECF No. 16; Am. Pet., ECF No. 17). On April 21, 2015, the

district issued a “Memorandum Opinion and Order” in which it denied Davila's

amended petition and denied COA. Id. (Mem. Op. & Order, ECF No. 38; F.

Jdgmt., ECF No. 39); Davila’s App. B. The Fifth Circuit, finding that

reasonable jurists would not debate the resolution of any of the claims on

procedural and/or merits-based grounds, denied COA in an unpublished, per

curiam opinion on May 31, 2016. Davila’s App. A at *8. Davila petitioned for

rehearing, and was denied relief. Davila v. Davis, No. 15-70013 (6th Cir. June

28, 2016) (unpublished order). The instant proceedings now follow.

REASONS FOR DENYING THE WRIT

The Rules of the Supreme Court provide that review on writ of certiorari

is not a matter of right, but of judicial discretion, and will be granted only for

“compelling reasons.” Sup. Ct. R. 10. Davila fails to advance a compelling

reason for this Court to exercise its certiorari jurisdiction and none exists.

Both the Fifth Circuit and the district court below denied Davila a COA

to appeal his federal habeas claims. To obtain a COA for his procedurally-

defaulted claim of ineffective assistance on direct appeal, Davila must show

that reasonable jurists would debate whether the district court was correct in

its procedural ruling and whether his petition states a valid claim on the

merits. Slack v. McDonald, 529 U.S. 473, 484 (2000). To obtain a COA for his

claim that was denied on the merits challenging the constitutionality of Texas's

mitigation special issue, Davila must show that “jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327

(2003). Davila cannot make the requisite showing for either of his claims.

I. There is No Compelling Reason to Grant Certiorari Review of

Davila’s Procedurally-defaulted and Meritless [AAC Claim.

On federal habeas review, Davila argued that his counsel on direct

appeal was ineffective for failing to recognize and raise a claim that he was

convicted through the use of an improper jury instruction on transferred

intent. Am. Pet., ECF No. 17 at 81-90.“ The district court correctly held that

. Davila did not raise the purported jury charge error as a substantive

claim for federal habeas relief. See generally Am. Pet., ECF No. 17.

7

the IAAC claim was unexhausted and defaulted, and rejected Davila's

argument that Martinez and Trevino should extend to excuse the procedural

bar. App. B at *19-20; see Order, ECF No. 34 at 2-4. However, the district court

additionally concluded that even if Davila could avoid procedural default, his

IAAC claim did not merit relief because he failed to show deficient performance

and prejudice. App. B at *20-23. The Fifth Circuit denied Davila a COA,

concluding that reasonable jurists could not debate the procedural ruling or

the lack of a constitutional violation. App. A at *4.

Davila petitions the Court to grant review of the Fifth Circuit's decision

in order to consider whether Martinez and Trevino “can be seen as cause” to

excuse the default of a substantial IAAC claim. Pet. at 16. Davila presents no

compelling reason to consider this claim. Davila has waived review of the

merits of his [AAC claim and fails to addresses how Martinez and Trevino

apply to the facts of his case. To the extent Davila's claim is properly before

this Court, it presents no issue worthy of certiorari because the IAAC claim is

undeniably defaulted and meritless.

A. Davila has waived review of his LAAC claim.

To the Fifth Circuit and district court below, Davila argued that his

appellate attorney provided ineffective assistance by failing to raise a point of

error on direct appeal complaining that he was convicted by the use of an

improper jury instruction. E. g., Am. Pet., ECF No. 17 at 81-90. Although

Davila petitions this Court for review of the Fifth Circuit’s denial of COA, he

does not argue the purported merits of his underlying LAAC claim. See Pet. at

16-20. Nor does Davila argue that the district court’s procedural bar ruling was

factually or legally erroneous. See id. Instead, Davila contends that the holding

in Martinez should be extended to substantial claims of ineffective assistance

of appellate counsel. Jd. at 16-20. However, even then Davila does not argue

that his own IAAC claim is substantial, that state habeas counsel was

constitutionally ineffective in failing to raise the claim, and that he suffered

actual prejudice by habeas counsel's omission.

Davila has waived his underlying IAAC claim, as well as the purported

applicability of his Martinez and Trevino-based arguments, by failing to brief

the issues to this Court. E. g., United States v. Thames, 214 F.3d 608, 612 n.3

(5th Cir. 2000) (holding that unargued and inadequately briefed issues are

waived); Royal v. Tombone, 141 F.3d 596, 599 n.3 (5th Cir. 1998) (holding that

appellant waived issue inadequately briefed on appeal); Pyles v. Johnson, 136

F.3d 986, 996 n.9 (5th Cir. 1998) (holding that issues not raised and argued in

the initial brief on appeal are waived); Cinel v. Connick, 15 F.3d 1338, 1345

(5th Cir. 1994) (holding same).

