               Case: 17-14325       Date Filed: 10/10/2019      Page: 1 of 32


                                                                              [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS
                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 17-14325
                              ________________________

                          D.C. Docket No. 1:13-cv-01434-AT

SCOTT WINFIELD DAVIS,

                                                                       Petitioner-Appellant,


                                           versus

ERIC SELLERS, WARDEN,

                                                                     Respondent-Appellee.


                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                    (October 10, 2019)


Before MARCUS and HULL, Circuit Judges, and WRIGHT,∗ District Judge.

WRIGHT, District Judge:

∗Honorable Susan Webber Wright, United States District Judge for the Eastern District of
Arkansas, sitting by designation.
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      Scott Winfield Davis (“Davis”), a Georgia prisoner serving a life sentence

for malice murder, appeals the district court’s denial of his petition for a writ of

habeas corpus, pursuant to 28 U.S.C. § 2254. The district court granted a

certificate of appealability on two issues: (1) whether Davis’s due process claims

are procedurally defaulted and, if not, whether the claims fail on the merits; and (2)

whether the district court abused its discretion in denying Davis’s request to

employ the stay and abeyance procedure set forth in Rhines v. Weber, 544 U.S.

269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005). After careful review and oral

argument, we affirm.

                                I. BACKGROUND

      We begin by reviewing the evidence presented at Davis’s criminal trial and

procedural history.

      A. Murder, Arson, Alibi, and Initial Arrest

      On Friday, December 6, 1996, a private detective gave Davis the home

address of David Coffin, Jr., who was dating Davis’s estranged wife, Megan.

After two years of marriage, Megan had filed for divorce and left the couple’s

Atlanta home. Davis, who desperately hoped for a reconciliation, hired the

detective to follow Megan, and told an acquaintance that he would kill anyone

who had a sexual relationship with his wife. With the address in hand, Davis told

the detective that he planned to drive by Coffin’s house that weekend.
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      On Saturday, December 7, 1996, while Coffin was spending the night at

Megan’s apartment, his home was burglarized and vandalized, and a phone call

was placed from his home phone to Davis’s. Later that night, Davis left multiple,

emotional messages on Megan’s phone, begging her to answer and asking if she

were sleeping with Coffin. Coffin returned to his house the next morning and

discovered his television set destroyed and entertainment room in disarray.

Missing from the residence were Coffin’s Porsche automobile, Beretta handgun,

two shotguns, caller identification box, and two watches.

      On Monday, December 9, 1996, Davis called in sick to work. That evening,

Davis exchanged vehicles with his neighbor, Greg Gatley, telling Gatley that he

needed his Jeep Cherokee, which was white, to return a table and chairs borrowed

for a Christmas party. Coffin also owned and drove, in addition to the Porsche, a

white Jeep Cherokee. After Gatley and Davis exchanged cars, Gatley drove

Davis’s car to a nearby gym called Australian Body Works, and the next time he

saw Davis was later that night, when Davis returned the Jeep.

      On Tuesday, December 10, 1996, a morning 911 call took Dekalb County

Fire Department personnel to a road near Coffin’s home, where Coffin’s stolen

Porsche sat unoccupied and on fire. That evening, Coffin’s neighbor observed

flames coming from Coffin’s house and called 911. Firefighters later discovered

Coffin’s charred body in what remained of his incinerated home.

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      The same evening, Davis made several calls to the police. Before the

discovery of the house fire and Coffin’s body, Davis reported that an intruder had

entered his home and sprayed him with mace. Davis told the responding officer

that his attacker put a gun to his head and warned him to “leave Megan alone” and

that after a failed attempt to steal his car, the attacker fled on foot and jumped over

his backyard fence. Davis called police a second time to report that a gas can,

tools, and clothing were missing from his home after the alleged attack, and made

a third emergency call a few hours after firefighters were dispatched to the fire at

Coffin’s house. With his last call, Davis reported that he had awakened to find

flames on his back patio and a person in a ski mask with a handgun. Davis told the

responding officers that he had fired a shotgun at the masked person, who had shot

back and fled over the back fence, and that Davis had extinguished the fire with a

garden hose.

      After firefighters discovered Coffin’s body, homicide detectives Rick

Chambers and Marchal Walker went to the scene and learned about Davis’s

emergency calls and his connection to Megan and Coffin. The detectives went to

Davis’s residence, a short distance away, where Davis repeated the information he

had reported earlier. Given similarities between the events at Davis’s house and

Coffin’s, and the assailant’s reference to Megan, the detectives requested that




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Davis provide a written statement, and he agreed. Davis voluntarily allowed

officers at the scene to transport him to the homicide office to give his statement.

