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Davis v. Kelley

United States District Court, W.D. Arkansas, Fayetteville Division

April 16, 2017

WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT


          Susan O. Hickey United States District Judge.

         Don William Davis is an inmate in the Arkansas Department of Correction under a sentence of death for the 1990 murder of Jane Daniel. Mr. Davis's execution is scheduled for April 17, 2017. On April 12, 2017, Davis filed a Motion for Relief from Judgment Pursuant to Federal Rule 60(b)(6) (Doc. 50) and Motion for Stay of Execution (Doc. 51). Following briefing by the parties, this Court heard oral arguments. For the reasons set forth below, the Court finds that both motions should be denied.

         Procedural History

         Davis was convicted of capital murder on March 6, 1992 and was sentenced by the jury to death on March 9, 1992. The Arkansas Supreme Court affirmed Davis's conviction and sentence on October 4, 1993. See Davis v. State, 863 S.W.2d 259 (Ark. 1993). The United States Supreme Court denied certiorari on April 4, 1994. Davis v. Arkansas, 511 U.S. 1026 (1994).

         A petition for relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure was filed on behalf of Davis on May 5, 1994. An amended petition was later filed and an evidentiary hearing was held. The state circuit court denied relief on June 29, 1999. That decision was affirmed by the Arkansas Supreme Court on May 31, 2001. Davis v. State, 44 S.W.3d 726 (Ark. 2001).

         On April 1, 2002, Davis filed a Petition for Writ of Habeas Corpus in this Court. (Doc. 17). The petition was denied on January 28, 2004. (Doc. 29). The Eighth Circuit Court of Appeals granted a certificate of appealability on two issues: (1) whether Davis's right to due process was violated under Ake v. Oklahoma, 470 U.S. 68, 82-83 (1985) by the trial court's denial of funds for an independent mental health expert and (2) whether appellate counsel ineffectively litigated the denial of expert funds on direct appeal. On September 14, 2005, the Eighth Circuit denied relief on both issues. The Court also refused to grant a hearing pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). Davis v. Norris, 423 F.3d 868, 879 (8th Cir. 2005).

         On February 27, 2017, the Governor of the State of Arkansas set Davis's execution for April 17, 2017.

         Davis now seeks relief from his habeas judgment pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. Davis also seeks a stay of execution due to the pending Rule 60(b)(6) motion.

         Rule 60(b)(6) Motion

         Davis argues that relief should be granted under Rule 60(b)(6) and that the Court should consider, pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013), certain claims the Court previously ruled had been procedurally defaulted.[1] According to the motion, the procedurally defaulted claim at issue is Claim IV of Davis's habeas petition, which argued that trial counsel rendered ineffective assistance at the penalty phase in violation of the Sixth Amendment by failing to present a witness to evaluate and explain the school and institutional records introduced and failing to present other witnesses in mitigation.

         Under 28 U.S.C. § 2244(b)(3)(A), a second or successive habeas petition should be dismissed for failure to obtain authorization from the Court of Appeals. A Rule 60(b)(6) motion will be considered a second or successive habeas corpus application if it contains a “claim.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). To determine whether a motion is a second or successive habeas corpus application, “claim is defined as an ‘asserted federal basis for relief from a state court's judgment of conviction' or as an attack on the ‘federal court's previous resolution of the claim on the merits.'” Ward v. Norris, 577 F.3d 925, 933 (8th Cir. 2009) (quoting Gonzalez, 545 U.S. at 530, 532). However, the motion does not attack a judgment “on the merits” if it “merely asserts that a previous ruling which precluded a merits determination was in error - for example, a denial for such reasons as . . . procedural default.” Gonzalez, 545 U.S. at 532, n. 4.

         Here, as set forth above, Davis requests relief through a challenge to this Court's determination that certain claims were procedurally defaulted, relying on Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013). To the extent that Davis's motion concerns the exact claim set forth in Claim IV of his petition, which was found procedurally barred by this Court, the restrictions applicable to second or successive petitions do not apply.

         Rule 60(b)(6) “permits a court to reopen a judgment for ‘any . . . reason that justifies relief.'” Buck v. Davis, 137 S.Ct. 759, 777 (2017). However, to obtain relief from judgment under Rule 60(b)(6), a movant must request relief “within a reasonable time” and must demonstrate “‘extraordinary circumstances' justifying the reopening of a final judgment.” Fed.R.Civ.P. 60(c)(1). Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). The rule “vests wide discretion in courts, but . . . only in ‘extraordinary circumstances.'” Buck, 137 S.Ct. at 777. The court may consider a wide range of factors to determine whether extraordinary circumstances are present, including “‘the risk of injustice to the parties' and ‘the risk of undermining the public's confidence in the judicial process.'” Id. (quoting Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863-64 (1988)). However, “[s]uch circumstances will rarely occur in the habeas context.” Gonzalez, 545 U.S. at 535.

         Many courts have addressed Rule 60(b)(6) with respect to Martinez and Trevino.[2] Many have noted that “[g]enerally, a change in the law that would have governed the dispute, had the dispute not already been decided, is not by itself an extraordinary circumstance.” Kansas Pub. Emps. Ret. Sys. v. Reimer & Koger Assocs., Inc., 194 F.3d 922, 925 (8th Cir. 1999). However, the recent Supreme Court decision in Buck v. Davis, 137 S.Ct. 759, 777-78 (2017) appears to clarify the fact that a Rule ...

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