Opposition Brief — Mitchell, Warden v. Davis

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No. 03-151

CLERK

In The Supreme Court Of The United States ‘ om

BETTY MITCHELL, Warden, Petitioner,

v.

WILEY DAVIS, JR., Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENT’S MOTION

TO PROCEED IN FORMA PAUPERIS

Respondent Wiley Davis, Jr., respectfully requests leave to proceed in forma

pauperis. Respondent was declared indigent by the United States District Court for the

Northern District of Ohio and the Sixth Circuit. Under 18 U.S.C. §3006A and 21 U.S.C.

§848, the District Court and the Sixth Circuit appointed undersigned counsel to represent

Respondent.

Respectfully Submitted,

fay a aa 7 “)

L CEE. KOMP*

: tto at Law

423 ina Ct.

Ballwin, MO 63021

(636) 207-7330

(fax\(636) 207-7351 RECEIVED

*Counsel of Record

| cep 3-003

JOHN P. PARKER

Attomey at Law

4403 St. Clair Ave.

Cleveland, OH 44103

(216) 881 — 0900

(fax216) 881 — 3928

COUNSEL FOR RESPONDENT,

WILEY DAVIS, JR.

No. 03-151

In The Supreme Court Of The United States

BETTY MITCHELL, Warden, Petitioner,

v.

WILEY DAVIS, JR., Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

LAURENCE E. KOMP*

Attorney at Law

423 Madrina Ct.

Ballwin, MO 63021

(636) 207-7330

(fax 636) 207-7351

*Counsel of Record

JOHN P. PARKER

Attomey at Law

4403 St. Clair Ave.

Cleveland, OH 44103

(216) 881 — 0900

(fax\(216) 881 — 3928

COUNSEL FOR RESPONDENT,

WILEY DAVIS, JR.

CAPITAL CASE

QUESTIONS PRESENTED

Should this Court grant certioran to review the Court of Appeals’ application of

Boyde v. California, 494 U.S. 370 (1990), to the unique instructions and verdict

forms given to Respondent’s jury in determining whether the instructions and

verdict forms violated this Court’s established Mills v. Maryland, 486 U.S. 367

(1988) decision which issued four years before Respondent’s trial?

Should this Court should grant certioran where the questions presented relate

neither to the legal basis of the opinion below nor to any issue raised by

Respondent? :

Should this Court grant a petition for wnt of certioran relying on, at best, an intra-

circuit conflict that relates to a determination of the unique aspects of the jury

instructions and verdict forms as given to Respondent’s jury?

TABLE OF CONTENTS

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ARGUMENTS AS TO WHY CERTIORARI SHOULD BE

I. THE QUESTIONS PRESENTED CONTAIN MISSTATEMENTS

AND MISCHARACTERIZATIONS OF THE RECORD...................6

II. THIS COURT DOES NOT NEED TO REVIEW TH ELOWER

COURTS’ APPLICATION OF SETTLED LEGAL PRINCIPLES

TO THE UNIQUE INSTRUCTION AND VERDICT FORMS

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Ill. © THE MILLS RULING IS CORRECT... .....00.0.0 000000000 ccc cee cesses eee O

TV. THERE IS NO INERCIRCUIT OR INTRACIRCUIT CONFLICT... ..12

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TABLE OF AUTHORITIES

Cases

Boyde v. California, 494 U.S. 370 (1990) 2.2.0... 0 o.oo cee cee cee cee cee cee eee eee + PASSIM

Bell vy. Wises, 274 F 30 S37 (GU Cir. BOGE)... oo5 5cs cee cee ces seo cesuevese cvs sen cele

Davis v. Mitchell, 318 F.3d 682 (6th Cir. 2003)... ...... 2.0.00... ..0 00. ........... passim

Davis v. Mitchell, 2003 U.S. App. LEXIS 8417 (6th Cir. 2003)...........0 0000000001

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Wiggins v. Smith, U.S. _, 123 S. Ct. 2527 (2003)... 0... cee cece eevee ee eee

Zettlemover v. Fulcomer, 923 F.3d 284 (3rd Cir. 1991)... 0000000

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No. 03-151

In The Supreme Court Of The United States

BETTY MITCHELL, Warden, Petitioner,

v.

