Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Davidson v. Howell

United States District Court, D. Nevada

September 11, 2019

RODERICK R. DAVIDSON, Petitioner,
v.
JERRY HOWELL, et al., Respondents.

          ORDER DENYING PETITION

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Roderick Davidson, a Nevada prisoner, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. I will deny Davidson's habeas petition, deny him a certificate of appealability, and direct the Clerk of the Court to enter judgment accordingly.

         BACKGROUND

         Davidson's convictions are the result of events that occurred in Clark County, Nevada on June 28 and 30, 2004. See Ex. 38, ECF No. 11-11. On June 28, 2004, Davidson went to the home of Robert Garvin, a neighbor of Davidson's parents. Ex. 27, ECF No. 11 at 14. Davidson knocked on Garvin's door, and when Garvin let him inside, Davidson battered Garvin and stole money and Garvin's vehicle. Id. at 15, 19. On June 30, 2004, Davidson was walking through a church parking lot when he came across a maintenance worker, Rulon Spencer. Ex. 27, ECF No. 11 at 80, 82. Davidson approached Spencer while he was in a church closet and asked him about employment. Id. at 85, 88. Davidson then battered Spencer and stole his wallet and vehicle. Id. at 89, 93.

         Davidson was convicted by a state court jury of two counts of burglary, two counts of battery with substantial bodily harm, one count of robbery of a victim 60 years of age or older, and one count of robbery without any aggravating element. Ex. 38, ECF No. 11-11. Davidson appealed. Ex. 39, ECF No. 11-12. The Supreme Court of Nevada affirmed in part and reversed in part, holding that one of the counts of robbery was a double-jeopardy violation and one of the counts of battery was a misdemeanor, not a felony, so Davidson was wrongly sentenced as a habitual criminal for that count. Ex. 44, ECF No. 12-3. Davidson petitioned for rehearing. Ex. 45, ECF No. 12-4. The Supreme Court of Nevada denied that petition. Ex. 46, ECF No. 12-5. On December 23, 2008, the state district court entered an amended judgment of conviction in accordance with the Supreme Court of Nevada's decision. Ex. 47, ECF No. 12-6. The Supreme Court of Nevada issued its remittitur on January 13, 2009. Ex. 49, ECF No. 12-8. Davidson's petition for en banc reconsideration was denied on January 20, 2009. Ex. 48, ECF No. 12-7; Ex. 50, ECF No. 12-9.

         Davidson filed a post-conviction habeas corpus petition on October 16, 2009, which the state district court denied. Ex. 51, ECF No. 12-10; Ex. 57, ECF No. 12-16. Davidson appealed, and the Supreme Court of Nevada affirmed. Ex. 62, ECF No. 13-1. The remittitur issued on January 7, 2013. Ex. 63, ECF No. 13-2.

         Davidson then filed two other motions in state district court. First, he moved for modification of sentence on April 15, 2013. Ex. 64, ECF No. 13-3. The court denied that motion on May 22, 2013. Ex. 68, ECF No. 13-7. Davidson did not appeal the denial of that motion. However, on June 10, 2013, while the time to appeal was still running, he filed a motion to correct an illegal sentence, which the state district court denied. Ex. 69, ECF No. 13-8; Ex. 72, ECF No. 13-11. Davidson appealed, and the Supreme Court of Nevada affirmed. Ex. 73, ECF No. 13-12. The remittitur issued on February 11, 2014. Ex. 74, ECF No. 13-13.

         Davidson commenced this action by mailing his proper-person petition to this court on March 21, 2014. ECF No. 1. I appointed counsel, who filed an amended petition. ECF No. 9. Davidson's amended petition asserts the following grounds for relief:

         1. The state district court improperly admitted inmate request/grievance forms into evidence.

         2. Davidson was required to fill out inmate/request grievance forms, which were then used against him at trial.

         3. The state district court improperly admitted unreliable, tainted, and unduly suggestive identifications.

         4. The state district court improperly admitted Davidson's unreliable and involuntary confession.

         5. The state district court improperly refused to sever the two cases.

         6. There were cumulative errors at Davidson's trial.

         7. Davidson's trial was not speedy.

         8. Davidson's trial counsel was ineffective by:

a. failing to object to the admission of the inmate request/grievance forms;
b. failing to object to the flight instruction;
c. failing to object to prosecutorial misconduct;
d. failing to object to the reasonable doubt instruction; and
e. cumulative errors committed by Davidson's trial counsel.

