Opposition Brief — Davis v. Terry (No. 06-1407)

(3) FILED

No. 06-1407 “AY 2 3 2007

OFFICE OF THE CLERK

In The SUPREME COURT, U.S.

Supreme Court of the Anited States

¢

TROY ANTHONY DAVIS,

Petitioner,

v.

WILLIAM TERRY, WARDEN,

GEORGIA DIAGNOSTIC AND

CLASSIFICATION PRISON,

Respondent.

es

vv

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

®

BRIEF IN OPPOSITION

ON BEHALF OF RESPONDENT

5

THURBERT E. BAKER

Attorney General

MARY BETH WESTMORELAND

Deputy Attorney General

SUSAN V. BOLEYN

Senior Assistant Attorney General

Counsel of Record

Please serve:

SUSAN V. BOLEYN

Senior Assistant Attorney General

40 Capitol Square

Atioata, Coenen 10824-1300 BEST AVAILABLE COPY

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

ee

Whether Petitioner can complain that no court has

considered his “substantive actual innocence” claim, when

he failed to present a “substantive actual innocence” claim

in the federal habeas corpus court or on appeal to the

Eleventh Circuit?

2.

Whether Petitioner can complain when the federal

habeas corpus court conducts a “merits” review of Peti-

tioner’s constitutional claims without requiring the peti-

tioner to meet the gateway inquiry of Schlup v. Delo, 513

U.S. 298 (1995)?

3.

Whether certiorari review is unwarranted in Peti-

tioner’s case, as the procedural history clearly demon-

strates that Petitioner’s assertion that the federal courts

“ignored” his “actual innocence” claim is unfounded?

4.

Whether certiorari review in this case is unwarranted

as it is clear that both the federal habeas corpus court and

the Eleventh Circuit properly analyzed Petitioner’s claims

in light of Schlup v. Delo, 513 U.S. 298 (1995) and AEDPA

principles?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.................ccsscccsscseessescees i

PA BLE OF COP iret ein titcencececsarscsveasoctececsyoccccecees ii

"FABLE OF Ferreira 1 ae ttthcddcteserdvccdesoseseveconccoseess iv

DENIAL OF SPECIFIC “FACTS” SET OUT IN THE

PS FE iets ccinck ccc es anaes ada tasecneevensneseses 1

STATEMENT OF THE CASE. ...........cccccscsssrsssececscvees 1

(a) Trial Proceedings in the Superior Court of

Chatham County (1989-1991) .........eeeeeeeeeeees 1

(b) Motion for New Trial Proceedings (1991-

| | IRI IAS ERIS SEAN OR 6

(c) Consolidated Direct Appeal to the Georgia

Supreme Court (1992-1993) ..............cceseseeeeees 8

(d) State Habeas Corpus Proceedings (1994-

NE fh PRR OS A Se 9

(e) Appeal to the Georgia Supreme Court from

the Denial of State Habeas Corpus Relief

i BREN Re SAO EEN SO 13

(f) Federal Habeas Corpus Proceedings (2001-

ON cece as ea I ede eh chee casansaosevseoss 13

(g) Appeal to the Eleventh Circuit Court of

Appemls (ZODG- ZIG) occ ceveseseseseesssssscccscevsecosesys 15

STATEMENT OFF Tite BIC E viscvescacvvesscacicecvoscnssenes 17

TABLE OF CONTENTS -— Continued

Page

I. THE FACT-SPECIFIC APPLICATION OF

THIS COURT’S DECISION IN SCHLUP V.

DELO, 513 U.S. 298 (1995), WHICH RE-

SULTED IN PETITIONER’S SUBSTANTIVE

CLAIMS FOR RELIEF BEING REVIEWED

BY THE FEDERAL COURTS PRESENTS

NO ISSUE WARRANTING THIS COURT'S

EXERCISE OF ITS CERTIORARI JURIS-

EPTFE PAA -snissovecssuseutcsgeiountinieceeboteedaasamosmmutnies 21

A. Petitioner cannot complain that no court

has considered his “substantive actual

innocence” claim, when the Eleventh

Circuit expressly stated that Petitioner

“does not make a substantive claim of ac-

Seah TONE hn dciceccstsiceveinckinicdictvecsctanvin 21

B. The federal courts applied this Court’s

decision in Schlup v. Delo, 513 U.S. 298

(1995), in a manner benefiting Petitioner

and their fact-specific application of

Schlup presents no issue warranting re-

WHO TG TID CGE si ces reseserccccsedvtrbiicnsinimes 23

C. This case does not constitute the proper

vehicle to revisit Schlup’s “gateway” pro-

WHUUUDE cick ccctninvenicteceentciaviiinnnaamaaaaens 27

COIN LATIN ecctnsicinisnsncsvenierevssipnerennaerere tenn 28

iv

TABLE OF AUTHORITIES

Page

SUPREME COURT CASES:

Davis v. Georgia, 510 U.S. 950 (1993) ...........cccsscccesssereeeees 9

Heckler v. Campbell, 461 U.S. 458 (1983) ..........:ceceseeeees 22

Jackson v. Virginia, 443 U.S. 307 (1979)........cccccsessrereeeees 9

Kentucky v. Stincer, 482 U.S. 730 (1987).........cccccccecerrseees 22

Nike, Inc. v. Kasky, 539 U.S. 654 (2008)..........ccseccceseeees 28

Rice v. Sioux City Cemetery, 349 U.S. 70 (1955) .............. 28

Schlup v. Delo, 513 U.S. at 316 (1995)... eee passim

Texas v. Mead, 465 U.S. 1041 (1984) ...ssssecssssssssesserssseeseee 28

United States v. Johnson, 268 U.S. 220 (1925) .............06 28

CIRCUIT COURT CASES:

Davis v. Terry, 465 F.3d 1249 (11th Cir. 2006) .......... passim

STATE CASES:

Davia v. Stabe, TBS GO. 6 (19GB) ccncccncccsvcccecccctescseececsenseoss 8,9

Davis v. Thomas, 266 Ga. 835 (1996) ............cccceeseesseseesees 10

Davis v. Turpin, 273 Ga. 244 (2000) ..........ceccceececcceeeeceeeees 13

1

DENIAL OF SPECIFIC “FACTS”

SET OUT IN THE PETITION

Respondent denies Petitioner’s factual assertion that

he has “compelling new evidence” of his “innocence” and

that his post-trial affidavits “show that constitutional

violations led to the conviction of an innocent man.” (See

Federal Habeas Court Order of 3/10/03, denying eviden-

tiary hearing, pp. 37-41).