WILEY DAVIS, JR., Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENT?’S BRIEF IN OPPOSITION

Respondent Wiley Davis, Jr., respectfully requests that this Court deny the

petition for wnt of certiorari, seeking review of the United States Court of Appeals for

the Sixth Circuit’s opinion in this case. The Sixth Circuit’s opinion is reported as Davis

v. Mitchell, 318 F.3d 682 (6™ Cir. 2003). The Sixth Circuit denied en banc review

finding that rehearing was unwarranted. Indeed, no judge of the en banc court found

Petitioner’s en banc petition worthy of a vote. Davis v. Mitchell, 2003 U.S. App. LEXIS

8417 (6 Cir. 2003), Apx. 31a-32a (noting “no judge of this court having requested a

vote on the suggestion for rehearing en banc... .”).'

STATEMENT OF THE CASE

Petitioner showed an unusual callousness as to the true basis of the charges and

convictions Respondent has faced. Petitioner incorrectly alleges in the very first line of

' Due to it’s ruling, the Sixth Circuit pretermitted the consideration of three other issues upon which a

certificate of appealability was granted. Apx. 17a

“sn be lm a ce le i ee ie a uu eae ncenmammamammes

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her statement of the case that Respondent “brutally raped” Amy Perkins. Petition p. 7.

This is simple wrong. In truth, while Respondent was initially charged with rape (the fifth

count of a six count indictment), the State of Ohio dismissed the rape count prior to

Respondent’s trial. Return of Wnt Apx. p. 748.

While the jury did find Respondent guilty of an attempted rape death penalty

specification, notably absent from and contrary to Petitioner’s Statement uf the Case, the

Ohio Supreme Court reversed the conviction for the attempted rape specification because

the attempted rape was not supported by sufficient evidence. State v. Davis, 76 Ohio

St.3d 107 (1996), Apx. 83a (“Based on the evidence presented, we find there was

insufficient evidence to prove beyond a reasonable doubt that Davis attempted to rape

Perkins.”). Therefore, it is simply a gross mischaracterization of the record to assert

Respondent “brutally raped”.

Further, Petitioner’s statement of the case creates confusion as to when the

constitutionally deficient instructions and verdict forms were given to Respondent’s jury

and also incorrectly descnbes Ohio death penalty procedures. Petitioner partially

provides the instructions found by the Court of Appeals to be unconstitutional. Petition

pp. 7-8. Thereafter, Petitioner notes “[a]fter deliberating, the jury convicted Davis of all

counts listed in the indictment and recommended death sentences for the two aggravated

murder counts.” Petition pp. 8-9. This incorrectly describes the chronology of

Respondent’s case as well as Ohio death penalty procedures.

First, the jury had already convicted Respondent of some of the cnmes charged

and the death penalty specifications prior to hearing the flawed instructions and recetving

the flawed verdict forms. Contrary to Petitioner’s statement, the determination of

sentence was subsequent to, not at the same time, as a determination of guilt.

Second, Ohio provides a bifurcated system. An initial culpability phase occurs,

which may or may not lead to a subsequent penalty phase. The jury determines guilt of

the underlying crimes as well as the specifications at the culpability phase. The jury’s

finding as to guilt of the specifications serves two purposes in Ohio, as described by the

Ohio Supreme Court, it provides the required narrowing function under Furman and its

progeny, and determines death eligibility. State v. Henderson, 39 Ohio St.3d 24 (1988)

(guilt finding as to specs performs the narrowing/eligibility function).

If a jury finds a defendant guilty of aggravated murder and a death specification,

only thereafter does a defendant become death eligible. At which point, the penalty °

phase commences. An Ohio jury must decide and answer two questions at the penalty

phase. First, the individual jurors must determine whether any mitigating factors exist.

Second, the jury weighs the aggravating circumstances against the mitigation, and then

determines which sentence to recommend. Both of these decisions were constitutionally

corrupted by the unique instructions and verdict forms given to Respondent's jury.

Simply, the Sixth Circuit considered the unique instructions and verdict forms

given to Respondent’s jury. In so doing, the court identified the correct standard from

this Court. Davis, 318 F.3d at 688, Apx. 12a, citing Jones v. United States, 527 U.S. 373

(1999) and Boyde v. California, 494 U.S. 370 (1990) (“whether there is a reasonable

likelihood that the jury has applied the challenged instruction in a way that violates the

constitution”).