B. The Fifth Circuit correctly denied a COA because Davila’s

IAA claim is undoubtedly defaulted and meritless.

To obtain a COA, Davila must show that reasonable jurists would debate

the district court's procedural-default ruling and its merits-based resolution of

the constitutional claim. Slack, 629 U.S. at 484. The Court should deny review

because Davila's arguments focus solely on the procedural ruling and ignore

the second half of the COA standard. See Pet. at 16-20. Yet even if the Court

were to hold that Martinez excuses the default of a “substantial” [AAC claim,

Davila's claim is meritless and he has already received the remedy available

under Martine federal habeas review of his defaulted LAAC claim. App. B at

*19-23. Because Davila’s arguments present no important reason to grant

review, the Court should deny his petition for writ of certiorari.

1. The district court was correct in its procedural bar

ruling.

Under 28 U.S.C. § 2254(b), a federal court may not grant habeas relief

unless the petitioner has first exhausted state remedies with respect to the

claim at issue. Baldwin v. Reese, 541 U.S. 27, 29 (2004). The district court

found that Davila failed to exhaust state remedies because he did not present

his [AAC claim in state court. App. B at *20 (citing Order, ECF No. 35). Davila

10

does not dispute this determination.

A procedural default occurs when “the court to which the petitioner

would be required to present his claim in order to meet the exhaustion

requirement would now find the claims procedurally defaulted.” Coleman v.

Thompson, 501 U.S. 722, 735 n.1 (1991). The district court determined that

Davila’s IAA claim was defaulted because the alleged jury charge error and

its absence from the appeal was apparent on the record when Davila’s state

habeas counsel filed the original habeas application and Texas's subsequent

writ bar would prevent Davila from presenting the claim now in state court.

App. Bat 20 (citing Coleman, 501 U.S. at 735 n. I. and Tex. Code Crim. Proc.

art. 11.071, § 5)). Davila does not dispute that his [AAC claim is procedurally

defaulted.

A procedural bar may be excused by a showing of (1) “cause” and actual

prejudice, or (2) fundamental! miscarriage of justice. Smith v. Johnson, 216

F.3d 521, 524 (5th Cir. 2000). In Martinez, the Court held that for substantial

claims of ineffective assistance of trial counsel that have been defaulted, the

ineffective assistance of state habeas counsel may also excuse the procedural

bar. See Martinez, 132 S. Ct. at 1318; Trevino, 133 S. Ct. at 1921 (extending

Martinez to post-conviction applications filed in Texas).

11

Davila tried to avail himself Martinez and Trevino by seeking an

extension of holdings in order to excuse his procedural! default of his [AAC

claim, but the district court correctly rejected his argument. In its Order

denying Davila a hearing, the court explained, “Neither the Supreme Court

nor the Fifth Circuit has expanded Martinez to include this scenario.” Order,

ECF No. 35 at 4. In its subsequent Memorandum Opinion and Order, the

district court cited Fifth Circuit precedent which holds that Trevino had been

extended to excuse the default of [AAC claims like that urged by Davila. App.

B at *20 (citing Reed v. Stephens, 739 F.3d 753, 778 n.16 (5th Cir. 2014)).

On appeal, the Fifth Circuit also rejected Davila’s attempt to extend

Martinez to excuse the procedural bar, explaining that Martinez made an

“unambiguous holding” to the effect that “ineffective assistance of post-

conviction counsel cannot supply cause for procedural default of a claim of

ineffective assistance of appellate counsel.” App. A at *4 (citing Reed, 739 F.3d

at 778 n.16 (quoting Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013)). The

Fifth Circuit denied COA, concluding that in light of the above-described

controlling precedent, reasonable jurists would not debate the district court’s

conclusion that the claim of error “was procedurally defaulted because Davila

failed to exhaust state court proceedings.” Id. (citing Blue v. Thaler, 665 F.3d

12

647, 669 (5th Cir. 2011) (where arguments “are foreclosed by Fifth Circuit

precedent, the correctness of the district court's decision to reject them is not

subject to debate among jurists of reason.”)).

Davila seeks review of the Fifth Circuit's decision, arguing that the

“principles underlying Martinez” should apply equally to LAAC claims. See Pet.

at 16-20. Since Davila encourages the Court to extend Martinez to [AAC

claims, by definition he cannot show that reasonable jurists would debate the

correctness of the district court’s procedural default determination based on

this Court's then-existing precedent.