Respondent also denies Petitioner’s assertion that “no

court has assessed the credibility of Mr. Davis’ new evi-

dence that underlies both his innocence and constitutional

claims.” (See Federal Habeas Court Order of 3/10/03,

denying evidentiary hearing, pp. 5-22).

¢

BRIEF IN OPPOSITION

ON BEHALF OF RESPONDENT

PART ONE

STATEMENT OF THE CASE

(a) Trial Proceedings in the Superior Court of

Chatham County (1989-1991)

Petitioner, Troy Anthony Davis, was indicted in

Chatham County, Georgia on November 15, 1989, for the

murder of Officer Mark Allen McPhail, obstruction

(against Officer Mark Allen McPhail), two counts of

aggravated assault and possession of a firearm during the

commission of a felony. At trial, conducted on August 19-

30, 1991, Petitioner was represented by Robert Falligant

and Robert Barker.

During opening statement, defense counsel Barker

argued, “You’re going to hear a story that is going to be

2

unbelievable. You are going to see a cast of characters that

you will never have seen before, and they are unbeliev-

able, and I mean that in any sense. They are just not

worthy of belief.” (T. 682.)’

Petitioner Davis testified in his own behalf at trial.’

Petitioner admitted that he was at the scene of the shoot-

ing, but claimed he did not see who shot Officer McPhail

because he was running away from the shooting and never

looked back to see who did the shooting. (T. 1424; 1435).

Petitioner specifically testified, “I heard the shot, but I

didn’t exactly see the shooting.” (T. 1435).

As to Kevin McQueen, the jailhouse informant who

testified that Petitioner admitted shooting Officer

McPhail, Petitioner Davis claimed in his trial testimony

that he did not know McQueen, that he had never made a

statement to McQueen and that he was never in the same

cell with McQueen. (T. 1459). Petitioner testified that he

did not know- Kevin McQueen personally and did not play

basketball with McQueen. (T. 1431-1434). Petitioner Davis

specifically denied ever telling McQueen that he killed the

cop. (T. 1434).

Petitioner also denied that he shot Michael Cooper at

the party in Cloverdale, which occurred the day before

Officer McPhail’s murder. In fact, Petitioner claimed that

' T. 679-683. (The transcript of Petitioner’s trial is contained in

Respondent’s Exhibit Nos. 15-21 filed in the federal habeas corpus

court. References to the transcript of Petitioner’s trial will be desig-

nated by “T.,” followed by the appropriate page number. References to

Respondent’s Exhibit Nos. refer to the exhibits submitted in the district

court.)

* 'T. 1415-1459.

he did not know Michael Cooper and saw him for the first

time in the courtroom. (T. 1435).

Defense counsel for Petitioner presented the following

five witnesses during the guilt-innocence phase of Peti-

tioner’s trial. Joseph Washington (T. 1339); Shelley Sams

(T. 1352); Tonya P. Johnson (T. 1357); Jeffery Sams (T.

1372-1373) and Virginia Roberts Davis. (T. 1385).

Even during his trial, Petitioner claimed that Syl-

vester “Red” Coles was the murderer of Officer McPhail.

Red Coles testified during Petitioner’s trial and was

extensively cross-examined by defense counsel.’ (T. 899-

974). However, Red Coles did not implicate Petitioner in

the shooting of Officer McPhail, but merely stated that he

and Petitioner were tozether when the shooting occurred.

(T. 938-942). Red Coles testified he never saw Petitioner

fire any shot that night and did not know who shot Officer

McPhail. (T. 942).

During defense counsel’s guilt phase closing argu-

ment,’ defense counsel Robert Falligant argued:

The first evidence and information they ever had

in this case came from the mouth of the witness

that the State put on the stand, and that was

Sylvester Red Coles, the same individual who

admitted having a gun, the same individual that

numerous witnesses identified as having a gun

that night, the same individual who admitted

that he ran, he changed shirts, tried to conceal

* The cross-examination of Red Coles appears on T. 919-951 of the

guilt-phase transcript.

4

Defense counsel’s closing argument appears on pages 1506-1550

of the trial transcript.

4

his identity, the same individual who admitted

he ran to a lawyer and turned himself in at four

o'clock, but not to surrender for a crime, but to

give the police the name of the person that they

should be looking for.

And he gave them the name of Troy Anthony

Davis, and from that point on, the entire focus of

this investigation was not in deciding and finding

the truth of this case as to who actually commit-

ted these crimes that the Defendant is now on

trial for, but it was to find evidence to convict the

Defendant of these crimes.

You see, at that point, the police knew, after talk-

ing to Sylvester Coles, that he, D.D. Collins, and

the Defendant were on the lot that night. And yet

what did the police do? They bought Mr. Coles’

story hook, line, and sinker. They never consid-

ered Mr. Coles to be a suspect. They never con-

sidered Mr. Collins to be a suspect. What they

considered them to be was witnesses.

They never questioned for one minutes (sic) the

truth of what Sylvester Coles had to tell them.

And then began this investigation. And they

went out into this community, and they rounded

up witnesses everywhere they could find them,

and they paraded them in here, and Mr. Lawton

talks about the overwhelming evidence in this

case. We were overwhelmed by the number of

witnesses in this case. But what about the qual-

ity, the credibility of those witnesses?

You, the jurors in this case are the sole judges of

the credibility of those witnesses. ... Seven wit-

nesses put on that stand by the State of Georgia

recanted, contradicted, or changed their testi-

mony. ... Many of those witnesses who came into

5

this courtroom and changed their testimony and

said, the first thing out of their mouth was, I’m

not going to lie now. I want to tell the truth....

And let’s talk about how those statements were

taken....

(T. 1507-1509).

Defense counsel also argued that there were “striking

similarities in facial features” between Petitioner and Red

Coles. (T. 1511). Later, defense counsel argued that Red

Coles, not Petitioner, had the motive, means and opportu-

nity to commit the murder. (T. 1518-1519).