The court acknowledged the unique instructions and verdict forms under

consideration. Respondent's jury had just been imstructed as to the two decisions they

were required to make: the preliminary question as to eustence of mitigation and the

ultimate decision as to the weighing of aggravation versus mitigation immedtely.

thereafter the jury was instructed “since this is a criminal case the law requires that

order for you to reach a decision all 12 of you must be in agreement.” Dayis. at 689-90,

Apx. I4a This significant language, as well as the requirement of twelve signatures

signifying acquittal of death before a life verdict could even be consdered (id ). wtech

lead the court to conclude “the inescapable likelihood im thes case is that the pury ender

stood the instructions to require unarumuty im both its ultimate and imterum conchamons

violates Mills ” Davis, at 90, Apx. 15a. The court thus granted relief on the ground that

Respondent was denied his nghts at the penalty phase of the tnal as guaranteed by Mulls

v. Maryland, 486 U.S. 367 (1988) and McCoy v. North Carolina. 494 U S 433 (1990)

Petinoner wholly mischaractenzes the baus of the court's opemon Petitioner

contends that the court granted relef solely on the bases that Respondent's parry was aot

instructed as to what occurs if they are deadlocked Petthoner contends thes cresars

conflict with Jones, $27 U.S. 373,’ and a host of Circuit authority that has applied Jomes

Like Petinoner’s misleading asserhons as to the “brutal rape.” thes os yet agers 2 cheer

misstatement of the ruling of the court of appeals

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the consequences for a potennal faslure to agree ~The Panel appleed Boyde and found

error because the instrucbons and verdsct forms volsted Mills by reqeering purer

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LL THE QUESTIONS PRESENTED CONTAIN MISSTATEMENTS

AND MISCHARACTERIZATIONS OF THE RECORD

Ac ae emtal matter the quewbom presented by Petrone: are misicading and

comtaes orical eecharacterizapom of the legal neues comsdered by the Sixth Circuit

Th Geer gucihom preuemied ty Petspomer concern whether the Sixth Circust failed to

foflow the cheat extsbiahed suthorty of the Court mm that the Sexth Circust found error

Que to the Gesbure to emetrct the pury thst they need not be unamumous Petrpon.

areata

Thee cemmpty ct mot tre Fert Respondent mewer alleged below that the faslure to

eet mirahom engendered camituponsl error Rather Respondent argued that the

omairatom and verdect form: wmgue to he case wolsted Mills The fact Respondent

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Creves, 208 F Dd at 689-42, Age N4e-1 7a Thus veoleting Mills id

Tie Scott ( ttm 0 cpman enerety agptend Gee Court + authorty to the sere: of

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#06 S 570 Gee Dees 218 F Od ot O88 Ape 12a (whether there ms 2 reasonable

likelihood that the jury has applied the challenged instruction in a way that violates the

constituton™) (citations omitted). Applying Boyde, the Panel concluded Respondent’s

jury received an improper “acquittal first” instruction and verdict forms, and the

mstructions required unanimity as to the existence of mitigating evidence before it could

be weighed. Id at 689-92, Apx. |4a-17a. Thus the Panel ruled these two instructional

errors violated the Eighth Amendment as interpreted by this Court in Mills by requiring

unanimity as to the preliminary question (existence of mitigation) and as to the ultimate

sentencing question (no life option until all jurors acquit of death). Id.

In this regard, Petitioner attempts to manufacture her questions presented and

thereby create a conflict with Jones, 527 U.S. 373. In her attempt to manufacture a }

conflict, Petthoner emphasizes and takes out of context a few sentences from the court's

opimon. Petition p. 14

As previously noted however, the court did not fault the trial court for failing to

instruct on what occurs upon jury deadlock, but faulted the state court for “obscuring” the

jury's ability to consider and give effect to mitigation without the unanimous approval of

all jurors. Davis, at 689, Apx. I4a. Thus, the court concluded Respondent's acquittal first

instructions present “an entrely different imstruction from one that clearly informs the

jurors that a life verdict can be rendered by a jury that has not first unanimously reyected

the death penalty ~ id.