In any event, the support relied on by Davila does not give rise to a valid

claim that Martinez should be extended in the manner he seeks. Initially,

Davila cites to a Ninth Circuit opinion that has read Martinez as applying to

IAAC claims, but the reasoning of that opinion has not been adopted by the

Fifth Circuit. Pet. at 17 (citing Nguyen v. Curry, 736 F.3d 1287, 1293 (9th Cir.

2013)). Davila also cites to Justice Scalia's dissenting opinion in Martinez

which recognized that the holding might extend to other claims that cannot be

raised before the post-conviction stage, but a dissenting opinion speculating on

possible unintended consequences is of no avail. Martinez, 132 S. Ct. at 1321

(Scalia, J., dissenting)).

13

Finally, Davila argues that a Circuit split has arisen between the Ninth

Circuit's decision in Nguyen and decisions from the Fifth, Sixth, Seventh,

Eighth, and Tenth Circuits which have declined to extend Martinez beyond

substantial claims of ineffective assistance of trial counsel. Pet. at 19 (citing

Reed v. Stephens, 739 F.3d 753, 778 n.16 (5th Cir. 2014); Hodges v. Colson,

727£.3d 517, 630-31 (6th Cir. 2013); Long v. Butler, 809 F.3d 299, 315 (7th Cir.);

Dansby v. Norris, 682 F.3d 711, 728-29 (8th Cir. 2012), rev'd on other grounds,

133 S. Ct. 2767 (2013); Banks v. Workman, 692 F.3d 1133, 1147-48 (10th Cir.

2012)). If the Court was willing to address a potential circuit split, Davila’s

case is not an appropriate vehicle for doing so. The issue on which the split

purportedly exists—whether the holding in Martinez excuses the procedural

default of a substantial claim of appellate-counsel ineffectiveness—has no

potential application to Davila. As explained in the following section, the

allegedly erroneous jury instruction that serves as the basis for Davila’s claim

of appellate-counsel ineffectiveness was not properly preserved for review with

a trial objection. Davila’s claim of jury-instruction error is also not based on

any accepted legal interpretation of state law. And most importantly, Davila’s

IAAC claim was already raised and rejected in federal court on procedural

grounds and for lack of merit. As a result, he has already obtained the remedy

14

that might be available to him if Martinez applies to [AAC claims, a review of

the merits of his defaulted claim. Under such circumstances, the Court has no

reason to grant review.

2. Even if Davila could overcome the procedural default,

the district court’s assessment on the merits is not

debatable.

Davila underlying IAAC claim alleges that his attorney failed to raise a

claim on direct appeal that he was convicted based on an improper

supplemental jury instruction on transferred intent. See Am. Pet., ECF No. 17

at 81-90. As an alternative ruling to the default, the district court reviewed the

merits of Davila’s claim and, finding no merit, denied habeas relief. App. B at

520-23.“ Reasonable jurists would not debate the district court's resolution of

the constitutional claim.

At trial, the jury was given the following instructions regarding capital

murder:

A person commits an offense of “capital murder” if he commits

murder and murders more than one person during the same

criminal transaction. A person commits an offense of murder if

he intentionally or knowingly causes the death of an individual.

° If a procedural default is excused under Martinez, then a federal court

may reach the merits of the underlying ineffective assistance of trial counsel claim.

To the extent Martinez could ever apply to Davila’s IAAC claim, he has already

received the only remedy offered by Martinez—federal habeas review of the merits.

16

A person acts “intentionally,” or with intent, with respect to a

result of his conduct when it is his conscious objective or desire to

cause the result.

A person acts “knowingly,” or with knowledge, with respect to the

result of his conduct when he is aware that his conduct is

reasonably certain to cause the result.

Now, if you find from the evidence beyond a reasonable doubt, that

Erick Daniel Davila, in Tarrant County, Texas, on or about the 6th

day of April 2008, did intentionally or knowingly cause the death

of an individual, Queshawn Stevenson, by shooting her with a

deadly weapon, to wit: a firearm, and did intentionally or

knowingly cause the death of an individual, Annette Stevenson, by

shooting her with a deadly weapon, to wit: a firearm; and both

murders were committed during the same criminal transaction,

then you'll find the Defendant guilty of the offense of capital

murder.

Unless you so find beyond a reasonable doubt, or if you have a

reasonable doubt thereof, you will find the defendant not guilty of

capital murder as charged in the indictment and next consider the

lesser included offenses of murder.

Davila’s App. E at 1-2.

