971 F.3d 524
5th Cir.2020Background
- Len Davis, a New Orleans police officer, learned that Kim Groves filed an internal-affairs complaint after witnessing his partner pistol-whip her nephew; Davis then solicited a hit man to kill Groves.
- Davis used NOPD resources (station, squad car, radio) to meet, show Groves’s neighborhood to accomplices, and to direct the shooter to her location; wiretaps captured planning calls.
- Davis was convicted of conspiring to deprive civil rights and depriving civil rights under color of law; a jury recommended death and the sentence was imposed after resentencing.
- Postconviction, Davis filed a pro se 28 U.S.C. § 2255 motion raising ineffective-assistance, juror-misconduct/external-influence, and Brady/Giglio suppression claims; the district court denied relief and declined a Certificate of Appealability (COA).
- The Fifth Circuit reviewed whether Davis made the "substantial showing" required for a COA on each constitutional claim and whether an evidentiary-hearing COA could issue.
Issues
| Issue | Plaintiff's Argument (Davis) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Ineffective assistance of counsel (guilt phase) — failure to investigate/contest "under color of law" | Counsel failed to investigate Davis’s prior personal relationship with Groves and therefore failed to undermine the Government’s color-of-law theory | Even with further investigation, overwhelming evidence (wiretaps, on-duty use of police car/station/radio, partner Williams’s testimony) proves color-of-law; no reasonable probability of different result | COA denied — no debatable Strickland prejudice |
| Jury external influence / juror bias (Remmer/Tanner) | Sequestration and alleged juror incidents (dozing, toy, spouse’s fears) compromised right to impartial jury | No evidence of private communications or external contact; dozing/toy are internal matters not Remmer-type external influence; some claims forfeited | COA denied — claims not debatable |
| Brady / Giglio — nondisclosure of FBI internal report and redactions of FBI 302s | FBI withheld investigatory report explaining why monitors missed calls and provided redacted 302s that hid impeachment/exculpatory material | The internal report does not change the evidentiary significance of taped calls or Williams’s corroborating testimony; redactions produced no materially impeaching or exculpatory information | COA denied — no materiality; claims not debatable |
| COA to appeal denial of evidentiary hearing | Davis sought COA to review district court’s refusal to hold an evidentiary hearing | A COA may issue only for a substantial showing of constitutional error; absent a debatable constitutional claim, appellate COA for evidentiary hearing cannot be issued | COA on evidentiary hearing denied for lack of debatable constitutional claim |
Key Cases Cited
- Buck v. Davis, 137 S. Ct. 759 (2017) (standard for Certificate of Appealability; jurists-of-reason test)
- Miller-El v. Cockrell, 537 U.S. 322 (2003) (COA is jurisdictional; standard for substantial showing)
- Strickland v. Washington, 466 U.S. 668 (1984) (effective-assistance two-prong test: deficiency and prejudice)
- Remmer v. United States, 347 U.S. 227 (1954) (external contact with jurors presumptively prejudicial)
- Tanner v. United States, 483 U.S. 107 (1987) (distinction between internal juror matters and external influences)
- Kyles v. Whitley, 514 U.S. 419 (1995) (Brady materiality: evidence that could put whole case in different light)
- United States v. Bagley, 473 U.S. 667 (1985) (reasonable-probability standard for Brady materiality)
- Giglio v. United States, 405 U.S. 150 (1972) (impeachment evidence regarding witness credibility falls under Brady)
- Harrington v. Richter, 562 U.S. 86 (2011) (likelihood of different result must be substantial, not merely conceivable)
- West v. Atkins, 487 U.S. 42 (1988) (color-of-law/state-action principles applied to § 242 claims)
- United States v. Causey, 185 F.3d 407 (5th Cir. 1999) (earlier consolidated appeal addressing facts and color-of-law analysis)
- United States v. Davis, 609 F.3d 663 (5th Cir. 2010) (post-resentencing appeal affirming conviction and sentence)