Stated another way, the court did not reverse for failing to give the instruction, but

merely noted that without such istruction and in the unique circumstances of

Respondent 's case, a reasonable jury would understand the instructons and verdict forms

as denying the ability to give effect to mitigation unless and until, an acquittal of death

Lae

In sum, in seeking certiorari, Petitioner has misstated and mischaracterized the

legal basis of the court’s opinion. Given this clear mischaracterization, Petitioner is thus

asking this Court to review an issue that is not even presented by the judgment below.

Because the questions posed by Petitioner are not presented in the record, the questions

cannot be reviewed and the petition must be denied.

IL THIS COURT DOES NOT NEED TO REVIEW THE LOWER

COURTS’ APPLICATION OF SETTLED LEGAL PRINCIPLES

TO THE UNIQUE INSTRUCTIONS AND VERDICT FORMS

PROVIDED RESPONDENT’S JURY

The writ should also be denied because this case presents no compelling reason

for review, as Petitioner merely requests that this Court review the Sixth Circuit’s

application of settled legal principles to the unique instructions and verdict forms

provided to Petitioner’s jury. Indeed, the court identified the governing legal standard,

Boyde. Davis, 318 F.3d at 688, Apx. 12a. Applying, Boyde, the court examined whether

the aieten in Respondent’s case violated Mills. Davis, at 687-88, Apx. 10a-1 la.

Indeed, Petitioner recognizes that Mills is the clearly established and applicable

controlling authority. Petition p. 13 (“It is well-settled law that a State cannot require

jurors during capital sentencing deliberations to consider only those mitigating factors

that the jury unanimously finds are present. See Mills, 486 U.S. at 374-375; McCoy, 494

US. at 435.”)’ Petitioner also does not dispute the content of the instructions. With the

facts and the law to be applied not in dispute, and with the lower court simply having

applied those facts to the applicable law, it is clear that the writ should be denied because

this Court is not in the business of conducting third-tier reviews of the same application

of law to undisputed facts

’ This recognition of Mills contradicts in large measure Peutioner's allegations that the basis of the court's

ruling 1s not “clearly established ~

Authority cited by Petitioner demonstrates the unique and fact-intensive manner

of this inquiry. For instance, given the unique instructions in Zettlemoyer v. Fulcomer,

923 F.3d 284 (3™ Cir. 1991),* the habeas petitioner could not state a claim for relief under

Mills. Thereafter, given the unique instructions in Frey v. Fulcomer, 132 F.3d 916 (3d

Cir. 1997), the habeas petitioner could state a claim for relief under Mills. A Mills error

is not a “one size fits all error.” It requires a reviewing court to apply the Boyde test to

determine whether the instructions and verdict forms violate Mills. On a case-by-case

basis, a review:ng court must faithfully apply Boyde to the instructions before it.” Thus,

Boyde rebuts Petitioner’s suggestion that Mills is a “one size fits all error,” rather, it

reinforces that Petitioner simply disagrees with the court’s result.

Petitioner, therefore, makes the unexceptional request that this Court grant

certiorari to review properly stated, settled legal principles to the unique instructions and

verdict forms of this case. Under such circumstances, certiorari is simply not warranted.

See U.S.S.Ct.R. 10 (certiorari not warranted where lower court applied facts to properly

stated rule of law); Kyles v. Whitley, 514 U.S. 419, 456 (1995\Scalia, J., dissenting).

* Petitioner alleges the instructions in Zettlemoyer are close to Respondent’s case. This is not true.

Zettlemoyer did not concern an instruction, as given Respondent’s jury, that “since this is a criminal case

the law requires that in order for you to reach a decision all 12 of you must be in agreement.” Further, the

state court in Zettlemoyer used “verdict” in its instructions. However, Respondent’s jury was not instructed

as to their “verdicts” but was instructed that any “decision,” which would include whether mitigation

existed, required the agreement of all 12 jurors (see Tr. 1885 lines 16-17, Apx. 103a; Tr. 1885 lines 20-25 -

1886 lines1-3, Apx. 104a.), and Respondent’s jury received an acquittal first instruction. Tr. 1889 lines 13-

18, Apx. 10Sa-106a. Applying Boyde. the Panel reasonably concluded that a reasonable jury would

understand this combination of instructions to require all 12 jurors to agree as to the existence of mitigating

evidence. Davis, at 689-692, Apx. 14a-17a. This demonstrates precisely why this issue is not amenable to

cert. This Court is not a court of error and does not need to parse through and compare instructions in

verdict forms from varying cases to determine if a federal court correctly resolved a claim.

asent re nn a — marge In that, just because this Court found

counsel ineffective in Wiggins v. Smith, _ ___, 123 S. Ct. 2527(2003), will not necessarily lead to

RE re rte ~ Wiggins simply reinforces the Strickland standard and

a state court’s obligation to faithfully apply such standard. It does not relieve any court, state or federal, of

its obligation to apply the standard to each cases facts.

