Filed: Nov. 05, 2010
Latest Update: Feb. 21, 2020
Summary: [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 c
Summary: [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 co..
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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
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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).
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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
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(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
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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.
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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.
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