         9. Davidson's appellate counsel was ineffective by:

a. failing to include a ground in his direct appeal concerning the flight instruction;
b. failing to include a ground in his direct appeal concerning prosecutorial misconduct;
c. failing to include a ground in his direct appeal concerning the reasonable doubt instruction; and
d. cumulative errors committed by Davidson's appellate counsel.

Id. The Respondents filed a motion to dismiss. ECF No. 20. On August 9, 2016, I granted the Respondents' motion to dismiss in part, finding Ground 6 to be unexhausted. ECF No. 34. Davidson moved for partial dismissal of Ground 6 from the amended petition, which I granted. ECF Nos. 35, 37. The Respondents filed an answer to the amended petition on February 13, 2017. ECF. No. 44. Davidson filed a reply on June 26, 2017. ECF No. 49.

         DISCUSSION

         Standard of Review

         28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable application of clearly established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 75 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable application' clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) (internal citation omitted).

         “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). But “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to meet” and “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt” (internal quotation marks and citations omitted)).

         Section 2254(d) generally applies to unexplained as well as reasoned state-court decisions. “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Harrington, 562 U.S. at 99. When the state court has denied a federal constitutional claim on the merits without explanation, the federal habeas court

must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the United States Supreme] Court.

Id. at 102.

         Ground 1

          In Ground 1, Davidson claims that his federal constitutional rights were violated when the state district court admitted his inmate request/grievance forms into evidence. ECF No. 9 at 12. Davidson contends the admission of the forms prejudiced him, rendered the trial fundamentally unfair, and undermined the presumption of innocence. Id. at 13. He asserts that the forms should have been redacted, or the court should have at least given a limiting instruction. Id. The Respondents argue that the evidence was admitted only as a handwriting analysis, the substance of the forms was not discussed during trial, and the State had to revert to the use of the forms because Davidson refused to comply with the handwriting expert in providing samples. ECF No. 44 at 8.

         This ground was raised in Davidson's direct appeal. Ex. 40, ECF No. 11-13 at 31. The Supreme Court of Nevada held that “the district court did not plainly err in admitting Davidson's inmate request/grievance forms.” Ex. 44, ECF No. 12-3 at 4 n.1. As this ground was denied on the merits by the Supreme Court of Nevada without analysis, the question here is whether Davidson has shown that there was no reasonable basis for that ruling. See Harrington, 562 U.S. at 98.

         Robert Garvin, one of the victims, testified that Davidson's mother, Gwendolyn Davidson, provided him with an apology letter written by Davidson. Ex. 27, ECF No. 11 at 13, 36-37; see Ex. 79, ECF No. 13-18. Rulon Spencer, the other victim, testified that he, too, received a letter from Davidson. Ex. 27, ECF No. 11 at 80, 101-104; see Ex. 80, ECF No. 13-19. Gwendolyn Davidson testified that Davidson gave the two apology letters to a good friend and that Gwendolyn later delivered those letters to the victims. Ex. 29, ECF No. 11-2 at 63, 70.

         On February 10, 2005, the state district court granted the State's motion to compel a handwriting sample in order to compare Davidson's handwriting to the apology letters. Ex. 12, ECF No. 10-12. The state district court ordered Davidson “to give to representatives of the Las Vegas Metropolitan Police Department and/or the Clark County Detention Center's nursing staff samples of his handwriting” and that those thereafter be submitted “to the Crime Lab of the Las Vegas Metropolitan Police Department” for analysis. Id. Jan Seaman Kelly, a forensic document examiner, testified that she attempted to receive a writing exemplar from Davidson. Ex. 29, ECF No.11-2 at 24, 33. Kelly testified that Davidson was slow to start the handwriting sample process and that when he did start the sample, “the writing was very slow.” Id. at 34. Kelly testified that Davidson's writing exemplar was not adequate, as it was not “considered natural writing” due to the time that Davidson “kept looking at the floor” and writing slowly. Id. at 34, 37. Kelly terminated the exemplar and requested a business writing. Id. at 37. Davidson's inmate request/grievance forms were provided to Kelly, and she “identified Roderick Davidson as the writer of both of the questioned letters.” Id. at 37, 44.

         Beverly Amin, an arrest supervisor at the jail who maintains inmate records, testified about inmate request/grievance forms, which are “call[ed] kites for short.” Ex. 29, ECF No.11-2 at 11-13. Amin testified that

[i]f an inmate has a request, they want something or a grievance or are upset about something, they have to fill out one of these forms and it's passed on to the person or persons who take care of it for them. And they answer - and the answer is given back to them on that same form.