During their deliberations, the jury sent a note to the trial court asking

for the following: “We need a clarification of the capital murder charge. In a

capital murder charge, are you asking us did [Davila] intentionally murder the

specific victims, or are you asking did he intend to murder a person and in the

process took the lives of 2 others.” App. E at 9. The trial judge returned a

16

written response that repeated the definitions of “intentionally” and

“knowingly,” the charge on capital murder and instruction on reasonable

doubt, set out above. Id. at 10. The trial court also gave the additional charge

on the law as follows:

A person is nevertheless criminally responsible for causing a result

if the only difference between what actually occurred and what he

desired, contemplated or risked is that a different person was

injured, harmed, or otherwise affected.

App. E at 11. Defense trial counsel objected to the second supplemental

instruction on the basis that the court should delay the charge until after the

jury deliberated further. See ECF No. 11 at 22. The trial court overruled the

objection and sent the instruction to the jury. Jd. The jury continued its

deliberations and within the hour, sent out a note stating it had reached a

verdict. App. E at 12. Davila was ultimately convicted of capital murder.

In his Statement of the Case (but not in the questions Davila presents

for review), Davila states that the jury was improperly instructed on Texas's

transferred intent law in the capital murder context. Pet. at 5. He states that

his attorneys argued at trial that he only intended to shoot his rival, Jerry

Stevenson, and therefore he was not guilty of capital murder as multiple

intents to kill were necessary for his capital murder conviction for killing two

people in the same transaction. Jd. Making no mention of the applicable legal

17

standards for reviewing claims of ineffective assistance, Davila states that

appellate counsel “was ineffective for failing to raise the jury charge error on

direct appeal,” and state writ counsel “was ineffective for not raising a clearly

meritorious claim [of] ineffective assistance of appellate counsel.” Jd. at 12, 13.

Even if Davila had briefed the LAAC claim as an issue for review, he could not

show that reasonable jurists would debate the district court’s decision to deny

habeas relief on the merits.

A criminal defendant is constitutionally entitled to effective assistance

on direct appeal. Evitts v. Lucey, 469 U.S. 387 (1985). To establish that

counsel's performance was objectively unreasonable, Davila must show

“counsel unreasonably failed to discover nonfrivolous issues and to file a merits

brief raising them.” Smith v. Robbins, 528 U.S. 259, 287 (2000). To show

prejudice, Davila must establish “a reasonable probability that, but for his

counsel’s unreasonable failure” to raise the claim, “he would have prevailed on

appeal.” Jd. This does not mean that counsel must raise every non-frivolous

ground available. Schaetzle uv. Cockrell, 343 F.3d 440, 445 (5th Cir. 2003). Only

“solid, meritorious arguments based on directly controlling precedent should

be discovered and brought to the court’s attention.” United States v.

Williamson, 183 F.3d 458, 462-63 (5th Cir. 1999).

18

The district court, reviewing the jury charge as a whole, found no

purported error and denied Davila’s [AAC claim. App. B at *20-23. As that

court concluded, and Davila does not dispute, the complained-of supplemental

instruction given the jury tracks the language of Section 6.04 of the Texas

Penal Code, which reads “[a] person is nevertheless criminally responsible for

causing a result if the only difference between what actually occurred and what

he docixé, contemplated, or risked is that a different person or property

was injured, harmed, or otherwise affected.” Tex. Penal Code § 6.04.

Understandably, defense trial counsel did not lodge an objection to the

supplemental charge on the basis that it was an incorrect statement of the law.

App. B at *22. Appellate counsel cannot be ineffective for failing to raise a claim

of error that was not preserved for appeal and was not erroneous.'®

Additionally, Davila has previously argued that the supplemental jury

instruction violated the rule in Roberts v. State, 273 S.W.3d 322, 331 (Tex.

Crim. App. 2008),'' that a defendant must have the necessary mental state

1 See, e. g., Granviel v. State, 552 S. W.2d 107, 121-22 (Tex. Crim. App.

1976) (preservation of error for review on appeal requires a defendant to object in a

timely and specific manner).

* In Roberts, the TCCA stated that “[t]ransferred intent may be used as

to a second death to support a charge of capital murder that alleges the deaths of

more than one individual during the same criminal transaction only if there is proof

of intent to kill the same number of persons who actually died.” 273 S.W.2d at 330.

19

(intent or knowledge) with respect to the number of victims actually killed. Am.

Pet., ECF No. 17 at 74-78. The district court, reviewing the jury charge in its

entirety, again found no error:

The “transferred intent” instruction was not given to the jury in

isolation; it was given to the jury along with the language taken

from the court’s charge that repeated the statutory definitions for

“intentionally” and “knowingly,” as well as the application

paragraph for capital murder. [Davila’s App. E at 11-12]. In Texas,

the application paragraph is the portion of the charge that

authorizes conviction. Yzaguirre v. State, 394 S.W.3d 526, 530

(Tex. Crim. App. 2013). The application paragraph for capital

murder clearly required the jury to find Davila caused two

intentional or knowing deaths in the same criminal transaction. In

the event the jury fund that Davila killed only one person, the

application paragraph did not allow the jury to convict Davila of

capital murder.

