Troy Anthony Davis v. William Terry ( 2010 )


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  •                                                                             [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    FILED
    U.S. COURT OF APPEALS
    ________________                ELEVENTH CIRCUIT
    NOV 5, 2010
    No. 10-14534                       JOHN LEY
    CLERK
    ________________
    TROY ANTHONY DAVIS,
    Petitioner-Appellant,
    versus
    WILLIAM TERRY,
    Respondent-Appellee.
    ______________________
    Appeal from the United States District Court for the
    Southern District of Georgia
    _______________________
    BEFORE: DUBINA, Chief Judge, BARKETT and MARCUS, Circuit Judges.
    BY THE COURT:
    Petitioner, Troy Anthony Davis, filed a certificate of appealability (“COA),
    with this court following the district court’s denial of his request for a COA.
    Pursuant to 
    28 U.S.C. § 2253
    (c), a habeas petitioner may not appeal from a district
    court’s adverse ruling unless a circuit justice or judge issues a COA. A court will
    issue a COA “only if the applicant has made a substantial showing of the denial of
    a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2); see also Slack v. McDaniel, 
    529 U.S. 473
    , 483–84, 
    120 S. Ct. 1595
    , 1603–04 (2000). To satisfy this standard, a
    petitioner must show that it is debatable among reasonable jurists that the district
    court’s assessment of the claim was wrong. Slack, 
    529 U.S. at 484
    , 
    120 S. Ct. at 1604
    .
    Because of the unusual procedural posture of this case, we set forth the
    procedural history of this case in detail. In 1991, a Georgia jury convicted Davis
    of murder, obstruction of a law enforcement officer, two counts of aggravated
    assault and possession of a firearm during the commission of a felony. The trial
    court sentenced Davis to death for the murder conviction. The Supreme Court of
    Georgia affirmed Davis’s convictions and death sentence. Davis v. State, 
    426 S.E.2d 844
     (Ga. 1993). The United States Supreme Court denied Davis’s petition
    for writ of certiorari. Davis v. Georgia, 
    510 U.S. 950
    , 
    114 S. Ct. 396
     (1993).
    Subsequently, in 1994, Davis filed a petition for writ of habeas corpus in Georgia
    Superior Court, which the court denied. The Georgia Supreme Court affirmed the
    denial of Davis’s habeas petition, Davis v. Turpin, 
    539 S.E.2d 129
     (Ga. 2000), and
    2
    the United States Supreme Court denied his petition for writ of certiorari, Davis v.
    Turpin, 
    534 U.S. 842
    , 
    122 S. Ct. 100
     (2001).
    In 2001, Davis filed a petition for writ of habeas corpus pursuant to 
    28 U.S.C. § 2254
     in federal district court. The district court denied his petition for
    relief, and this court affirmed. Davis v. Terry, 
    465 F.3d 1249
     (11th Cir. 2006),
    cert. denied, 
    551 U.S. 1145
     (2007). In 2008, Davis filed an application with this
    court for leave to file a second or successive habeas corpus petition, and this court
    denied his application. In re Davis, 
    565 F.3d 810
     (11th Cir. 2009). In that
    opinion, we specifically noted that Davis could “petition the United States
    Supreme Court to hear his claim under its original jurisdiction.” 
    Id. at 826
    .
    Davis followed our suggestion and filed an original habeas corpus petition
    in the United States Supreme Court, citing 
    28 U.S.C. §§ 2241
    , 2254(a), 1651(a),
    and Article III of the U.S. Constitution, as providing the basis for the Supreme
    Court’s jurisdiction. Upon consideration, the Supreme Court ordered that:
    The petition for a writ of habeas corpus is transferred to the United
    States District Court for the Southern District of Georgia for hearing
    and determination. The District Court should receive testimony and
    make findings of fact as to whether evidence that could not have been
    obtained at the time of trial clearly establishes petitioner’s innocence.
    In re Davis, ___ U.S. ___, 
    130 S. Ct. 1
    , 1 (2009).
