Opinion
CV-20-00517-TUC-RCC (DTF)
09-06-2022
Jeffery Scott Davis, Petitioner, v. David C. Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge
Petitioner Jeffery Scott Davis (Davis or Petitioner) presently incarcerated in Arizona State Prison Complex-Kingman Huachuca Unit in Kingman, Arizona, filed a Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and a lengthy memorandum with exhibits. (Docs. 1, 8.) Before the Court are the Petition, the Memorandum, Respondents' Answer to the Petition, and Petitioner's Reply. (Docs. 1, 8, 15, 18.) This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 4 at 4.)
As more fully set forth below, this Court recommends the Petition be denied and this matter be dismissed.
I. BACKGROUND
a. Factual Background and Investigation
On August 4, 2009, Amie Davis, Davis's then-wife, contacted Greenlee County Sheriff's Office to report that her daughter, Davis's adopted daughter D.D., reported sexual contact with Davis. (Docs. 8-3 at 2.) D.D. was seventeen years old and was about to turn eighteen. Id. at 7. Amie told investigators that D.D. had previously gone to court because her biological father had molested her when she was five years old. Id. at 3. After a hung jury, the biological father signed a plea agreement and terminated his parental rights. Id.
Davis states he adopted D.D., but for the sake of clarity, the Court will refer to her as D.D. or his adopted daughter. There are portions of the record referring to Davis as D.D.'s stepfather.
Investigators interrogated Davis on August 4, 2009. (Doc. 8-15 at 2.) Davis admitted to touching D.D. from the time she was seven years old until seven to eight days before the interrogation. Id. at 2-4. He admitted to touching her vagina with his hand and penis, touching her breasts, performing oral sex on her, and having her perform oral sex on him. Id. at 3-4, 6. He also recounted sending D.D. a text, which stated that she had nothing to be ashamed of and that it was all Davis's fault. Id. at 6.
On August 18, 2009, investigators questioned D.D. (Doc. 8-18 at 2.) D.D. stated Davis had started touching her when she was six or seven years old. Id. at 6. She described several discrete events, such as when they were camping, once after the camping trip, and once in Globe Id. at 7-8, 14-15, 17, 19.
On November 25, 2009, D.D. participated in a forensic interview. (Doc. 8-19 at 2.) D.D. described sexual abuse committed by Davis, including when she was in the fourth grade. Id. 25-27. She stated that this was before dance class. Id. at 26 She specified that during this occasion, Davis "stuck his finger inside [her] vagina." Id. at 27:2. D.D. also recalled an incident from the eighth grade in which Davis put his hand in her underwear and "rub[bed her] vagina." Id. at 31:17-20. She recounted other incidents.
Eventually, the state provided Davis's attorney with a handwritten journal, allegedly written by D.D. (Doc. 8-21.) It included several alleged incidents of sexual interaction between D.D. and Davis. Id.
b. Criminal Proceeding
On April 29, 2010, the state charged Davis in an eight-count information. (Doc. 15-1 at 72-73.) The counts alleged Davis had molested, engaged in sexual conduct with, attempted to sexually assault, and sexually assaulted D.D. ranging from August 1, 2002, to August 4, 2009. Id.
On December 30, 2010, Davis pled no contest to sexual conduct with a minor between August 1, 2002, and May 31, 2003 (Count 1) and attempted molestation of a child between August 1,2006, and May 31,2007 (Count 2), in accordance with a plea agreement. Id. at 4-6, 11-12. Counts 3-8 of the information were dismissed. Id. The state provided a basis in fact, which included Davis's statement and D.D.'s forensic interview. Id. at 14-66. The state pointed the trial court to portions of the forensic interview in which D.D. stated that Davis put his hand down her pants and underwear during the fourth grade (August 2002 to May 2003) and that Davis came into her bedroom and put his hand down her pants and underwear in the eighth grade (August 2006 to May 2007). Id. at 14.