Ii. THE MILLS RULING IS CORRECT

While the petition should be denied because it seeks review of the lower courts’

application of the law to the facts to unique instructions and verdict forms, the petition

should also be denied because the judgment below is correct under Mills, 486 U.S. 367

and McCoy, 494 U.S. 433.

The trial court unequivocally stated that “you, the trial jury” was responsible for

the decisions to be made during the penalty phase. Tr. 1888 line 1, Apx. 105a. “[Y]Jou,

the trial jury” must consider all evidence and determine whether the aggravating

specifications found outweigh any mitigating factors “you find that are present in this

case” Tr. 1888 line 11-12, Apx. 105a . This makes it absolutely clear that “you” is “the

trial jury” not only as to this instruction, but as to all the penalty phase instructions as

well. Consequently, the trial jury -- not individual jurors -- makes the two decisions

(existence of mitigation and sentencing decision) at the penalty phase.

The jury was also instructed that “you are to decide whether it is a relevant factor

of mitigation.” Tr. 1885 lines 16-17, Apx. 103a. Immediately thereafter, this concept

was reinforced “you will be called upon to decide the factual questions as to whether or

not the defendant” has produced mitigation, that is “has the defendant met the burden of

going forward with” mitigating evidence. Tr. 1885 lines 20-25 — 1886 lines1-3, Apx.

104a.

In short, the existence of mitigation therefore is a factual decision which “you, the

jury” decide. In other words, a decision is made by all twelve jurors, not just one. This is

later conclusively established when the court states “[n]ow, as you know, since this is a

criminal case the law requires that in order for you to reach a decision all twelve of you

must be in agreement.” Tr. 1892 lines18-21, Apx. 107a.

Further, the trial court improperly instructed Respondent’s jurors that they could

not give effect to the mitigation -- consider a life sentence — until they had first

acquitted, unanimously, Respondent of the potential death sentence. Tr. 1889 lines 13-18,

Apx. 105a-106a. Until the unanimous acquittal on death, the jury could not give effect to

any mitigating evidence.°

As a consequence of the above instructions, there is, at the very least, a reasonable

likelihood that the jury would have understood that in making the factual findings of

mitigation that they had to do so as a jury and unanimously. Further, the jury could not

give effect to the mitigation — consider life options — until unanimously rejecting death.

This violates the well-settled law that a State cannot require jurors during capital

sentencing deliberations to consider only those mitigating factors that the jury

unanimously finds are present. See Mills, 486 U.S. at 374-375; McCoy, 494 U.S. at 435.

Thus, the Sixth Circuit rightly concluded that the instructions would cause a

reasonable jury to impose a unanimity requirement as to the existence of mitigation.

Nothing about the panel’s analysis is either incorrect or exceptional. The panel’s

conclusion in applying settled principles to the unique instructions and verdict forms

herein was correct. Certiorari should be denied. See also U.S.S.Ct.R. 10.

® This erroneous instruction mirrored comments made by the trial court to the prospective jurors during

group voir dire. Specifically, the trial court informed the prospective jury panel, including all twelve of

Respondent’s jurors, that “[o]n the other hand, if you find that the aggravating circumstances do not

outweigh the factors in mitigation beyond a reasonable doubt then you would be given the opportunity to

impose a sentence of life imprisonment.” Tr. 466, Circuit Jt. Apx. 126 (emphasis added).

ie

IV. THERE IS NO INTERCIRCUIT OR INTRACIRCUIT CONFLICT

The wnit should also be denied because, contrary to Petitioner’s assertions, there

is no conflict between the judgment below and the decision of any other federal court of

appeals. See U.S.S.Ct.R. 10(a). Petitioner cites various cases to claim that the judgment

below conflicts with judgments of other lower courts. All of the cases cited as supporting

a purported conflict rely on the manufactured Jones conflict.

