                                                                       [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________
                                                                  FILED
                                  No. 04-13371          U.S. COURT OF APPEALS
                          ________________________        ELEVENTH CIRCUIT
                                                            September 26, 2006
                                                           THOMAS K. KAHN
                         D. C. Docket No. 01-00290-CV-4
                                                                 CLERK

TROY ANTHONY DAVIS,


                                                              Petitioner-Appellant,

                                      versus

WILLIAM TERRY, Warden,
Georgia Diagnostic Prison,

                                                             Respondent-Appellee.

                           ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        _________________________
                              (September 26, 2006)


Before DUBINA, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Troy Anthony Davis appeals the denial of his petition under 28 U.S.C.

§ 2254 for a writ of habeas corpus. Davis was convicted and sentenced to death

for crimes that occurred in two separate incidents on the same night. First, Davis
was convicted of shooting into a car on Cloverdale Drive in a subdivision of

Savannah, Georgia. Michael Cooper, who was sitting in the front passenger seat of

the car, was severely injured by a bullet that lodged in his right jaw. Davis was

also convicted of striking Larry Young in the head with a gun later that night in a

Savannah parking lot, and of fatally shooting police officer Mark Allen McPhail as

McPhail responded to the altercation.

      Davis’ convictions and death sentence were affirmed by the Supreme Court

of Georgia. Davis v. State, 426 S.E.2d 844 (Ga. 1993). His state habeas court

petition for relief was denied in 1997, Davis v. Turpin, Civ. Action No. 94-V-162,

Order of Sept. 5, 1997 (entered Sept. 9, 1997), and the Supreme Court of Georgia

affirmed. Davis v. Turpin, 539 S.E.2d 129 (Ga. 2000). Davis then filed his federal

habeas petition, whose denial by the district court is the subject of this appeal.

      Davis’ petition for habeas corpus is based essentially on his claim that newly

discovered evidence indicates both that he did not receive a fair trial and that,

under the standard set forth in Schlup v Delo, 513 U.S. 298 (1995), he is actually

innocent of murdering Officer McPhail. In Schlup, the Supreme Court described

two types of claims pertaining to actual innocence that might be made after trial.

First, the Court addressed the substantive claim of actual innocence, as asserted in

Herrera v. Collins, 506 U.S. 390 (1993), that execution of an innocent person




                                           2
violates the Eighth Amendment even if a conviction was the product of a fair trial.1

Second, the Court recognized the procedural claim, asserted by Schlup, that

conviction of an innocent person is constitutionally impermissible when the

conviction was the product of an unfair trial. The Court held that when a death-

sentenced prisoner makes a successful showing of actual innocence, procedural

default alone cannot bar consideration of his constitutional claims of an unfair trial.

       In this case, Davis does not make a substantive claim of actual innocence.

Rather, he argues that his constitutional claims of an unfair trial must be

considered, even though they are otherwise procedurally defaulted, because he has

made the requisite showing of actual innocence under Schlup.2 Specifically, Davis

argues that:


1
 The viability of this claim remains an open question as the Court did not reach it, finding that
Herrera had failed to make a “truly persuasive demonstration of ‘actual innocence.’” Herrera,
506 U.S. at 417.
2
  To pass through the Schlup “gateway,” a petitioner’s new evidence must “establish sufficient
doubt about his guilt to justify the conclusion that his execution would be a miscarriage of
justice unless his conviction was the product of a fair trial.” Schlup, 513 U.S. at 316 (emphasis
in original). Establishing sufficient doubt of guilt does not, under Schlup, refer to the strict
“clear and convincing” standard of Sawyer v. Whitley, 505 U.S. 333 (1992), but rather the lesser
standard of Murray v. Carrier, 477 U.S. 478 (1986), which only requires a petitioner to “show
that it is more likely than not that no reasonable juror would have convicted him in the light of
the new evidence.” Schlup, 513 U.S. at 326-27. The Supreme Court painstakingly explained the
terms of the Carrier/Schlup standard. First, a habeas court cannot reject a petitioner’s claim
“solely because” there remains “sufficient evidence to support the jury’s verdict.” Id. at 331.
Instead, the court must “consider what reasonable triers of fact are likely to do.” Id. at 330. The
Court described a “reasonable” juror as one who fairly considers all of the evidence presented
and conscientiously obeys the instructions of the trial court requiring proof beyond a reasonable
doubt. See id. at 331. After articulating the appropriate standard, the Court remanded for an
evidentiary hearing to determine “the probative force” and reliability “of the newly presented
evidence in connection with the evidence of guilt adduced at trial.” Id. at 332.
                                                   3
               (1) The district court erred as a matter of law in declining to address
               Davis’ claim of actual innocence by: (a) refusing to examine all of the
               evidence of his actual innocence; (b) reaching Davis’ constitutional
               claims before considering the gateway issue of his actual innocence;
               (c) applying the standards of 28 U.S.C. § 2254(e)(2) to deny Davis an
               evidentiary hearing on the question of his actual innocence; and (d)
               failing to recognize that Davis has made a colorable showing of actual
               innocence.