As to jailhouse informant, Kevin McQueen, defense

counsel argued, “Look at his record and see if you can

attach any credibility to the story that he told” and “let’s

look at the story he told.” (T. 1535-1536). Defense counsel

again challenged McQueen’s credibility by arguing, “I don’t

know why they even put a man like Kevin McQueen on

the stand. The outrageous story that he concocted doesn’t

even begin to mesh, or it’s not even similar to the incidents

that occurred that night. But it was done to prejudice you.”

(T. 1537).

Finally, defense counsel argued, “This case is replete

with reasonable doubt, and I submit to you that in your

quest for the truth, what this case is all about, as you sift

through this evidence and you review your notes about the

consistencies, the prior inconsistent statements, the _

outright lies, the fabrications of the State’s witnesses, if

you reach the conclusion that the State has not carried its

burden beyond a reasonable doubt, then as the Court will

charge you, you'll be bound to acquit. the Defendant.” (T.

1549-1550).

6

On August 28, 1991, Petitioner was found guilty of one

count of malice murder, one count of obstruction of a law

enforcement officer, two counts of aggravated assault and

one count of possession of firearm during the commission

of a felony.

Petitioner Davis also testified during the sentencing

phase of his trial. (Sentencing phase transcript, p. 52-67.)

Petitioner Davis asked the jury to spare his life, saying

that “at the present time you’ve found me guilty of some

offenses that I did not even commit.” (T. 65). Defense

counsel argued during sentencing phase closing argument

that, “I know you've convicted Troy, and we have to accept

that decision you’ve made. I know you've convicted him

beyond a reasonable doubt. If in your mind there’s certain

little nagging lingering doubts, I hope you'll consider those

today.” (Sentencing phase transcript, p. 80).

Following the penalty phase, Petitioner was sentenced

to death for the murder of Officer McPhail on August 30,

1991. .

(b) Motion for New Trial Proceedings (1991-1992)

On September 12, 1991, the trial court appointed

Petitioner’s trial attorneys, Mr. Falligant and Mr. Barker,

to represent Petitioner on appeal and appointed another

attorney, Mr. C. Jackson Burch, to represent Petitioner

specifically as to any issue of ineffective assistance of

counsel which Petitioner might want to raise.

* The transcript of the sentencing phase was Respondent’s Exhibit

No. 21 in the district court.

On October 1, 1991, Petitioner’s original trial attor-

neys, Falligant and Barker, filed a motion for new trial on

Petitioner’s behalf, raising three grounds. On December 2,

1991, the trial court scheduled “the hearing on any poten-

tial ineffective assistance of counsel claims to immediately

follow Defendant’s hearing on his motion for new trial.”

Mr. Falligant and Mr. Barker filed an amended

motion for new trial, raising 26 grounds on February 14,

1992 and the hearing on this motion was held on February

18, 1992. Following Mr. Barker’s presentation and argu-

ment of certain issues raised in the amended motion for

new trial, co-counsel, Mr. Falligant, argued various addi-

tional portions of the amended motion for new trial and

requested briefing on those issues. (MNT 11-22).°

Following the portion of the hearing on the motion for

new trial conducted by trial counsel, Mr. Burch presented

the portion of the hearing raising claims of trial counsel

ineffectiveness. (MNT 25-42). Petitioner’s lead trial coun-

sel, Mr. Falligant, appeared and testified at this hearing.

(MNT 33-40).

Immediately following this hearing, Mr. Burch filed

an “Amendment to Motion for New Trial as to Ineffective

Assistance of Trial Counsel,” raising 16 different grounds

of ineffective assistance of trial counsel. On February 28,

1992, Mr. Falligant and Mr. Barker filed an amendment to

the amended motion for new trial, asserting an additional

* References to the transcript of the February 18, 1992 motion for

new trial hearing will hereinafter be designated by “MNT” followed by

the appropriate page number. The transcript of Petitioner’s motion for

new trial was submitted as Respondent’s Exhibit No. 22 in the district

court,

ground. On March 12, 1992, the trial court denied Peti-

tioner’s ineffective assistance of counsel claim and also

denied Petitioner’s motion for new trial, as amended, on

March 16, 1992.

(c) Consolidated Direct Appeal to the Georgia

Supreme Court (1992-1993)

On appeal to the Georgia Supreme Court, the Court

noted it was consolidating Petitioner’s two appeals before

the Court. See Davis v. State, 263 Ga. 5 (1993).

Petitioner’s convictions and death sentence were

unanimously affirmed by the Georgia Supreme Court in

the consolidated appeal in Davis v. State, 263 Ga. 5 (1993).

In its decision, the Georgia Supreme Court summa-

rized the facts presented at Petitioner’s trial as follows:

At midnight, on August 18, 1989, the victim, a

police officer, reported for work as a security

guard at the Greyhound Bus Station in Savan-

nah, adjacent to a fast food restaurant. As the

restaurant was closing, a fight broke out in

which Davis struck a man with a pistol. The vic-

tim, wearing his police uniform — including

badge, shoulder patches, gun belt, .38 revolver,

and night stick ~ ran to the scene of the distur-

bance. Davis fled. When the victim ordered him

to halt, Davis turned around and shot the victim.

The victim fell to the ground. Davis, smiling,

walked up to the stricken officer and shot him

several more times. The officer’s gun was still in

his holster.

The victim wore a bullet-proof vest, but the vest

did not cover his sides and the fatal bullet en-

tered the left side of his chest and penetrated his

a

9

left lung and aorta, and came to rest at the back

of his chest cavity. The officer was also shot in

the left cheek and the right leg.

The next afternoon, Davis told a friend that he

had been involved in an argument at the restau-

rant the previous evening and struck someone

with a gun. He told the friend that when a police

officer ran up, Davis shot him and that he went

to the officer and “finished the job” because he

knew the officer got a good look at his face when

he shot him the first time.

After his arrest, Davis told a cellmate a similar

story.

Davis v. State, 263 Ga. 5, 6 (1993).