App. B at *22-23. Furthermore, the error identified in Roberts is not implicated

in Davila’s case. In addressing Davila’s claim of insufficient evidence to support

his conviction (a claim not currently before this Court), the TCCA

distinguished the facts of Davila’s case from those in Roberts where the victim

was a woman who, unbeknownst to the defendant, was pregnant. App. D at 8-

11. There, the intent to kill one person did not transfer to support two killings.

In contrast and as summarized in Part I of the Statement of the Case above,

In 2012, the TCCA clarified that its statement in Roberts “was dictum” and was

improvident, reasoning that “[i]t is certainly possible to intend more than once to kill

a particular person. Ex parte Norris, 390 S.W.3d 338, 341 (Tex. Crim. App. 2012).

20

Davila’s own statement establishes that he went to “a shoot em up” in which

he intended to kill “the fat dude . . in the middle of the street” and “the other

3 [guys] on the porch.” Davila intended to kill four males, but shot and killed

two females instead, Queshawn Stevenson and Annette Stevenson.

Accordingly, Davila’s appellate counsel did not provide ineffective assistance

by failing to raise a point of error challenging the supplemental jury charge on

transferred intent.

Because there is no erroneous jury instruction, the district court rejected

Davila’s IAAC claim for his failure to show that appellate counsel

“unreasonably failed to discover a non-frivolous issue for appeal” and that the

issue would have prevailed on direct appeal. App. B at *23. Davila fails to show

that reasonable jurists would debate the assessment on the merits of this

otherwise insubstantial and procedurally-defaulted claim.

II. There is No Compelling Reason to Grant Certiorari Review to

Consider Whether Texas’s Mitigation Special Sentencing Issue

Withstands Constitutional Scrutiny in Light of Hurst.

Davila argues that Texas’s death penalty statute, Article 37.071 of the

Texas Code of Criminal Procedure, is unconstitutional because jurors are not

required to make a finding on the mitigation special issue beyond a reasonable

doubt under Apprendi, Ring, and Hurst. See Pet. at 20-32. Davila's contentions

21

present no cert-worthy issue.

In order to obtain a death sentence under Texas law, the State has the

burden to prove beyond a reasonable doubt that “there is a probability that the

defendant would commit criminal acts of violence that would constitute a

continuing threat to society.” Tex. Code Crim. Proc. art. 37.071, § (2)(b)(1)."" If

the jury unanimously agrees to answer “yes” this “future dangerousness“

special issue, it must then consider whether there are sufficient mitigating

circumstances to warrant a sentence of life imprisonment rather than death.

Id., § (2)(e)(1).'* While the jury may not answer this “mitigation special issue”

with “no” unless they unanimously agree, id., § (2)(f), the sentencing scheme

does not assign a burden of proof for either the defendant or the State to prove

or disprove the sufficiency of mitigating circumstances at the punishment

phase.

* The jury in Davila’s case was given Special Issue Number 1: Do you

find from the evidence beyond a reasonable doubt that there is a probability that the

defendant would commit criminal acts of violence that would constitute a continuing

threat to society? Davila’s App. F at 3.

* After the jury unanimously answered “yes” to the future dangerousness

issue, Davila’s jury deliberated Special Issue Number 2, which asks: “Taking into

consideration all of the evidence, including the circumstances of the offense, the

defendant's character, and background, and the personal moral culpability of the

defendant, do you find that there is a sufficient mitigating circumstance or

circumstances to warrant that a sentence of life imprisonment rather than a death

sentence be imposed?” Davila’s App. F at 3.

22

Davila challenged the constitutionality of Texas’s mitigation special

issue on direct appeal and federal habeas, raising a Sixth Amendment claim

under Apprendi and Ring. In Apprendi, the Court held that “any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and provided beyond a reasonable doubt.” 530

U.S. at 490. In Ring, the Court held that “[i]f a State makes an increase in a

defendant's authorized punishment contingent on a finding of fact, that fact—

no matter how the State labels it—must be found by a jury beyond a reasonable

doubt.” 122 S. Ct. at 2430 (citing Apprendi, 530 U.S. at 482-83). Because

Texas's capital sentencing scheme is not similar to those encountered in

Apprendi and Ring, the TCCA rejected Davila’s claim on the merits, noting it

had “repeatedly rejected this argument.” Davila, 2011 WL 303265, at *10 &

n. 51 (citations omitted). The federal district court denied habeas corpus relief

under AEDPA. App. B at *30 (citing Rowell v. Dretke, 398 F.3d 370, 378 (5th

Cir. 2005)). Finding Davila’s claim foreclosed by circuit precedent, the Fifth

Circuit denied him a COA. App. A at *8 (citing Rowell). The appellate court

concluded that, “No Supreme Court or Circuit precedent constitutionally

requires that Texas's mitigation special issue be assigned a burden of proof],]”

and thus reasonable jurists would not debate the lower court's resolution. See

23

id. (quoting Rowell, 398 F.3d at 378).