               (2) The State violated Davis’ due process and fair trial rights by its
               knowing use of material false evidence and by withholding material
               exculpatory evidence.

               (3) Trial counsel was constitutionally ineffective for failing to conduct
               adequate pretrial investigation and for ineffectively representing
               Davis at trial.

               (4) Davis’ trial was fraught with procedural and substantive errors,
               including Confrontation Clause violations, which in combination
               deprived him of a fundamentally fair trial as guaranteed under the
               Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
               Constitution.3

                                         DISCUSSION

       Certainly, the threshold question in this case is whether Davis is entitled to

consideration of his claims of an unfair trial when, as he concedes, those claims are


3
  We note at the outset that Davis provides no particular factual support for this claim other than
a very brief assertion of a Confrontation Clause violation. Specifically, he challenges a single
statement within Officer Lorenzo Brown’s testimony regarding a shell casing that linked the
murder of Officer McPhail to the Cloverdale shooting. Brown testified that he was given the
casing by a homeless man who claimed to have found it “on the lawn of the trust company
bank.” On appeal, Davis complains that he did not have the opportunity to confront the homeless
man, but he did not raise this argument in his habeas petition. The argument was not considered
by the district court and will not be considered here. See Thomas v. Crosby, 371 F.3d 782, 800
(11th Cir. 2004) (Tjoflat, J., specially concurring) (“[A]ppellant’s failure to press the argument
before the district court foreclosed its right to present it on appeal.” (quoting First Ala. Bank of
Montgomery, N.A. v. First State Ins. Co., 899 F.2d 1045, 1060 n.8 (11th Cir. 1990) (internal
quotation marks omitted)).
                                                    4
procedurally defaulted for failure to present them to the state court.4 Davis

recognizes that, notwithstanding the procedural bar, the district court did consider

the merits of his constitutional claims and rejected them as a matter of law. He

nonetheless argues that the district court erred in declining to consider evidence of

his actual innocence and instead reached the merits of his constitutional claims.

Davis cannot prevail on this issue. As noted above, the procedural claim of actual

innocence under Schlup is permitted in order to assure consideration of

constitutional claims of an unfair trial where those claims have been procedurally

defaulted. Davis received precisely such substantive consideration. He cannot be

heard to complain that the test for achieving a desired result was not applied, or not

applied correctly, when the desired result was, in fact, obtained. Accordingly, we

now turn to the true gravamen of this appeal: the question of whether the district


4
  None of Davis’ current claims of an unconstitutional trial were raised in the direct appeal of his
conviction. Thus, the state habeas court ruled that they were waived and procedurally barred
pursuant to Black v. Hardin, 336 S.E.2d 754, 754-55 (Ga. 1985). Because a federal habeas court
“will not review a question of federal law decided by a state court if the decision of that court
rests on a state law ground that is independent of the federal question and adequate to support the
judgment,” Coleman v. Thompson, 501 U.S. 722, 729-30 (1991), this Court is likewise
precluded from considering these constitutional claims. A petitioner may surmount this
procedural bar in one of two ways. First, the petitioner’s defaulted claims can be reviewed if he
can show cause excusing the default and prejudice arising therefrom. See Dretke v. Haley, 541
U.S. 386, 392-93 (2004). Second, because “[t]he cause and prejudice standard is not a perfect
safeguard against fundamental miscarriages of justice[,]” id. at 393, a petitioner may still obtain
review of his constitutional claims, even if he cannot show cause and prejudice, only if his case
“implicat[es] a fundamental miscarriage of justice.” Schlup, 513 U.S. at 314-15 (1995) (quoting
McCleskey v. Zant, 499 U.S. 467, 494 (1991)); Mincey v. Head, 206 F.3d 1106, 1136 (11th Cir.
2000). It would be considered a fundamental miscarriage of justice if “a constitutional violation
has probably resulted in the conviction of one who is actually innocent.” Schlup, 513 U.S. at
327 (quoting Murray, 477 U.S. at 496) (internal quotation marks omitted).
                                                  5
court erred in concluding that Davis’ constitutional claims of an unfair trial, as he

asserts them in this case, must be rejected as a matter of law.