The Georgia Supreme Court also specifically found

that the evidence presented at trial was sufficient to

support the verdict, by stating that, “The evidence sup-

ports the conviction on all counts. Jackson v. Virginia, 443

U.S. 307 (99 S. Ct. 2781, 61 L. Ed. 2d 560) (1979).” Davis v.

State, 263 Ga. 5, 7 (1993).

The Georgia Supreme Court also rejected the claims of

ineffective assistance of counsel which had been raised in

Petitioner’s motion for new trial. Davis v. State, 263 Ga. 5,

10 (1993).

Petitioner’s petition for a writ of certiorari was denied

by this Court in Davis v. Georgia, 510 U.S. 950 (1993).

(d) State Habeas Corpus Proceedings (1994-1997)

On March 15, 1994, the Georgia Appellate Practice

and Educational Resource Center, Inc. filed a habeas

10

corpus petition. On August 28, 1995, counsel for Petitioner

filed a notice of withdrawal of named counsel and motion

to continue, or alternatively, motion to withdraw, in the

Butts County Superior Court and filed a supplemental

motion to continue on October 13, 1995. On October 19,

1995, these motions were denied.

On November 13, 1995, Petitioner filed a petition for

immediate review of the order denying continuance in the

Georgia Supreme Court. The Georgia Supreme Court

granted the petition for immediate review and on May 28,

1996, concluded that the habeas corpus court abused its

discretion in denying Petitioner a continuance. Davis v.

Thomas, 266 Ga. 835, 471 S.E.2d 202 (1996).

Petitioner filed a 79-page amendment to his state

habeas corpus petition, raising 15 claims for relief, on

November 6, 1996. During the state habeas corpus eviden-

tiary hearing held on December 16, 1996, all four of

Petitioner’s trial counsel testified and Petitioner presented

33 affidavits. During this hearing, Petitioner was not

restricted in the type of evidence that he could present.

During the state habeas corpus hearing, Petitioner’s

lead trial attorney, Robert Falligant, testified that the real

issue at trial was:

whether or not he [Davis], in fact, was the person

who committed the crimes. And, quite frankly,

based on the information that we had and the

evidence I had, it appeared it was a very good

likelihood that Sylvester Coles, also known as

Red, was the one who actually killed Officer

McPhail and shot, well not so much shot Michael

Cooper, but the main issue in my case was the

death of Office McPhail, and basically that is the

11

emphasis we put on the investigation and what

we were looking for.

(State habeas corpus transcript, volume 1, pp. 125-126).’

Mr. Falligant also testified concerning trial counsels’

investigation of the case, by stating, “there is no way to

say how many people we talked to. This case, there were

so many rumors and so much talk on the street. We

extensively investigated the case.” (State habeas corpus

transcript, p. 183). “We hired, we got funds for an investi-

gator.” (State habeas corpus transcript., pp. 183-184). Mr.

Falligant further testified, “we really felt it was a very

defendable case, but we just, you know, obviously, ran into

a lot of dead ends, as you frequently do in these type of

cases.” (State habeas corpus transcript, p. 184).

Appellate/motion for new trial counsel Burch also

testified at the state habeas corpus hearing that he be-

lieved trial counsel’s investigation was reasonable, but he

also investigated every lead that came to him regardless of

whether it related to the guilt or innocence of the Peti-

tioner. (State habeas corpus transcript, pp. 237, 222-223).

The state habeas corpus court denied Petitioner relief

on September 9, 1997. In denying Petitioner relief, the

state habeas corpus court found the following:

from a review of the record that many pieces of

evidence supporting a finding that Coles was the

shooter or highlighting inconsistencies in the tes-

ti1,.ony of witnesses who identified Davis as the

shooter were indeed presented to the jury during

" The transcript of Petitioner’s state habeas corpus hearing was

Respondent’s Exhibit Nos. 59-62 in the federal habeas corpus court.

12

Davis’ trial. (cite omitted) The jury, in its rightful

role as finder of fact during the trial, was respon-

sible for evaluating the credibility of the wit-

nesses and determining whether the state proved

beyond a reasonable doubt that Davis shot and

killed Officer McPhail. This court, although

acting now as the finder of fact in this ha-

beas proceeding, cannot supplant the role

of the jury and find based on its own review of

the record that the jury should have concluded

that the state did not carry its burden at Davis’

trial. The core purpose of the writ of habeas cor-

pus would not be served by such a presumptuous

usurpation of the jury’s deliberative process. This

court is limited to evaluating whether Davis’

rights were properly protected in the context of

his jury trial.

(State habeas corpus order of September 5, 1997, p. 41)

(emphasis supplied).

The state habeas corpus court denied relief by finding

all of Petitioner’s claims “are procedurally barred by

having been raised and litigated at trial and on appeal or

by having been waived, with the exception of the claim

that his attorneys provided ineffective assistance at the

motion for new trial and appellate stages.” (Respondent’s

Exhibit No. 69 in the district court, p. 43).

Petitioner appealed to the Supreme Court of Georgia

from the denial of state habeas corpus relief. Petitioner

filed a notice of appeal on September 25, 1997 and an

application for a certificate of probable cause to appeal on

December 10, 1997.

13

(e) Appeal to the Georgia Supreme Court from the

Denial of State Habeas Corpus Relief (1997-2000)

On February 24, 2000, the Georgia Supreme Court

granted Petitioner’s application for certificate of probable

cause to appeal from the denial of state habeas corpus

relief and asked the parties to address four specific ques-

tions: (1) whether execution by electrocution constituted

cruel and unusual punishment under our Federal and

State Constitutions; (2) whether imposition of the death

penalty in this case was disproportionate to the penalty

imposed in other similar cases in Georgia; (3) whether

Petitioner’s appellate counsel operated under a conflict of

interest; and (4) whether Petitioner’s absence during

critical stages of his trial violated his rights under our

Federal and State Constitutions.

The Georgia Supreme Court affirmed the denial of

state habeas corpus relief on November 13, 2000, in Davis

v. Turpin, 273 Ga. 244 (2000), and denied Petitioner’s

motion for reconsideration on December 15, 2000. On May

14, 2001, Petitioner filed a petition for a writ of certiorari

in this Court which was denied on October 1, 2001.