On February 11,2011, the trial court sentenced Davis to twenty years' imprisonment for Count 1 and placed Davis on lifetime probation for Count 2. Id. at 68-69.
c. Post-Conviction Relief Proceedings
On September 10, 2012, Davis filed a notice of post-conviction relief. Id. at 76. Then he filed a motion for delayed post-conviction relief. Id. at 80. He contended that his attorney was supposed to file a notice of post-conviction relief but had failed to do so. Id. at 82-84. The trial court stated, "It appears to the Court that Mr. Davis' testimony lacks credibility and he has not met his burden" Id. at 159. Thus, it denied the motion for delayed post-conviction relief. Id. The Arizona Court of Appeals granted review but denied relief. State v. Davis (Davis I), No. 2 CA-CR 2013-0131-PR, 2013 WL 3961199, ¶ 8 (Ariz.Ct.App. Jul. 31, 2013) The Arizona Supreme Court denied review. (Doc. 15-4 at 117.)
In 2019, the Arizona Supreme Court amended the post-conviction rules, effective January 1, 2020. See Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). The supreme court added Rule 33 which codified rules related to defendants who plead guilty or no contest. Id. The Court will use the amended rules when it cites to the current rules.
Davis filed several other motions and appeals over the years. See State v. Davis (Davis V), No. 2 CA-CR 2019-0239-PR, 2020 WL 1490882, ¶¶ 2-3 (Ariz.Ct.App. Mar. 27, 2020) (providing procedural history of other appeals). In 2014, Davis filed motions to compel evidence and for rehearing. (Doc. 15-1 at 178, 181, 213.) The trial court denied the motions. Id. at 195, 220. Davis petitioned for review and the Arizona Court of Appeals dismissed the petition for lack of jurisdiction. State v. Davis (Davis II), 2 CA-CR 2014-0336-PR, 2014 WL 7372973, ¶¶ 1, 6, 9 (Ariz.Ct.App. Dec. 29, 2014). In 2016, the Arizona Supreme Court denied review. (Doc. 15-2 at 48.)
In December 2014, Davis filed a motion for clarification with the trial court, arguing the court that issued the warrant for his arrest had lacked jurisdiction. Id. at 54. The trial court denied the motion. Id. at 56. Davis requested review from the Arizona Court of Appeals. Id. at 58. The appellate court denied review because "Davis's claim is patently untimely . . . ." State v. Davis (Davis III), 2 CA-CR 2015-0027-PR, 2015 WL 5120090, ¶¶ 5, 7 (Ariz.Ct.App. Aug. 31, 2015). Davis petitioned the Arizona Supreme Court for review. (Doc. 15-4 at 119.) The supreme court denied the petition. (Doc. 15-2 at 48.)
In 2016, Davis moved to withdraw his plea of no contest and to vacate the judgment. Id. at 89. The trial court denied the motion, and Davis filed a motion for relief from the judgment. Id. at 134; (Doc. 15-3 at 3). The court considered the motion as a motion for reconsideration and denied it. (Doc. 15-3 at 60.) Davis petitioned for review from the Arizona Court of Appeals. Id. at 63. The appellate court denied relief and noted that the claims were "barred as untimely." State v. Davis (DavisIV), 2 CA-CR 2017-0213-PR, 2017 WL 6729951, ¶¶ 5-6 (Ariz.Ct.App. Dec. 29, 2017). Davis petitioned to the Arizona Supreme Court, which denied review. (Doc. 15-3 at 112; Doc. 15-4 at 132.)