       Davis first argues that his constitutional right to a fair trial was violated

because the State knowingly presented false testimony which had been coerced by

the police to obtain his conviction. Specifically, Davis argues that the State

violated his Fourteenth Amendment right to due process by offering material

evidence that state agents knew to be coerced and false in violation of Giglio v.

United States, 405 U.S. 150 (1972). Davis also argues that the State failed to

provide him with exculpatory impeachment evidence of the coercive investigative

tactics used to obtain the false testimony in violation of Brady v. Maryland, 373

U.S. 83 (1963). Additionally, Davis argues that he was denied the effective

assistance of counsel guaranteed by the Sixth Amendment, citing trial counsel’s

failure to investigate possible police coercion of witnesses, to interview critical

eyewitnesses prior to trial, and to properly prepare for trial. We address each claim

in turn.

       I. Giglio Claim

       Giglio error, a species of Brady error, occurs when “the undisclosed

evidence demonstrates that the prosecution’s case included perjured testimony and

that the prosecution knew, or should have known, of the perjury.” Ventura v. Att’y

Gen., Fla., 419 F.3d 1269, 1276-77 (11th Cir. 2005) (quoting United States v.

                                            6
Agurs, 427 U.S. 97, 103 (1976)). In order to prevail under Giglio, Davis must

establish that: (1) the prosecutor knowingly used perjured testimony or failed to

correct what he subsequently learned was false testimony; and (2) such use was

material – i.e., that there is “any reasonable likelihood” that the false testimony

“could . . . have affected the judgment.” Giglio, 405 U.S. at 154; see also

Tompkins v. Moore, 193 F.3d 1327, 1339 (11th Cir. 1999). Davis fails to meet

this standard.

      The only Giglio argument actually asserted in Davis’ federal habeas petition

(as opposed to his appeal brief) is that the prosecution knowingly presented the

false testimony of Kevin McQueen and vouched for this allegedly false testimony.

But Davis fails to make any specific allegations tending to show that the

government knew McQueen’s statement to be false. At trial, the State introduced

McQueen’s sworn statement that, when the two were inmates together, Davis

confessed to the killing. In his present affidavit McQueen asserts that he “made up

the story about the confession” in order “to get even with” Davis after an

argument.

      But as the district court correctly stated:

     A showing of state misconduct requires, at a minimum, an allegation
     that the State presented McQueen’s testimony while knowing it was
     false. McQueen’s affidavit, accepted as truthful for the sake of
     argument, shows only that McQueen, on his own and prompted by no
     one else, sought to take out his anger against Petitioner by lying to a jail
     warden, by making a false statement to a police officer, and by lying to
                                           7
         the court and the jury when he testified that Petitioner confessed to
         shooting Officer McPhail. McQueen did not present the affidavit
         recanting his testimony until well after the trial had ended, and no
         evidence has been presented to indicate that the State knew that his trial
         testimony was false.

Based on this sole allegation regarding Kevin McQueen, Davis cannot support a

Giglio claim as a matter of law.

         Although not referenced in his habeas petition, Davis did attach to his petition

the affidavits of other witnesses, which he now argues in his brief additionally

support his Giglio claim. We have carefully reviewed these affidavits and conclude

that, as a matter of law, they are insufficient to support a Giglio claim, either because

the assertions contained therein do not rise to the level of coercive police conduct,5 or

because there is no reasonable likelihood that the false testimony could have affected

the jury’s judgment.6 See United States v. Alzate, 47 F.3d 1103, 1110 (11th Cir.

1995).

         II. Brady Claim

         To prevail on his Brady claim, Davis would have to prove that: (1) the

government possessed evidence favorable to him; (2) the defendant did not possess

the evidence and could not have obtained it with reasonable diligence; (3) the


 5
   For example, the “coercion” alleged in some affidavits goes no further than being “told” by the
 police to sign a statement. In those affidavits, the affiant claims he did not read the statement at
 the time he signed it but now claims that its contents were false.
 6
  For example, the allegation that D.D. Collins’ interrogation was coercive was raised at trial and
 obviously did not impact the jury’s finding of guilt.
                                                 8
government suppressed the favorable evidence; and (4) the evidence was material.

LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1268 (11th Cir. 2005) (citing

United States v. Meros, 866 F.2d 1304, 1308 (11th Cir. 1989)). Davis alleges that the

State violated Brady by failing to disclose material exculpatory evidence concerning

Dorothy Ferrell – namely, that Ferrell, who testified against Davis at trial, had

contacted the district attorney’s office regarding the possibility of a favorable

disposition in an impending criminal action against her in exchange for her testimony

in Davis' case. Davis says this omission was material because Ferrell's testimony was

important in securing a guilty verdict against him.

      At trial, Ferrell, who was staying in a hotel across the street from the murder

scene, testified on behalf of the State. She identified Davis as the shooter after her

memory was triggered by a picture of Davis on the seat of a police car. She then

picked Davis out of a five-person photographic line up and identified Davis at trial.7

After Ferrell testified, defense counsel’s wife received a phone call from a person

purporting to be Dorothy Ferrell saying that someone in the state attorney’s office

had told Ferrell they would help her if she testified in Davis’ case, and that Ferrell’s

testimony at Davis’ trial had been completely false. When defense counsel informed

the state attorney of the phone call, the state attorney revealed Ferrell’s written



 7
   Ferrell now claims that the police did not present her with a photographic line-up, but simply
 showed her one photograph of Davis. However, as noted above, it was Ferrell herself who
 initially and voluntarily identified Davis as the shooter.
                                                    9
request for assistance in a criminal case in which she was a defendant. Her letter

stated that if the prosecutor would help, “I promise you, you will not be making a

mistake.” Recalled by the judge to explain, Ferrell denied making the phone call.

Though she admitted to writing the letter, she denied that the prosecutor helped her.

The judge then offered, and defense counsel declined, to recall Ferrell to the stand.

      Because it is clear that the defense was aware at trial of Ferrell’s contact with

the state attorney’s office, there was no Brady violation. Moreover, this claim was

presented to the state habeas court, which found that “there was ‘no suppression of

any understanding or agreement for prosecutorial leniency and no grounds for

reversal.’” Because there was no clear and convincing evidence to the contrary, the

district court accepted the state habeas court's finding of fact that there was no

suppression of any understanding or agreement. Although the prosecution had an

obligation to advise defense counsel of Ferrell’s call, the state habeas court found that

the omission was not material, citing the defense team's reason for not calling Ferrell

back to testify once it found out about the call: “We weren't going to get very far with

this witness, simply because we had fairly impeached her on the issue of shoplifting.”

      III. Ineffective assistance of counsel

      Likewise, Davis cannot establish a successful claim of ineffective assistance of

counsel. Davis essentially argues that his counsel was ineffective because:

      1.     Counsel failed to contact Joseph Blige, who allegedly could have
             furnished evidence that Davis had no fight with anyone at the Cloverdale
                                            10
             party.

      2.     Counsel failed to ask defense witness Joseph Washington about the shirt
             that Red Coles was wearing, information that would have been
             exculpatory in light of other evidence presented to the jury.

      3.     Counsel failed to interview April Hester, who hosted the Cloverdale
             party and saw Red Coles acting “nervous and upset” soon after
             McPhail’s shooting.

      4.     Counsel failed to effectively impeach Larry Young, Harriet Murray, Red
             Coles, and Stephen Sanders.

      A successful claim under Strickland has “two components. First, the defendant

must show that counsel's performance was deficient. This requires showing that

counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the defense. This requires showing

that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Davis

fails, as a matter of law, to meet this standard. His counsel’s alleged instances of

misconduct, even if true, do not add up to a performance so deficient that it deprived

Davis of a fair trial. A review of the trial transcript reveals that Davis’ counsel were

fully prepared for trial and presented a viable defense: a case of mistaken identity.

Counsel extensively cross-examined the State’s witnesses to show that they were not

trustworthy and to raise doubt about the witnesses’ alleged observations of the

shooting. Counsel also presented significant testimony that Red Coles was the
                                             11
person who had committed the murder. Most importantly, none of the testimony

which Davis asserts counsel should have obtained would overcome the prejudice

requirement of Strickland in light of the totality of the evidence presented at trial.

      Having very carefully considered this record, we cannot say that the district

court erred in concluding that Davis has not borne his burden to establish a viable

claim that his trial was constitutionally unfair.

AFFIRMED.




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