Davila now asks the Court to grant certiorari review of this

decision, arguing that the determination that no burden of proof is required for

the Texas mitigation special issue conflicts with Supreme Court precedent

because a jury's negative answer to the mitigation special issue is a

prerequisite to imposition of a death sentence. See Pet. at 24-32.“ Relying on

this Court's recent decision in Hurst v. Florida, 136 S. Ct. 616, 622 (2016),

Davila contends that Apprendi applies to any finding necessary for the

sentence of death, not just those findings that increase the punishment to

death eligibility. Pet. at 20, 23-26.

0 Davila additionally argues the Court should grant review because the

decisions from the TCCA and Fifth Circuit “are now at odds with those of the Supreme

Courts of Delaware and Missouri.” Pet. at 32 (citing Sup. Ct R. 10(a), (b)); see id. at

26-27, 28-31. Those states are weighing jurisdictions but Texas is not, as explained

below. This distinction is fatal to Davila’s argument. For example, Davila points out

that the Supreme Court of Delaware has recently decided that the state’s capital

sentencing statute is unconstitutional in light of Hurst. Jd. at 26 (citing Nauf v.

Delaware, 145 A.3d 430 (Del. 2016)). However, the Rauf Court found the statute

unconstitutional because it allowe a judge to find an aggravating circumstance for

the weighing phase, it faile to require unanimity regarding an aggravating

circumstance for the weighing phage, it unconstitutionally allows a judge rather than

the jury to weigh aggravating and mitigating circumstances, and it fails to require

that aggravating circumstances outweigh mitigating circumstances. Id. at *1-2.

These circumstances do not apply to Texas's capital-punishment system. Whether or

not another state may have found constitutional infirmities in its own capital

sentencing statute is no reason for the Court to grant certiorari review in this case.

24

Hurst does not support Davila’s argument. In Hurst, the Court held that

Florida's capital sentencing scheme violated Ring because a jury makes an

advisory verdict while the judge makes the ultimate factual determinations

necessary to sentence a defendant to death.” Hurst, 136 S. Ct. at 621-22. Hurst

merely reiterates that juries, not judges, must find all facts of a crime beyond

a reasonable doubt. See Hurst, 136 S. Ct. at 619 (“The Sixth Amendment

requires a jury, not a judge, to find each fact necessary to impose a sentence of

death.”). In contrast, there are no judicial factfindings in Texas's death-penalty

scheme that could enhance a defendant's sentence beyond the prescribed

range. See Granados v. Quarterman, 455 F.3d 529, 536 (5th Cir. 2006) (“All the

elements of capital murder were put to the jury with instruction that the

evidence had to persuade them beyond a reasonable doubt. No finding by the

judge was required to expose Granados to the death penalty.”) Because judges

play no factfinding role in Texas's capital-punishment scheme, Hurst does not

benefit Davila.

Further, in addition to the lack of judicial factfinding, Texas's death-

penalty scheme substantially differs from Florida's. Unlike weighing states, in

Texas the eligibility determination is made at the guilt-innocence phase of trial

according to the elements alleged in the indictment. See Turner v. Quarterman,

25

481 F.3d 292, 299-300 (5th Cir. 2007) (“Texas capital juries make the eligibility

decision at the guilt-innocence phase) This is by virtue of the manner in

which Texas defines the offense of capital murder.'* In order to find a defendant

guilty of capital murder in Texas, the jury must find murder plus an

aggravator or aggravators, and it is this additional finding which renders the

defendant death eligible. See Jurek v. Texas, 428 U.S. 262, 270 (1976) (Texas

statute requires jury to find existence of statutory aggravating circumstance

at guilt-innocence phase before death penalty may be imposed). Whether the

defendant should be sentenced to death—the selection decision—is then made

by the punishment jury at a Texas capital-murder trial.