In 2019, Davis filed his latest petition for post-conviction relief in the state court. (Doc. 15-4 at 3.) In this petition, Davis argued he was actually innocent and presented much of the same information before this Court. (Compare Doc. 8 at 9-63 with Doc. 15-4 at 4-55.) The trial court denied and dismissed the petition. (Doc. 15-4 at 73.) Davis petitioned to the appellate court. Id. at 75. The appellate court provided a procedural history of the case, including the previous appeals. Davis V, 2020 WL 1490882, ¶¶ 2-3. The appellate court concluded Davis failed to explain why he had failed to raise his claims in his previous petitions or within a reasonable time. Id. ¶ 8. Further, the appellate court approved of the trial court considering portions of the record establishing Davis's guilt. Id. ¶ 10. Davis petitioned to the Arizona Supreme Court, which denied review. (Doc. 15-4 at 109.)
On November 23, 202, Davis filed the Petition for Writ of Habeas Corpus before this Court. (Doc. 1.)
II. TIMELINESS
a. Standard
Whether a petition is time-barred by the statute of limitations is a threshold issue that must be resolved before considering other procedural issues or the merits of the individual's claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Anti-Terrorism and Effective Death Penalty Act's (AEDPA) one-year statute of limitations applies here. See 28 U.S.C. § 2244(d)(1); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). The limitations period begins to run on the date when “the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation.” § 2244(d)(2).
Here, Petitioner's sentence became final on May 12, 2011. See Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) (holding that AEDPA's statute of limitations for defendants who plead guilty in Arizona does not begin to run until the conclusion of Rule 32 or until time to seek Rule 32 review expires); Ariz. R. Crim. P. 32.4(a) (2011) (stating notice must be filed ninety days after the entry of judgment). Petitioner's state PCRs were untimely or lacked jurisdiction and do not act to statutorily toll the AEDPA deadline. See Davis 1, 2013 WL 3961199, ¶ 8 (untimely); Davis II, 2014 WL 7372973, ¶¶ 1, 6, 9 (lacked jurisdiction); Davis III, 2015 WL 5120090, ¶ 5 (untimely); Davis IV, 2017 WL 6729951, ¶¶ 5-6 (untimely); Davis V, 2020 WL 1490882 ¶¶ 9 (untimely and precluded). Further, Petitioner does not argue that the time should be equitably tolled. (See Doc. 1 at 13-14.) Thus, the statute of limitations expired on May 13, 2012, long before Petitioner filed this action. (Doc. 1.)
Equitable tolling requires petitioners to show they pursued their rights diligently and that "some extraordinary circumstance" was in their way. Holland v. Florida, 560 U.S. 631, 649 (2010 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner has not alleged some extraordinary circumstances.
Petitioner relies on actual innocence to overcome his petition's untimeliness. The Petition is untimely unless Petitioner can meet the burden for actual innocence.
b. Actual Innocence
Actual innocence can provide a gateway to federal habeas relief through a procedural bar or the AEDPA's statute of limitations. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (holding actual innocence "serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or, as in this case, expiration of the statute of limitations."); Schlup v. Delo, 513 U.S. 298, 315 (1995) (actual innocence as a gateway for barred constitutional claims). Petitioners must show it is more likely than not that, "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." McQuiggin, 569 U.S. at 386, 399 (quoting Schlup, 513 U.S. at 327, 329). This is a "demanding" standard, only available in the "extraordinary" case. House v. Bell, 547 U.S. 518, 538 (2006).
Courts should consider "'all the evidence,' old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under 'rules of admissibility that would govern at trial.'" House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 327-28). This is true when there was no trial, and if the prosecution forwent more serious charges, petitioners must show actual innocence extending to them as well. Bousley v. United States, 523 U.S. 614, 624 (1998). If evidence is "merely cumulative or speculative" or is "insufficient to overcome otherwise convincing proof of guilt," the actual-innocence gateway will be unavailable. Larson v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013). However, petitioners are not required to provide affirmative proof of innocence. Id.
While petitioners need not show diligence, the timing of the petition is a factor in the reliability of the evidence. McQuiggin, 569 U.S. at 387. Petitioner attempts to explain his delay in filing the present Petition by stating he did not have the factual predicate prior to his 2016 motion. (Doc. 18 at 12.) Courts shall consider a potential witnesses' connection with the petitioner. See Jones v. Taylor, 763 F.3d 1242, 1249 (9th Cir. 2014) (reducing statements' weight and reliability because they were from petitioner's family).