(f) Federal Habeas Corpus Proceedings (2001-2004)

Petitioner filed his application for federal habeas

corpus relief in the U. S. District Court for the Southern

District of Georgia, Savannah Division, on December 14,

2001. Respondent’s answer was filed on February 11, 2002.

Petitioner's motion for discovery was denied on September

19, 2002.

Petitioner’s motion for an evidentiary hearing was

denied on March 10, 2003. The order denying Petitioner’s

motion for an evidentiary hearing contradicts Petitioner’s

14

assertion in his petition for certiorari that the federal

habeas court did not consider his post-trial affidavits. In

the order denying Petitioner’s motion for an evidentiary

hearing, the federal habeas corpus court extensively

reviewed each affidavit proffered during the state habeas

corpus proceedings and where applicable, compared the

affiant’s testimony to any testimony which was given

during Petitioner’s trial, as well as whether the affiant

had previously provided an affidavit. (Federal Habeas

Court Order of 3/10/03, denying evidentiary hearing, pp. 5-

22).

In reviewing Petitioner’s evidentiary hearing request,

the federal habeas court scrutinized these affidavits, both

to determine if they could have been submitted during

state habeas corpus proceedings (Federal Habeas Court

Order of 3/10/03, denying evidentiary hearing, p. 40) and

also, to determine if the presentation of these affidavits

would undermine the court’s confidence in the outcome of

the proceeding.” (Federal Habeas Court Order of 3/10/03,

denying evidentiary hearing, pp. 40-41).

The federal habeas court expressly stated that it

would consider all of the affidavits and material admitted

during state habeas corpus proceedings, but would not

permit Petitioner to re-offer these affidavits during -a

* As the federal habeas court noted, with the exception of attorney

testimony, all of the “actual innocence” testimony offered by Petitioner

during state habeas corpus proceedings, was in affidavit form. (Federal

Habeas Court Order of 3/10/03, denying evidentiary hearing, p. 39).

* In fact, the federal habeas corpus specifically examined each

affidavit offered by Petitioner. (Federal Habeas Court Order of 3/10/03,

denying evidentiary hearing, pp. 5-22).

15

federal evidentiary hearing. Federal Habeas Court Order

of 3/10/03, denying evidentiary hearing, p. 41).

Also contrary to Petitioner’s current contention, the

federal habeas court reviewed the trial testimony, includ-

ing Petitioner’s testimony, the evidence presented during

state habeas corpus proceedings and found that even after

Petitioner had been given a full opportunity to present any

evidence in support of his “actual innocence” claim he had

failed to establish that he was “factually innocent.” (Fed-

eral Habeas Court Order of 3/10/03, denying evidentiary

hearing, pp. 5-22; 37-41).

The federal habeas court examined the post-trial

affidavits relied upon by Petitioner, which he asserts have

never been “examined” and the federal habeas court held

that, “the Court finds that because the submitted affida-

vits are insufficient to raise doubts as to the constitution-

ality of the result at trial, there is no danger of a

miscarriage of justice in declining to consider the claim.”

(Federal Habeas Court Order of 5/13/04, denying relief, p.

25).

The federal habeas corpus court denied Petitioner

relief on May 13, 2004. Petitioner’s motion to amend the

judgment filed on May 13, 2004, was denied on June 3,

2004.

(g) Appeal to the Eleventh Circuit Court of Appeals

(2004-2006)

Although the district court denied Petitioner’s appli-

cation for a certificate of appealability on July 20, 2004,

the Eleventh Circuit granted Petitioner’s application on

September 15, 2004.

16

Following briefing and oral argument, the Eleventh

Circuit began its examination of Petitioner’s appeal from

the denial of federal habeas corpus relief by noting that,

“In this case, Davis does not make a substantive claim of

actual innocence.” Davis v. Terry, 465 F.3d 1249, 1251

(11th Cir. 2006).

The Eleventh Circuit proceeded to find that Petitioner

“concedes” that all of his claims for relief are procedurally

defaulted and that the federal habeas court actually

considered the “merits” of Petitioner’s constitutional

claims, but nevertheless, “rejected them as a matter of

law.” Davis v, Terry, 465 F.3d 1249, 1252 (11th Cir. 2006).

The Eleventh Circuit rejected the claim which is the

basis of this petition for certiorari, i.e., that the federal

habeas court used the wrong test in determining that it

would review the “merits” of Petitioner’s procedurally

defaulted claims. Davis v. Terry, 465 F.3d 1249, 1253 (11th

Cir. 2006).

The Eleventh Circuit concluded that Petitioner

“cannot be heard to complain that the test for achieving a

desired result was not applied, or not applied correctly,

when the desired result was, in fact, obtained.” Davis v.

Terry, 465 F.3d 1249, 1253 (11th Cir. 2006).

Then, having reviewed the federal habeas corpus

court’s rejection of Petitioner’s claims after reviewing

these claims on “the merits,” the Eleventh Circuit con-

cluded that, “we cannot say that the district court erred in

concluding that Davis has not borne his burden to estab-

lish a viable claim that his trial was constitutionally

17

unfair.” Davis v. Terry, 465 F.3d 1249, 1256 (llth Cir.

2006).

PART TWO

STATEMENT OF THE FACTS

At approximately 1:00 a.m. on Saturday, August 19,

1989, Officer David Owens, of the Savannah Police De-

partment, responded to a call of “an officer down” at the

Greyhound bus station on Oglethorpe Avenue. (T. 759)”.

Officer Owens found the victim, Mark McPhail, a 27-year-

old Savannah police officer, lying face down in the parking

lot of the Burger King restaurant next to the bus station.

(T. 759). Officer McPhail’s mouth was filled with blood and

bits of his teeth were on the sidewalk. As he began admin-

istering CPR to the victim, Officer Owens noticed that the

victim’s firearm was still snapped into his holster. (T. 761).

Larry Young, who was present at the scene, told police

that between midnight and 1:00 a.m. he had walked from the

Burger King parking lot, which was frequented by transients

and homeless individuals, to the convenience store down the

block to purchase beer. (T. 797-798). Sylvester “Red” Coles

saw Young leave the pool hall next door and began following

Young demanding a beer. (T. 798). Coles continued to harass

Mr. Young all the way back to the Burger King. (T. 799).