The principles of Apprendi and Ring are thus inapplicable to Texas's

—

* Under Section 19.03 of the Texas Penal Code, a person commits capital

murder if the person commits murder (as defined under Section 19.02(b)(1)), and the

murder is committed under one of nine listed circumstances: (1) the person murders

a peace officer or fireman who is acting in lawful discharge of an official duty, and

who the pe:son knows is a peace officer or fireman; (2) the murder is committed while

in the course of committing or attempting to commit kidnapping, burglary, robbery,

aggravated sexual assault, arson, obstruction or retaliation, or terroristic threat; (3)

the murder is committed for remuneration or promise of remuneration; (4) the person

commits murder while escaping or trying to escape from a penal institution; (5) while

incarcerated, the person murders someone employed in the operation of a penal

institution; (6) while incarcerated, the person murders another individual; (7) the

murder is comm. ted against more than one person; (8) the person murders a child

under the age of six years old; or (9) the person commits murder in retaliation for, or

on account of, the service or status of the other person as a judge or other court

personnel. See Tex. Pen. Code 19.03(a).

26

special-issue capital sentencing scheme. The Fifth Circuit has time and again

recognized this important distinction and denied relief on such claims. See, e. g.,

Allen v. Stephens, 805 F.3d 617, 627-28 (6th Cir. 2015) (holding that Texas's

death penalty scheme does not violate either Apprendi or Ring), cert. denied,

136 S. Ct. 2382 (2016); Scheanette v. Quarterman, 482 F.3d 815, 828 (5th Cir.

2007) (holding that Texas’s death penalty scheme “did not violate either

Apprendi or Ring by failing to require the State to prove beyond a reasonable

doubt the absence of mitigating circumstances.”); Turner, 481 F.3d at 299-300

(Ring is “inapposite to any discussion of the constitutional requirements of the

selection phase.”); Granados, 455 F.3d at 536-37 (holding that Texas did not

violate any principle of Apprendi or Ring by not asking the jury to find an

absence of mitigating circumstances beyond a reasonable doubt because “a

finding of mitigating circumstances reduces a sentence from death, rather than

increasing it to death.”); Rowell, 398 F.3d at 378 (“Texas capital juries make

the eligibility decision at the guilt-innocence phase.... Ring is inapposite to any

discussion of the constitutional requirements of the selection phase.”). Hurst

does not change the Fifth Circuit's jurisprudence.

Furthermore, Davila does not address Kansas v. Carr, in which this

Court rejected the argument that the Eighth Amendment requires capital-

27

sentencing courts “to affirmatively inform the jury that mitigating

circumstances need not be proven beyond a reasonable double.” 136 S. Ct. 633,

642 (2016) (citing State v. Gleason, 329 P.3d 1102, 1148 (2014)). The Court’s

reasoning in rejecting Carr's argument lends support to the Fifth Circuit's

conclusion that this Court does not require a burden of proof for the mitigation

special issue.

Addressing the question in Carr in the “abstract,” this Court doubtſedi

whether it is even possible to apply a standard of proof to the mitigating - factor

determination (the so-called ‘selection phase of a capital-sentencing

proceeding).” 136 S8. Ct. at 642. The Court explained that requiring a burden of

proof for “the aggravating-factor determination (the so-called ‘eligibility

phase’)” was possible because it was a purely factual determination—the facts

either did or did not exist, and one could thus require proof of existence beyond

a reasonable doubt. Id. But the existence of a mitigating factor is a “judgment

call” and subject to the individual juror’s discretion. Jd. “And of course the

ultimate question whether mitigating circumstances outweigh aggravating

circumstances is mostly a question of mercy[.]” Id.

As noted, Texas capital juries make the death-eligibility determination

at the guilt-innocence phase, and then determine whether the sentence should

28

be imposed at the sentencing phase-the “selection phase.” Turner, 481 F.3d at

299-300; see also Johnson v. Texas, 509 U.S. 350, 362 (1993). The Texas special

issues do not “increase[{] the penalty for [capital murder] beyond the prescribed

statutory maximum” in violation of the Constitution. See Apprendi, 530 U.S.

at 490. And although a Texas capital-sentencing jury must specifically answer

the mitigation special issue in the negative to render a death sentence, the

actual function of that special issue inures to the defendant's benefit by

allowing the jury an avenue to give effect to mitigating evidence. Thus, the

mitigation special issue is a vehicle through which the jury is given the

opportunity to make an individualized determination of the offender’s moral

culpability, as required by the Supreme Court. Penry v. Johnson, 532 U.S. 782,

797 (2001); Eddings v. Oklahoma, 455 U.S. 104, 111-12 (1982). In making the

decision, the jury is instructed to consider all the evidence, including the

circumstances of the offense, the defendant’s character and background, and

general moral culpability of the defendant. Tex. Code Crim. Proc. art. 37.071,

§ 2 (e) & (f). The jury is not required to agree on what evidence supports an

affirmative answer. Id. The mitigation issue confers upon the jury a broad

ability to show leniency and reduce the defendant's sentence to life

imprisonment. Thus, Carr’s conclusion that the aggravating factor is a factual

29

2 2

determination versus the mitigating factor, which is a discretionary judgment

call” and “mostly a question of mercy,” see 136 S. Ct. at 642, seems to agree

with the Fifth Circuit in that an affirmative finding of aggravation is different

than a finding of mitigation, which reduces the sentence from the statutory

maximum. See Granados, 455 F.3d at 537.

