United States District Court, D. Nevada
RODERICK R. DAVIDSON, Petitioner,
JERRY HOWELL, et al., Respondents.
ORDER DENYING PETITION
P. GORDON UNITED STATES DISTRICT JUDGE
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
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,
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.
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.
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.
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
state district court improperly admitted inmate
request/grievance forms into evidence.
Davidson was required to fill out inmate/request grievance
forms, which were then used against him at trial.
state district court improperly admitted unreliable, tainted,
and unduly suggestive identifications.
state district court improperly admitted Davidson's
unreliable and involuntary confession.
state district court improperly refused to sever the two
There were cumulative errors at Davidson's trial.
Davidson's trial was not speedy.
Davidson's trial counsel was ineffective by:
a. failing to object to the admission of the inmate
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
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
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.
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
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;
(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.
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
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)).
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, 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.
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.
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.
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.
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.
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.
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).
“[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.
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, 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.
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.
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.
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.
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.”).
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, 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.
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.
was given a photo lineup following the attack. See