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Davenport v. Smith

United States District Court, E.D. Kentucky, Southern Division, London

October 3, 2017



          David L. Banning, United States District Judge


         This matter is before the Court on the Report and Recommendation (“R&R”) of Magistrate Judge Edward B. Atkins (Doc. # 36), wherein he recommends that Petitioner Lewis Davenports's pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. # 1) be denied as meritless. Petitioner having filed objections to the R&R (Doc. # 37), and Warden Smith having responded (Doc. # 39), the R&R is ripe for review. Petitioner subsequently filed a Motion to Hold his Pending Habeas Petition in Abeyance (Doc. # 40), which has now been fully briefed (Docs. # 43 and 44), and is also ripe for review. For the reasons set forth herein, Petitioner's Abeyance Motion (Doc. # 40) is denied, the R&R (Doc. # 36) is adopted as the findings of fact and conclusions of law of the Court, and Petitioner's Petition for a Writ of Habeas Corpus (Doc. # 1) is denied.


         The facts underlying this case have been recited many times since Petitioner's convictions for murder and first-degree robbery in 2002, culminating in the Supreme Court of Kentucky's summary in Davenport v. Commonwealth, 177 S.W.3d 763, 766-67 (Ky. 2005). (Doc. # 36 at 2-3) (quoting extensively from the Supreme Court of Kentucky opinion affirming Petitioner's conviction). Petitioner filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 12, 2015. (Doc. # 1). Warden Aaron Smith filed his response to the habeas petition on December 9, 2015. (Doc. # 20). Petitioner replied on May 18, 2016, (Doc. # 33), at which point the matter was fully submitted to the chambers of Magistrate Judge Atkins.

         On January 31, 2017, Magistrate Judge Atkins issued his R&R, recommending that the Petition (Doc. # 1) be denied. (Doc. # 36). Petitioner filed his Objections on February 23, 2017 (Doc. # 37), and Warden Smith responded on March 10, 2017. (Doc. # 39). While the Court's review of the Magistrate Judge's R&R was pending, Petitioner filed a Motion to Hold his Pending Habeas Corpus Petition in Abeyance in order to bring additional claims in the Kentucky state courts. (Doc. # 40). Warden Smith responded, (Doc. # 43) and Petitioner filed his Reply. (Doc. # 44).

         III. ANALYSIS

         A. Petitioner's Habeas Petition will not be held in abeyance.

         The Supreme Court has long held that federal district courts cannot adjudicate habeas petitions comprised of both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509 (1982). With the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), petitioners for habeas corpus relief have one year to bring a habeas petition after exhausting their state court remedies. Rhines v. Weber, 544 U.S. 269, 274 (2005). To accommodate the situation where an unexhausted claim may need to be brought in state court while fully exhausted claims are already in federal court, the Supreme Court balanced AEDPA's one-year statute of limitations against a district court's inability to adjudicate petitions containing unexhausted claims and determined that, in limited circumstances, a district court could grant a “stay and abeyance” on the exhausted claims before it, pending the resolution of the unexhausted claims. Rhines, 544 U.S. at 277. Because “stay and abeyance should be available only in limited circumstances, ” id., to succeed on such a motion the petitioner must “show good cause for failing to present the claims before the state court in the first instance, and … show that his unexhausted claims are not ‘plainly meritless.'” Wagner v. Smith, 581 F.3d 410, 419 (6th Cir. 2009) (quoting Rhines, 544 U.S. at 277).

         Petitioner's Motion does not detail the facts underlying his request for a stay, instead stating only that he has “found two (2) issues that have not been addressed by the McCreary Circuit Court.” (Doc. # 40 at 1). When challenged by Respondent's Memorandum in Opposition, (Doc. # 43), Petitioner provided additional details in his Reply, alleging the following issues related to his ineffective-assistance-of-counsel claims: (1) Petitioner's “Trial Counsel Failed to Appeal the Trial Courts[sic] Ruling on the Motion to Suppress Petitioner's Statement”; (2) “Trial Counsel Failed to present any Mitigation Evidence at Sentencing Phase”; and (3) Trial Counsel's[sic] Failed to Appeal the Trial Courts[sic] overruling of Petitioner's Judgment Notwithstanding the Verdict and Motion for a New Trial.” (Doc. # 44 at 2). According to Petitioner, his Motion contained new evidence in the form of two affidavits, available in his original habeas petition. Id. at 2-3.

         Several factors urge this Court to deny Petitioner's Abeyance Motion. First, the “new evidence” is not new, but was included in his petition (Doc. # 1), and has been presented to the state courts, including the original trial court. (Doc. # 20-1 at 48) (Petitioner's direct appeal brief to the Supreme Court of Kentucky) (“A motion for a judgment notwithstanding the verdicts and for a new trial was filed on April 19, 2002 … An addendum, including affidavits of two inmates who said that Chris Davenport told them that he had bargained for his testimony was filed on May 13, 2002.”). Thus, the Court finds that Petitioner has not presented any “new” evidence in support of his Motion. Second, Petitioner has failed to allege facts or present arguments establishing good cause to excuse his failure to bring the claims in state court before. Nor has he presented any explanation as to why his new claims are not “plainly meritless.” Wagner, 581 F.3d at 419.

         Because Petitioner has identified no new evidence, shown no good cause for his failure to bring any claims he believes he may still be able to exhaust in state court, and failed to demonstrate why his new claims are not “plainly meritless, ” Petitioner's Motion to Hold his Pending Habeas Petition in Abeyance (Doc. # 40) is denied. Accordingly, the Court will review the R&R.

         B. The Magistrate Judge's R&R is adopted.

         The Court reviews de novo those portions of the R&R to which specific objections have been filed. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). Where no objections are made, or the objections are vague or conclusory, the Court is not required to review under a de novo, or any other, standard. Thomas v. Arn, 474 U.S. 140, 150 (1985); United States v. Jenkins, No. 6:12-cr-13-GFVT, 2017 WL 3431834, at *1 (E.D. Ky. Aug. 8, 2017). Allegations in pro se habeas petitions are held to a less stringent standard and given more “liberal construction, ” however “inartfully pleaded.” Franklin v. Rose, 765 F.2d 82, ...

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