Id. at 13. Davidson's inmate request/grievance forms were admitted into evidence without objection. Id. at 14.

         Davidson's inmate request/grievance forms ranged from July 8, 2004 through April 10, 2005. Ex. 81, ECF No. 13-20. In those forms, it is apparent that Davidson wished to attend the following programs: narcotics anonymous, domestic violence, successful release, chemical dependency, anger management, and alcoholics anonymous. Id. at 3-6, 9-29, 31-50, 53. The inmate request/grievance forms also show that there was a fight in the jail in which Davidson had to be subdued, that Davidson's request to be transferred to a different tower was denied because he was not “write up free for 6 months, ” and that Davidson had never been incarcerated in Nevada before, implying that he had been incarcerated elsewhere. Id. at 8, 30, 51.

         “A habeas petitioner bears a heavy burden in showing a due process violation based on an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir. 2005), as amended on reh'g, 421 F.3d 1154 (9th Cir. 2005). “[C]laims deal[ing] with admission of evidence” are “issue[s] of state law.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009); see also Lewis v. Jeffers, 497 U.S. 764 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state law.”). Therefore, the issue before me is “whether the state proceedings satisfied due process.” Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). In order for the admission of evidence to provide a basis for habeas relief, the evidence must have “rendered the trial fundamentally unfair in violation of due process.” Johnson v. Sublett, 63 F.3d 926, 930 (9th Cir. 1995) (citing Estelle v. McGuire, 502 U.S. 62, 67 (1991)). Not only must there be “no permissible inference the jury may draw from the evidence, ” but also the evidence must “be of such quality as necessarily prevents a fair trial.” Jammal, 926 F.2d at 920 (emphasis in original) (citation omitted).

         Further, “[u]nder AEDPA, even clearly erroneous admissions of evidence that render a trial fundamentally unfair may not permit the grant of federal habeas corpus relief if not forbidden by ‘clearly established Federal law,' as laid out by the Supreme Court.” Yarborough, 568 F.3d at 1101 (citing 28 U.S.C. § 2254(d)); see also Dowling v. United States, 493 U.S. 342, 352 (1990) (explaining that the Supreme Court has “defined the category of infractions that violate ‘fundamental fairness' very narrowly”). Importantly, the Supreme Court “has not yet made a ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Id. The Supreme Court has also declined to hold that evidence of other crimes or bad acts “so infused the trial with unfairness as to deny due process of law.” Estelle, 502 U.S. 62, 75 n.5 (1991); see also Alberni v. McDaniel, 458 F.3d 860 (9th Cir. 2006).

         Although the inmate request/grievance forms included information that might indicate Davidson may have had issues with addiction and violence, the forms were admitted for a permissible purpose: showing the basis of the handwriting analysis expert's opinion that Davidson wrote the two apology letters. See Jammal, 926 F.2d at 920. And Davidson has not established that this evidence is impermissible in a constitutional sense. Regardless of whether the evidence had a constitutionally permissible purpose, the admission of the forms was not “of such quality as necessarily prevent[ed] a fair trial.” Jammal, 926 F.2d at 920. Accordingly, the Supreme Court of Nevada's ruling was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). I will deny Davidson habeas corpus relief with respect to Ground 1.

         Ground 2

         In Ground 2, Davidson claims that his federal constitutional rights were violated when he was required to fill out the inmate request/grievance forms, which the State then used as evidence against him. ECF No. 9 at 14. Davidson explains that he was never advised that the statements in the forms could be used against him or that he had the right to consult an attorney before communicating with state officials using the forms. Id. at 15. Davidson reasons that the lack of notice on the form suggests to the inmate that the form will remain a confidential internal document. ECF No. 49 at 14. The Respondents argue that Davidson has failed to establish that the forms had a substantial and injurious effect on the verdict. ECF No. 44 at 9.

         This ground was raised in Davidson's direct appeal. Ex. 40, ECF No. 11-13 at 34. The Supreme Court of Nevada held that “the admission [of Davidson's inmate request/grievance forms] did not violate Davidson's Sixth Amendment right to counsel.” Ex. 44, ECF No. 12-3 at 4 n.1. As this ground was denied on the merits by the Supreme Court of Nevada without analysis, the question here is whether Davidson has shown that there was no reasonable basis for the Supreme Court of Nevada's ruling. See Harrington, 562 U.S. at 98.