Petitioner summarizes the new evidence as 1) his affidavit, 2) his mother's affidavit, 3) his sister's letter to his trial attorney, 4) his ex-wife's Facebook post celebrating being free from Petitioner, 5) a comparison between his ex-wife's handwriting and the handwriting in the journal purportedly from the victim, 6) trial records from the victim's biological father, 7) the victim's dance teacher's LinkedIn page, and 8) several tables "demonstrating, inter alia, lies and contradictions that occurred in the State's investigation." (Doc. 18 at 9.) He states this is not a comprehensive list. Id. The Court has read his 171-page affidavit and all the attachments. He argues D.D. was acting inappropriately with him, in what he refers to as "garbage." (Doc. 8 at 11-12.) He continues that his confession is false, that Amie conspired against him, and that D.D.'s statement was fabricated and tainted by improper interview technique. Id. at 18-23.
Assuming Petitioner's evidence is considered new evidence, he still fails to show it is more likely than not that no reasonable juror would have voted to convict him. The Court will consider his arguments in the following categories: attempts to undermine his statement, attempts to undermine D.D.'s statement, and attempts to undermine D.D.'s journal.
i. Davis's Statement
Davis argues his confession should be discarded for several reasons. He states he was sleep deprived, investigators "strongly insisted that [he] accompany them," thereby coercing his statement, and he was misled because investigators told him they would not "judge" him. (Doc. 8 at 18-19.) He provides an affidavit from his mother Sandra Davis dated January 21, 2019. (Doc. 8-33.) Mrs. Davis avows Davis had a good relationship with his children and that at least one of the alleged incidents that are not a basis of his convictions could not have happened because she was in their home with D.D. Id. at 2-3. She also states that, after Davis was released from jail on August 10, 2009, he disclosed he had been the victim of some abuse as a child and had "lied his ass off to the investigators." Id. at 4.
Davis has not provided reliable evidence sufficient to suggest that no juror would have considered his confession to be credible. First, many of the claims are untimely and were raised years after his conviction. See McQuiggin, 569 U.S. at 387 (considering timing). He previously claimed his statements to investigators were untruthful and involuntary, but he did not expound on the issue. (Doc. 15-1 at 147 (trial attorney explaining Davis's strategy would be to tell jury he lied), Doc. 15-2 at 106-12 (stating statements were involuntary then explaining how D.D.'s statements were false without explanation as to his statements), Doc. 15-3 at 69 (describing himself as sleep deprived before the "involuntary, incriminating statements").) He mentioned being sleep deprived for the first time in 2017. (Doc. 15-3 at 69.) Then in 2019, he first raised the claim that his statements were a retelling of the abuse he suffered as a twelve-year-old. (Doc. 15-4 at 14.) On February 22, 2019, his mother signed an affidavit retelling a conversation from 2009. (Doc. 8-33 at 2, 6.) She had previously filed an affidavit in support of her son, but it only considered the timeliness of his post-conviction relief. (Doc. 15-2 at 40.) Finally, Davis did not allege D.D. was the sexual aggressor until 2019. (Doc. 15-4 at 6-9.)
Second, Davis is not a reliable witness in this matter. He is clearly biased. Additionally, parts of his affidavit contradict his previous testimony. (Compare Doc. 8-2 at 148 (stating trial court "did not advise [him] of any of [his] conditional rights (e.g. privilege against compulsory self-incrimination, etc.)") with Doc. 15-1 at 112-13 (Davis confirming trial court had told him "about all the rights [he]'d be giving up by going into this change of plea" including the right to remain silent, right to an attorney, and right to confront the witnesses).) This is before the Court considers that the trial court stated Davis "lack[ed] credibility." (Doc. 15-1 at 159.)