    3
    Upon receipt of the order from the United States Supreme Court, the district
    court conducted an evidentiary hearing to determine whether Davis could establish
    his innocence of the murder conviction. In its order of August 24, 2010, the
    district court denied Davis relief, concluding that Davis failed to show actual
    innocence of his murder conviction. In re Davis, No. CV409 – 130, 
    2010 WL 3385081
    , *1, 61 (S. D. Ga. Aug. 24, 2010). The district court, in a footnote,
    questioned the jurisdictional effects, particularly with respect to appeal, of the
    Supreme Court’s transfer and suggested that appeal of its order would be directly
    to the Supreme Court. 
    Id.
     at *1 n.1. Davis, also uncertain about his avenue of
    appeal, filed an appeal with this court from the district court’s finding because he
    concluded that a direct appeal to the United States Supreme Court was not
    explicitly authorized by Supreme Court Rule, federal statute, or Supreme Court
    precedent. However, in an abundance of caution, Davis also filed a direct appeal
    to the United States Supreme Court. As of this date, the Supreme Court, nor this
    court, have ruled on Davis’s respective appeals.
    Now Davis has filed a request for COA in this court. In its denial of
    Davis’s request for a COA, the district court expressed its doubt that this court had
    jurisdiction to hear an appeal from its finding that Davis did not establish his
    innocence of the murder conviction. In re Troy Anthony Davis, No. CV409 – 130
    4
    (S. D. Ga. Oct. 8, 2010). The district court emphasized that the Supreme Court
    exercised its original jurisdiction when it transferred the case to the district court.
    The district court reasoned that it was clear that the Supreme Court was exercising
    its original jurisdiction because if it were operating within the confines of its
    appellate jurisdiction, “it would have been unable to entertain the petition because
    [Davis] had not obtained leave to file a second or successive petition.” Dist. Court
    Order at 2, citing Felker v. Turpin, 
    518 U.S. 651
    , 661, 
    116 S. Ct. 2333
    , 2338–39
    (1996).
    We agree with the district court’s reasoning. Davis could only bring his
    claim under the Supreme Court’s original jurisdiction because he had exhausted
    his other avenues of relief. The district court denied his first federal habeas
    petition, this court affirmed on appeal, and the Supreme Court denied review.
    Davis was prohibited from filing a second or successive habeas petition absent an
    order from this court authorizing such a filing. 
    28 U.S.C. § 2244
    (b). We denied
    his request for leave to file a successive petition, and there was no further review
    authorized by law. 
    28 U.S.C. § 2244
    (b)(3)(E). Therefore, Davis filed a habeas
    petition pursuant to the Supreme Court’s original jurisdiction. If this court
    granted Davis’s request for a COA and reviewed the district court’s order at this
    juncture, as Davis requests, we would effectively be restoring his remedies in
    5
    federal court, in complete contradiction to the express intent of Congress. In
    effect, we would be nullifying our previous decision denying Davis leave to file a
    successive habeas petition. We decline to do that.
    Accordingly, we dismiss the appeal and deny his request for a COA.
    Appeal is DISMISSED; Request for COA is DENIED.
    6
    BARKETT, Circuit Judge, specially concurring:
    I agree that Davis’s application for a certificate of appealability should be
    denied on the ground that his appeal from the district court’s order lies in the
    Supreme Court, not this Court, as Davis filed an original habeas petition in the
    Supreme Court. I write separately only to clarify that my agreement on this point
    in no way detracts from my earlier opinion dissenting from this Court’s denial of
    Davis’s application to file a second or successive habeas petition. In re Davis, 
    565 F.3d 810
    , 827-31 (11th Cir. 2009) (Barkett, J., dissenting). In that opinion, I
    expressed the view that AEDPA’s limitations on filing a second or successive
    habeas petition “cannot possibly be applied when to do so would offend the
    Constitution and the fundamental concept of justice that an innocent man should
    not be executed.” 
    Id. at 827
    .
    7