When Young arrived at the parking lot, Harriet Murray and

two unidentified men were sitting on a low wall by the

restaurant. Petitioner, Troy Anthony Davis, and Daryl

Collins, who had taken a shortcut to the parking lot, came

* References to the transcript of Petitioner’s trial will be desig-

nated by “T.,” followed by the appropriate page number.

18

out from behind the bank and surrounded Mr. Young. (T.

799). Mr. Coles, who was facing Mr. Young, told him not to

walk away “cause you don’t know me, I'll shoot you,” and

begin digging in his pants. (T. 845). The two men seated on

the wall fled, and Ms. Murray ran to the back door of the

Burger King, which was locked. (T. 799). Petitioner, who was

behind Young and to his right, blindsighted him, striking

him on the side of the face with a snub-nosed pistol, inflicting

a severe head injury which formed the basis of Count III of

the indictment. Mr. Young began to bleed profusely, and he

stumbled to a van parked in front of the Burger King drive-

in window, asking the occupants for help. (T. 803). When the

driver did not respond, Petitioner went to the drive-in

window, but the manager shut it in his face. (T. 803, 915).

In response to the disturbance in the parking lot,

Officer McPhail, who was working as a security guard at

the restaurant, walked rapidly from behind the bus

station, with his nightstick in his hand and ordered the

three men to halt. (T. 849). Mr. Collins and Petitioner fled,

and Officer McPhail ran past Sylvester Coles in pursuit of

Petitioner. (T. 851). Petitioner looked over his shoulder,

and when the officer was five to six feet away, shot him.

Officer McPhail fell to the ground, and Petitioner walked

towards him and shot him again while he was on the

ground. (T. 850). One eyewitness testified that Petitioner

was smiling at the time. (T. 851). The victim died of

gunshot wounds before help arrived.

Thirty minutes after the killing, Red Coles appeared

at his sister’s house a few blocks from the bus station. Mr.

Coles asked his sister for another shirt. (T. 915). Shortly

thereafter, Petitioner appeared and asked Mr. Coles for

the yellow t-shirt Coles had been wearing. After he

changed his shirt, Petitioner left. (T. 915). Petitioner fled

19

to Atlanta the following day and surrendered to authori-

ties on August 23, 1989.

Pursuant to their investigation, police learned that on

the night prior to the killing, Petitioner had attended a

party on Cloverdale Drive in a subdivision near Savannah.

(T. 1115-1116). During the party, Petitioner, annoyed that

some girls ignored him, told several of his friends some-

thing about “burning them.” (T. 146). Petitioner then

walked around saying, “I feel like doing something, any-

thing.” (T. 1464). When Michael Cooper and his friends

were leaving the party, Petitioner was standing out front.

(T. 1120). Michael Cooper was in the front passenger seat,

and as the car pulled away, several of the men in the car

leaned out the window shouting and throwing things. (T.

1120, 1186). Petitioner shot at the car from a couple of

hundred feet away and the bullet shattered the back

windshield and lodged in Michael Cooper’s right jaw. (T.

1186). Cooper was treated at the hospital and released and

Cooper’s injury formed the basis for Count IV of Appel-

lant’s indictment. The shooting incident took place ap-

proximately one hour before Officer McPhail was shot.

Shortly after Michael Cooper was shot, Eric Ellison

and D.D. Collins picked up Petitioner in Cloverdale and

took him to Brown’s pool hall in Savannah. Red Coles,

wearing a yellow t-shirt, was already at the pool hall.

An autopsy revealed that Officer McPhail was shot

twice. One bullet entered the corner of his cheekbone on

the left side and exited the back of his neck; the bullet

blew away bits of his teeth, and his lip was impaled on his

teeth. (T. 782-784). The second bullet passed through the

armhole of McPhail’s bu)'et-proof vest, and entered his chest

on the left side. (T. 784). This bullet pierced the lung and the

20

aorta, and lodged in the opposite side between the third and

fourth vertebrae, at the back of the chest cavity near the

spinal column. (T. 784-787). The cause of the victim’s death

was a loss of blood from-a gunshot wound to the left side of

his chest. (T. 789). The pathologist further noted that there

were scrapes and lacerations on the victim’s arms and legs,

and an apparent injury to his right thigh, which could have

been grazed by a bullet. (T. 788-789).

A ballistics expert testified that the bullet that

wounded Michael Cooper could have been fired from a .38

special revolver or a .357 magnum. (T. 1291). The bullet

from McPhail’s body was of the same type and was possi-

bly fired from the same weapon as used in the Cooper

shooting. (T. 1292). Four .38 special casings recovered at

Cloverdale where Michael Cooper was wounded, were

fired from the same gun as casings found at the scene of

Officer McPhail’s murder. (T. 1292).

At trial, Kevin McQueen, who was at the Chatham

City jail with Petitioner, testified that Petitioner told him

there had been a party in Cloverdale on the night prior to

the victim’s murder; Petitioner had argued with some boys

and there was an exchange of gunfire. (T. 1230-1231).

Petitioner told McQueen he did some of the shooting. (T.

1231). After the party, Petitioner went to a girlfriend’s

house and intended to eat breakfast at Burger King. Peti-

tioner stated that he was with a friend and they ran into a

guy who “owed money to buy dope.” (T. 1231). There was a

fight, Officer McPhail appeared, and Petitioner shot him in

the face. As Officer McPhail attempted to get up, Petitioner

shot him again, because he was afraid McPhail had seen him

that night at Cloverdale. (T. 1232). Petitioner also told

McQueen that he was on his way out of town to Atlanta.

(T. 1232).

21

Jeffrey Lapp testified that Petitioner told him he did

the shooting at Burger King, but that it was self-defense.

(T. 1249-1252). Mr. Lapp noted that Petitioner’s street

name was RAH, standing for “Rough As Hell.” (T. 1257).

Red Coles identified Petitioner as the perpetrator of

Officer McPhail’s murder, as did numerous other eyewit-

nesses, including Harriet Murray, Dorothy Ferrell, Daryl

Collins, Antoine Williams, Steven Sanders and Larry Young.