Davis has not undercut the credibility of his confession with reliable evidence.
ii. D.D's Statements
Davis argues D.D.'s statements should be disregard because the investigator tainted the August 18, 2009 Interview, the November 25, 2009 Interview was forced, contained contradictions, and she stated that it was "just a dream and not true." (Doc. 8 at 19-23.)
Davis argues that the investigators used leading questions in the August 18, 2009 Interview, such that D.D. just agreed. (Doc. 8 at 20-21.) This is inaccurate. The investigators did use leading questions but D.D. did not just agree. (Doc. 8-18 at 4:25-26, 5, 6:7, 8:8-14, 12:10-15, 29:11-21.) Additionally, she even corrected herself regarding the dates of the camping trip. Id. at 9. Davis contends the investigators improperly provided the context of the interview and the investigators pushed D.D. to remember. (Doc. 8 at 20.) The investigator told D.D. "okay, that's fine" when D.D. stated she did not remember. (Doc. 8-18 at 4.) D.D. initiated many different allegations. Id. at 5:15, 10:12-14, 11:4, 17:10-16. She stated she did not notice pornography in the home. Id. at 12. Overall, Davis has not provided new reliable evidence to undermine this interview.
Davis argues the November 25, 2009 Interview exonerates him because D.D. states the factual basis in Count One occurred before dance. (Doc. 8 at 33.) It is unclear from the interview if the event described occurred before dance. (Doc. 8-19 at 25:16-27:6.) Thus, this is not availing. D.D. describes some conversations between Davis and herself from "before dance," and D.D. placed these conversations during the first or second grade. Id. at 27:28-28:24. Davis makes much over this dance discrepancy. (Doc. 8 at 33.) Davis also contends that the 9:30 p.m. incident could not have occurred because D.D. had a consistent 8:00 p.m. bedtime and was not allowed to watch scary movies. Id. He points to his affidavit and his mother's affidavit. Id. (citing Doc. 8-2 at 56-57; Doc. 8-33 at 4.) As discussed above, neither affidavit is particularly reliable.
Moreover, the Court is not swayed by D.D.'s statement that "I don't know if everything is a dream, I don't know if it's true . . . ." It is likely that a reasonable juror could interpret the statement as a person grappling with what is happening, not an admission that these statements are fabricated.
Davis has not presented new reliable evidence such that it is likely every reasonable juror would vote to reject D.D.'s accusation and acquit Davis.
iii. D.D.'s Journal
Davis presents the journal as a forgery-thus is inculpatory. (Doc. 8-39.) He insists Amie is the true author. Id. First, assuming this document was a forgery, Davis still has not satisfied his burden because he has not show that it is likely that no juror would have voted to convict him based on the previously discussed evidence. Second, Davis presents similarities between Amie's handwriting and the journal; however, notably missing is any indication of dissimilarity between D.D.'s handwriting and the handwriting contained in the journal. While Davis insists D.D.'s handwriting is different (Doc 8-2 at 140), he is not a credible source for this information based on the reasons listed above.
Therefore, the Court does not conclude that this meets the actual-innocence standard.
iv. Conclusion
Davis has not satisfied the demanding standard of actual innocence. He has not shown that this is an extraordinary case where timeliness should be bypassed. Davis has failed to provide new reliable evidence that would make it more likely than not that no reasonable juror would have voted to find him guilty beyond a reasonable doubt.
Therefore, the District Court should dismiss this action as untimely. If the District Court find that Petitioner has shown he is actually innocent, then it should remand this matter for considerations of substantive claims.
III. RECOMMENDATION
Petitioner's claims are untimely, and he has not shown that he is actually innocent. Accordingly, it is recommended that the district court, after its independent review, deny and dismiss the Petition.
Pursuant to 28 U.S.C. § 636(b)(1) and 72(b)(2), Fed. R. Civ. P., any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: 4:20-cv-00517-TUC-RCC.