         Although the Supreme Court of Nevada addressed this ground only in regards to Davidson's Sixth Amendment right to counsel, Davidson also argues that his Fifth Amendment protection against self-incrimination was also violated. See ECF No. 14; Ex. 40, ECF No. 11-13 at 34. The Respondents rely on precedent that “[t]he taking of [handwriting] exemplars d[oes] not violate [a] petitioner's Fifth Amendment privilege against self-incrimination.” Gilbert v. California, 388 U.S. 263, 266 (1967). But Davidson's inmate request/grievance forms were used for handwriting comparison purposes, rather than a handwriting exemplar, so Gilbert is not directly applicable.

         The privilege against self-incrimination “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.” Schmerber v. California, 384 U.S. 757, 761 (1966). “[T]he protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers.” Id. at 763-64. The distinction between what is considered privileged and what is not considered privileged “is that the privilege is a bar against compelling ‘communications' or ‘testimony,' but that compulsion which makes a suspect or accused the source of ‘real or physical evidence' does not violate it.” Id. at 764; see also United States v. Euge, 444 U.S. 707, 718 (1980) (“The compulsion of handwriting exemplars has been the subject of far less protection than the compulsion of testimony and documents.” (emphasis added)); Gilbert, 388 U.S. at 266-67 (“A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the Fifth Amendment's] protection.” (emphasis added)). Therefore, the issue at hand is whether the inmate request/grievance forms was merely used for the “real or physical” handwriting contained within them or whether they were used as communications by Davidson.

         The Supreme Court has explained that “compelling [a defendant] to speak within hearing distance of the witnesses, even to utter words purportedly uttered by the robber, was not compulsion to utter statements of a ‘testimonial' nature; he was required to use his voice as an identifying physical characteristic, not to speak his guilt.” United States v. Wade, 388 U.S. 218, 222-23 (1967) (explaining that the privilege against self-incrimination turns on the “compulsion of the accused to give evidence having testimonial significance, ” in other words, “compulsion to disclose any knowledge he might have”). Similarly, the inmate request/grievance forms were used to identify a physical characteristic-Davidson's handwriting-not to demonstrate his guilt. In fact, the forms discuss only Davidson's wishes to attend classes for addiction and violence, the fact that there was a fight in the jail, and that Davidson was ineligible for a transfer. See Ex. 81, ECF No. 13-20. The forms do not discuss the facts of the crimes and especially do not discuss Davidson's guilt thereof. Further, when the State introduced the forms and offered them into evidence, the State and the State's witnesses did not touch upon the contents of the forms; rather, they discussed only the handwriting on the forms. See Ex. 29, ECF No. 11-2 at 11-14, 37-49; see also Wade, 388 U.S. at 223 (“[T]his case presents no question of the admissibility in evidence of anything [the defendant] said or did at the lineup which implicates his privilege. The Government offered no such evidence as part of its case, and what came out about the lineup proceedings on [the defendant's] cross-examination . . . involved no violation of [the defendant's] privilege.”).

         Because the inmate request/grievance forms were admitted only to identify Davidson's handwriting, I cannot find that Davidson's Fifth Amendment privilege against self-incrimination was violated. And because the State did not elicit any incriminating statements from Davidson, Davidson's Sixth Amendment right to counsel was also not violated. See Massiah v. United States, 377 U.S. 201, 206 (1964); Randolph v. California, 380 F.3d 1133, 1143 (2004). Therefore, the Supreme Court of Nevada's ruling was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States, and was not based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). I will deny Davidson habeas corpus relief with respect to Ground 2.

         Ground 3

         In Ground 3, Davidson claims that his federal constitutional rights were violated when the state district court admitted unreliable, tainted, and unduly suggestive identifications. ECF No. 9 at 16. Davidson explains that neither Garvin nor Spencer had ample opportunity to view the assailant at the time of the crime, demonstrated a high level of detailed accuracy in their initial descriptions of the assailant, and successfully identified Davidson as the assailant during initial photographic lineups. ECF No. 49 at 23. Davidson also explains that the victim's later identifications were tainted by their receipt of apology letters. ECF No. 9 at 16. The Respondents argue that Davidson had every opportunity to cross-examine both victims about the issues of mistaken identity. ECF No. 44 at 10.

         This ground was raised in Davidson's direct appeal. Ex. 40, ECF No. 11-13 at 37. The Supreme Court of Nevada held that “the identification procedures were not suggestive or unduly tainted.” Ex. 44, ECF No. 12-3 at 4 n.1. As this ground was denied on the merits by the Supreme Court of Nevada without analysis, the question here is whether Davidson has shown that there was no reasonable basis for that ruling. See Harrington, 562 U.S. at 98.

         Garvin was given a photo lineup following the attack. See ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.