Petitioner testified at trial. Petitioner admitted that

he was present at the scene of the shooting on the night in

question, but denied that he was involved in the shooting

of Cooper or the victim or the assault on Larry Young.

PART THREE

REASONS FOR NOT GRANTING THE WRIT

I. THE FACT-SPECIFIC APPLICATION OF THIS

COURT'S DECISION IN SCHLUP V. DELO, 513

U.S. 298 (1995), WHICH RESULTED IN PETI-

TIONER’S SUBSTANTIVE CLAIMS FOR RE-

LIEF BEING REVIEWED BY THE FEDERAL

COURTS, PRESENTS NO ISSUE WARRANTING

THIS COURT’S EXERCISE OF ITS CERTIO-

RARI JURISDICTION.

A. Petitioner cannot complain that no court has

considered his “substantive actual inno-

cence” claim, when the Eleventh Circuit ex-

pressly stated that Petitioner “does not make

a substantive claim of actual innocence.”

Petitioner’s initial assertion in his “question presented”

that “no court has examined Petitioner Troy Davis’ compel-

ling new evidence to determine if he is innocent,” stands

in stark contrast to the Eleventh Circuit’s unequivocal

22

statement that, “In this case, Davis does not make a

substantive claim of actual innocence.” Davis v. Terry, 465

F.3d 1249, 1251 (11th Cir. 2006).

Therefore, assuming arguendo, that Petitioner is now

raising a substantive actual innocence claim, there is no

factual predicate for his assertion that the lower courts

refused to consider a substantive “actual innocence” claim

which Petitioner failed to raise in those proceedings.

This Court has stated in such cases as Kentucky v.

Stincer, 482 U.S. 730, 747 (1987), citing Heckler v. Camp-

bell, 461 U.S. 458, 468-469, n. 12 (1983), that it will not

consider grounds which were not presented to the court

below, except “in exceptional cases.” An examination of the

procedural history of Petitioner’s case clearly establishes

that Petitioner had every opportunity to allege a substan-

tive actual innocence claim, but chose instead to rely on an

assertion of “actual innocence” to attempt to excuse his

procedural default of various constitutional claims for

relief. Therefore, assuming, but in no way conceding, that

Petitioner is now raising a substantive “actual innocence”

claim, Petitioner has presented no “exceptional” circum-

stances which would authorize this Court to review a

substantive “actual innocence” claim when such a claim

was not presented to the federal habeas corpus court, or to

the Eleventh Circuit Court of Appeals.

This Court should decline to grant certiorari as to any

substantive “actual innocence” claim being raised for the

first time in the instant petition for a writ of certiorari.

23

B. The federal courts applied this Court’s de-

cision in Schlup v. Delo, 513 U.S. 298 (1995),

in a manner benefiting Petitioner and their

fact-specific application of Schlup presents

no issue warranting review by this Court.

Petitioner claims that the federal habeas corpus court,

“skipped” the innocence gateway inquiry of Schlup v. Delo,

513 U.S. 298 (1995), allegedly to “avoid its role as fact

finder” in what Petitioner asserts is a “substantial inno-

cence” case. However, as just noted, Petitioner did not

raise a substantive innocence claim in the lower courts,

but rather attempted to excuse his procedural default of

his constitutional claims by making the required “inno-

cence” showing.

In affirming the denial of federal habeas corpus relie*

to Petitioner, the Eleventh Circuit noted that Petitioner

contended “that his constitutional claims of an unfair trial

must be considered, even though they are otherwise

procedurally defaulted, because he has made the requisite

showing of actual innocence under Schlup.” Davis v. Terry,

465 F.3d 1249, 1252 (11th Cir. 2006)." See also, order of

the federal habeas corpus court of 5/13/04, p. 65 (finding

that “the state habeas court’s reading of this claim as an

argument made to support application of the miscarriage

of justice exception was a fair assessment of Petitioner’s

position”.)

" Schlup, like Petitioner, raised an “actual innocence” claim, in an

attempt to obtain review of an ineffective assistance claim and a Brady

claim. Schlup v. Delo, 513 U.S. 298, 315 (1995). Both Schlup and

Petitioner, attempted to meet the miscarriage of justice standard by

establishing “actual innocence,” as they were unable to establish the

requisite cause and prejudice.

24

In the decision of the federal habeas corpus court

reviewed on appeal by the Eleventh Circuit, the habeas

court clearly relied on this Court’s decision in Schlup in

reviewing Petitioner’s “actual innocence” claim. The

federal habeas corpus court applied Schlup by concluding

as follows:

As explained above, a federal court looks, under

the miscarriage of justice exception, to colorable

claims of actual innocence for “permission” to ad-

dress questions of constitutional impropriety as-

serted in procedurally defaulted claims. See

Schlup, 513 U.S. at 315-16; see also Brown, 229

F. Supp. 2d at 1362. If a federal court is satisfied

that no constitutional error occurred, however,

the “actual innocence” gateway need not be im-

plemented. See Schlup, 513 U.S. at 316. Ulti-

mately, the state habeas court’s analysis serves

as assurance that no constitutional deficiencies

exist in this case so as to merit habeas corpus re-

lief.

(Federal Habeas Court Order of 5/13/04, denying relief,

p. 65).

Contrary to Petitioner’s contention, it is apparent

from the specific language of the federal habeas corpus

court’s opinion, that the federal habeas corpus court

clearly acknowledged the gateway provision of Schlup uv.

Delo. However, having made that acknowledgement of

Schlup’s gateway function, the federal habeas court chose

to rely on the provision of Schlup which expressly permits

bypassing the gateway provision, if the reviewing court is

“satisfied that no constitutional error occurred.” See

Schlup v. Delo, 513 U.S. at 316.

25

As properly found by the Eleventh Circuit, Petitioner

did not identify a fatal flaw in the federal habeas court’s

Schlup analysis. In fact, an examination of the federal

habeas court’s opinion demonstrates that the federal

habeas court went further than Schlup requires in analyz-

ing Petitioner’s claims, in light of Petitioner’s failure to

make a colorable showing of innocence. The federal habeas

court simply assumed that the requisite colorable showing

of innocence had been made and reviewed the “merits” of

the constitutional claims raised by Petitioner, even though

the state habeas corpus court had found the claims to be

procedurally defaulted.”