There is absolutely no conflict with Jones because the court below did not find

constitutional error for the failure to instruct. Consequently, this Court must deny

Petitioner’s certioran request.

Petitioner also claims that the Sixth Circuit’s application of the law to the facts

here is in conflict with other Sixth Circuit authority considering varying instructions. See

Petition p. 21. Contrary to Petitioner’s assertians, there simply is no conflict between the

Court of Appeals’ judgment and its prior judgnents.

The court’s decision is fully reconcilabe with the other circuit authority. For

example, Scott v. Mitchell, 209 F 3d 854, 875 6" Cir. 2000) (“this instruction plainly

applies to the overall weighing of mitigating aad aggravating factors”), noted that the

instructions were not “acquittal first” instructions, but “consider first” instructions.’

Indeed, the Sixth Circuit consistently recognizes “acquittal first” instructions are

’ The instructions given to Scott are not identical to thoe given Respondent’s jury as noted by the court

below

that is, you must find that the state has failel to prove beyond a reasonable doubt

that the aggravating circumstances which tie defendant was found guilty of

committing outweigh the mitigating factors.

In this event you will then proceed to determite which of the two possible life

imprisonment sentences to recommend to the “ourt.

Davis, at 685, Apx. Sa (bold not given in Scott). Respmdent’s verdict forms, unlike Scott’s, required the

jury to make a unanimous finding acquitting of death before considering the life options. Davis, at 689-

690, Apx. 14a-16a. Finally, Scott did not address any +f the instructions Respondent presented to this

Court in his third basis for not granting the writ. See pp 10-11. This again underscores the factual

uniqueness of Respondent’s case.

constitutionally deficient under the Eighth Amendment. See Henderson v. Collins, 262

F.3d 615, 622 (6" Cir. 2001) (“reversal of a capital sentence is warranted”); Buell v.

Mitchell, 274 F.3d 337, 355-56, n. 8 (6™ Cir. 2001); Roe v. Baker, 316 F.3d 557 (6" Cir.

2002).

As found by the court, Respondent’s jury was instructed “Death, but if you

unanimously reject death, only then can you consider 30 to life or 20 to life.” This is a

far cry from the instructions in the other claimed conflict cases: “start with considering

death, but also consider 30 to life or 20 to life.” That being said the Petitioner’s ment

brief below correctly noted and conceded that there is no principle distinction between

the “acquittal first” error and a violation of Mills. Petitioner’s Sixth Circuit Final Bnef

pp. 25-26.

Finally, it should be noted that the named Petitioner herein has recognized this

distinction. In McNeill v. Mitchell, Case No. 1:02 CV 1645 (N.D. Ohio) (Wells,

J. (pending), Petitioner noted the differences between “consider first” and “acquittal first”

instructions. EFP Docket No. 40 at p. 109. This contradicts Petitioner’s allegation

herein.

This eviscerates Petitioner’s suggestion of an intracircuit conflict. Again, a Mills

error is not a “one size fits all error.” A reviewing court must faithfully apply Boyde on a

case-by-case basis to the instructions before it. Boyde denounces Petitioner’s belief that

there can never be a Mills violation in Ohio because the Sixth Circuit Court ruled in Scott

that there was no Mills violation. Likewise, just because Respondent’s unique

instructions satisfied Mills will not lead to an exodus from Ohio’s death row.

Even if an intracircuit conflict exists, which Respondent asserts one does not

exist, this Court’s certioran junsdiction is not properly invoked to resolve an intracircuit

conflict, See Davis v. United States, 417 U.S. 333, 340 (1974), much a less an intra-

circuit conflict which the lower court’s members found so lacking in ment as no member

of the court requested a vote. Therefore, the Court must deny the cert request.

CONCLUSION

For the above reasons, the Petition for Wnt of Certioran should be denied.

_Respectfully submitted,

Cr

eo ee Oe ae

_/LAURENCE E. KOMP* J

en omey at Law

423 Madrina Ct.

Ballwin, MO 63021

(636) 207-7330

(fax (636) 207-7351

*Counsel of Record

JOHN P. PARKER

Attorney at Law

4403 St. Clair Ave.

Cleveland, OH 44103

(216) 881 — 0900

(fax216) 881 — 3928

COUNSEL FOR RESPONDENT,

WILEY DAVIS, JR.