Ultimately the Carr Court concluded that the existing case law did not

require hows instruction that mitigating circumstances need not be proven

beyond a reasonable doubt. Jd. In support, the Court relied on Buchanan v.

Angelone, 522 U.S. 269, 275 (1998), in which the Court upheld a death sentence

even though the trial court “failed to provide the jury with express guidance on

the concept of mitigation,” as well as Weeks b. Angelone, 528 U.S. 225, 232-33

(2000), in which the Court reaffirmed that it has “never held that the State

must structure in a particular way the manner in which juries consider

mitigating evidence” and rejected argument that it was unconstitutional to

instruct jurors to consider a mitigating circumstance if you find there is

evidence to support it,” without additional guidance. The same logic extends to

preclude any burden-of-proof instruction for the mitigation special issue.

The Court's doubt about whether it is even possible to apply a burden of

proof to the mitigating-factor determination at the least confirms that the

30

Court has not addressed the burden-of-proof issue for mitigation. See Carr, 136

S. Ct. at 642. Davila thus fails to demonstrate that the denial of COA and

rejection of his Apprendi-based habeas claim was contrary to any clearly

established federal law existing at the time his conviction because final.

Furthermore, the Court's recent decisions do not lend support to Davila’s

argument and, in fact, are contrary to his position.

CONCLUSION

The Court should deny Davila’s petition for writ of certiorari.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

ADRIENNE McFARLAND

Deputy Attorney General

for Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

KATHERINE D. igen Haag

Assistant Attorney General

Criminal Appeals Division

*Counsel of Record

Texas Bar No. 00796729

31

Office of the Attorney General

P.O. Box 12548, Capitol Station

Austin, TX 78711-2548

(512) 936-1400; (512) 320-8132 fax

katherine. hayes@oag.texas.gov

ATTORNEYS FOR RESPONDENT

32

No. 16-6219

IN THE

Supreme Court of the Anited States

ERICK DANIEL DAVILA,

Petitioner,

v.

LORIE DAVIS, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

—

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PROOF OF SERVICE

I hereby certify that on November 23, 2016, a copy of Respondent's Brief

in Opposition was emailed and sent by U.S. mail delivery to Petitioner's

counsel Mr. Seth Kretzer, 440 Louisiana St., Suite 200, Houston, TX 77002,

seth@kretzerfirm.com, and Mr. Jonathan Landers, 2817 West T.C. Jester

Blvd., Houston, TX 77018, jonathan.landers@gmail.com. All parties required

to be served have been served. I am a member of the Bar of this Court.

KATHERINE D.HAYES* TE

Assistant Attorney General

*Counsel of Record Criminal Appeals Division

Texas Bar No. 00796729

Office of the Attorney General

P.O. Box 12548, Capitol Station

Austin, TX 78711-2548

(512) 936-1400; (612) 320-8132 fax

katherine hayes@oag.texas.gov

KEN PAXTON

ATTORNEY GENERAL OF TEXAS

November 23, 2016

VIA OVERNIGHT MAIL

Honorable Scott S. Harris, Clerk

United States Supreme Court

Office of the Clerk

1 First Street N.E.

Washington, D.C. 20543

Re: Erick Daniel Davila v. Lorie Davis

Cause No. 16-6219

Dear Honorable Harris:

Enclosed for filing is Respondent’s Brief in Opposition, Proof of Service and

ten copies. Please indicate the date of filing on the copy of this letter and

return it to me in the postpaid envelope provided.

Im forwarding a copy of the same Brief to the Petitioner's Counsel. Thank

you for your kind assistance in this matter.

KATHERINE D. HAYES

Assistant Attorney General

Criminal Appeals Division

(512) 936-1400

KDH/aeh

Enclosures

Post Orrice Box 12548, AUSTIN, Texas 78711-2548 TEL:(512) 463-2100 wee: www TEXASATTORNEYGENERAL GOV

An Equal nue, Opportunity Employer

Mr. Seth Kretzer

440 Louisiana St.

Suite 200

Houston, TX 77002

seth@kretzerfirm.com

Mr. Jonathan Landers

2817 West T.C. Jester Blvd.

Houston, TX 77018

Jonathan landers@gmail.com