The Eleventh Circuit also properly applied Schlup in

rejecting Petitioner’s claim that the federal habeas corpus

court had “erred in declining to consider evidence of his

actual innocence and-instead, reached the merits of his

constitutional claims.” Davis v. Terry, 465 F.3d 1249, 1253

(11th Cir. 2006). - -

The Eleventh Circuit found that it was essentially

irrelevant whether the federal habeas court had improp-

erly declined to utilize Schlup’s gateway provision to

obtain review of his constitutional claims, as the federal

habeas court had proceeded to conduct a “merits” review of

Petitioner’s procedurally defaulted constitutional claims.

The Eleventh Circuit properly found the following:

” The state habeas corpus court denied relief by finding all of

Petitioner’s claims “are procedurally barred by having been raised and

litigated at trial and on appeal or by having been waived, with the

exception of the claim that his attorneys provided ineffective assistance

at the motion for new trial and appellate stages.” (State habeas corpus

court denying relief, p. 43).

26

As noted above, the procedural claim of actual

innocente under Schlup is permitted in order to

assure consideration of constitutional claims of

an unfair trial where those r’aims have been pro-

cedurally defaulted. Davis received precisely

such substantive consideration. He cannot be

heard to complain that the test for achieving a

desired result was not applied, or not applied cor-

rectly, when the desired result was, in fact, ob-

tained.

Davis v. Terry, 465 F.3d 1249, 1253 (11th Cir. 2006) (em-

phasis supplied).

Petitioner obtained the desired “merits” review of his

claims, and has no basis for criticizing the manner in

which the federal habeas court determined that such a

substantive review of the claims would be made. Thus,

there is no case or controversy to be resolved by this Court,

as the Eleventh Circuit properly found that the federal

habeas corpus court reviewed Petitioner’s “actual inno-

cence” claims pursuant to Schlup and Petitioner received

the substantive review of his procedurally defaulted

claims which he sought to obtain by alleging “actual

innocence.”

The lack of the availability of further relief to this

Petitioner is demonstrated by the fact that if a reviewing

court should find that the gateway provision of Schlup was

not properly utilized by the federal habeas corpus court in

Petitioner’s case, the only relief which Petitioner could

obtain would be to receive a review of his constitutional

claims on their merits, which is exactly the same review

which was conducted by the federal habeas corpus court.

Additionally, Petitioner’s allegation that “no court has

examined Petitioner Troy Davis’ compelling new evidence

27

to determine if he is innocent,” is belied by the clear

language of various orders of the federal habeas court. In

an order denying Petitioner’s motion for an evidentiary

hearing, the federal habeas corpus court extensively

reviewed each affidavit proffered during the state habeas

corpus proceedings and where applicable, compared the

affiant’s testimony to any testimony which was given

during Petitioner’s trial, as well as whether the affiant

had previously provided an affidavit. (Federal Habeas

Court Order of 3/10/03, denying evidentiary hearing, pp. 5-

22)."

The federal habeas court examined the post-trial

affidavits relied upon by Petitioner, which he asserts have

never been “examined” and held the following: “the Court

finds that because the submitted affidavits are insufficient

to raise doubts as to the constitutionality of the result at

trial, there is no danger of a miscarriage of justice in

declining to consider the claim.” (Federal Habeas Court

Order of 5/13/04, denying relief, p. 25).

C. This case does not constitute the proper vehi-

cle to revisit Schlup’s “gateway” provisions.

Assuming that this Court decides to revisit Schlup,

this case does not represent the proper vehicle for review-

ing Schlup’s gateway provision, as the gateway provision

was not utilized by the federal courts to authorize a

substantive review of Petitioner’s procedurally defaulted

* As the federal habeas court noted, with the exception of attorney

testimony, all of the “actual innocence” testimony offered by Petitioner

during state habeas corpus proceedings was in affidavit form. (Federal

Habeas Court Order of 3/10/03, denying evidentiary hearing, p. 39).

28

claims. As already noted, this Court in Schlup, specifically

authorized bypassing the gateway provision if the reviewing

court found that, “If a federal court is satisfied that no

constitutional error occurred, however, the “actual inno-

cence” gateway need not be implemented.” Schlup, 513 U.S.

at 316.

Petitioner’s case constitutes a fact-specific application

of Schlup, where Petitioner is not alleging a substantive

“actual innocence” claim, but is merely asserting innocence

as a means to obtain a substantive review of other claims.

Schlup’s provisions were properly applied by the federal

habeas corpus court in light of Petitioner’s allegations and

post-trial affidavits.“

The fact that Schlup’s gateway provisions might be

applied differently in future cases in which a petitioner

may be alleging substantive actual innocence claims, is

mere speculation and does not bear on the instant case

before the Court nor warrant this Court’s exercise of its

certiorari jurisdiction.” See Rice v. Sioux City Cemetery,

349 U.S. 70, 74 (1955) (“The legal problem must be “be-

yond the academic or the episodic.”)

¢

“ Insofar as Petitioner’s petition for certiorari represents Peti-

tioner’s disagreement with the “2/eral habeas court’s review of his post-

tria] affidavits as not presenting “compelling evidence” of his innocence,

this disagreement fails to warrant this Court’s certiorari review. This

Court has repeatedly stated that, “We do not grant a certiorari to

review evidence and discuss specific facts.” United States v. Johnson,

268 U.S. 220, 227 (1925) and Texas v. Mead, 465 U.S. 1041 (1984).

* See Nike, Inc. v. Kasky, 539 U.S. 654, 663 (2003) (“the Court will

not anticipate a question of constitutional law in advance of the

necessity of deciding it. (citations omitted).”)

=

29

CONCLUSION

WHEREFORE, for all the above and foregoing rea-

sons, Respondent prays that this Court decline to exercise

its certiorari jurisdiction and deny the instant petition for

a writ of certiorari.

Respectfully submitted,

THURBERT BAKER 033887

Attorney General

MARY BETH WESTMORELAND 750150

Deputy Attorney General

SUSAN V. BOLEYN 065850

Senior Assistant Attorney General

Counsel of Record

Please serve:

SusAN V. BOLEYN

Senior Assistant Attorney General

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 656-3397