      At the homicide office, Davis dictated a statement to Chambers, and

Chambers asked him some questions. At first, Chambers viewed Davis as a

victim, but as his story progressed, he became suspicious and provided Davis

Miranda warnings. Davis waived his Miranda rights and continuing with the

interview, said that he had learned that Coffin’s house was on fire and that Coffin

had been shot. At that time, law enforcement had no information about the cause

of death, as Coffin’s body had been severely burned. Only later would an autopsy

reveal that Coffin died from a gunshot wound to the head. When asked how he

had learned that Coffin had been shot, Davis said that he thought that Megan or her

friend, Craig Foster, had told him during a phone conversation. Chambers left the

interview room and called Megan and Foster, who both denied that they knew how

Coffin died or that they had told Davis that Coffin had been shot. Chambers,

assisted by Walker, continued the remainder of Davis’s interview on audiotape.

Davis was free to go when the interview concluded, and Chambers and Walker

drove him home. Before Chambers left Davis’s residence, he scanned the back

fence for evidence of a fleeing intruder but found nothing.

      On Thursday, December 12, 1996, Davis told Gatley that they needed to

“get their stories straight,” and asked Gatley to tell police that he had seen him at

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the Australian Body Works Gym on December 9, the night the two had exchanged

vehicles. Gatley told Davis that he was just going to tell the truth.

       On Friday, December 13, 1996, officers arrested Davis on charges of

Coffin’s murder, the burglary and arson of Coffin’s home, and the theft of Coffin’s

Porsche. Davis was eventually released, and the Fulton County District Attorney

dismissed the charges in mid-1998, but Davis remained a suspect.

       B. Indictment and Pretrial Motion to Dismiss Based on Lost and
       Destroyed Evidence

       In November 2005, a Fulton County grand jury charged Davis with felony

and malice murder, alleging that between December 9 and 10, 1996, he shot Coffin

and set his body on fire. Davis urged the trial court that the State’s loss or

destruction of evidence during the nine-year period between his initial arrest and

eventual indictment violated his right to due process. Before trial, he filed a

motion to dismiss the indictment based on the loss or destruction of evidence and

reported that the State’s attorney had notified defense counsel that much of the

physical evidence in the case had been lost or destroyed. In his written motion,

Davis alleged that the State lost or destroyed the following evidence:

   •   a Beretta handgun (the alleged murder weapon) recovered from the murder
       scene, near Coffin’s body
   •   a bullet and a bullet casing removed from Coffin’s body
   •   a hat tassel found in the Jeep Cherokee that Davis borrowed from Gatley
   •   a gasoline can recovered from Coffin’s torched Porsche
   •   remnants of a 1996 Atlanta Olympics plastic bag recovered from Coffin’s
       torched Porsche
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   •   a shotgun recovered from Coffin’s torched Porsche
   •   a knife recovered from Coffin’s torched Porsche
   •   a flashlight recovered from Coffin’s torched Porsche
   •   a key recovered from Coffin’s torched Porsche
   •   a caller identification unit recovered from Coffin’s torched Porsche
   •   a second gasoline can found December 26, 1996 on a road close to Coffin’s
       home

Davis argued that the foregoing items were potentially exculpatory and that law

enforcement personnel had acted in bad faith by destroying or losing them. After a

hearing, the trial court denied the motion, finding that the missing evidence was

material but that without a showing of bad faith on the part of the State, the loss or

destruction of the evidence did not amount to a denial of due process.

       C. Trial, Conviction, and Posttrial Motion for a New Trial Based on
       Lost and Destroyed Evidence

       At trial, over defense counsel’s continued objection, witnesses referred to

multiple articles of lost or destroyed evidence. For example, Megan identified a

photograph of the gas can surrounded by a plastic bag remnant that firefighters

recovered from Coffin’s Porsche. She testified that the gas can, which had the

word “gasoline” printed on the diagonal, looked like one that had been present in

the home she had shared with Davis. Megan also testified that the plastic bag

remnant looked like a drawstring bag with a sports insignia that Davis had brought

home after the 1996 Atlanta Olympics, but she acknowledged that she did not

know whether the gas can and bag were the same items that she had observed in



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her marital home. Also notable was testimony that the Beretta handgun that Coffin

owned and had reported stolen was discovered under his head.

      Several witnesses testified about forensic tests attempted or performed

before physical evidence was lost or destroyed. A Georgia Bureau of Investigation

(“GBI”) firearms examiner testified that the bullet removed from Coffin and

Beretta and shell casings from the crime scene were untestable due to fire and

water damage. Although the examiner could not verify that the bullet had been

fired from the Beretta, she said that the projectile’s features were consistent with

being fired from that type of gun.

      A retired GBI fingerprint examiner, qualified as a latent fingerprint expert,

testified that extreme heat from fire and water damage would have destroyed any

fingerprints on the Beretta, magazine, bullets and casings. He recalled that he had

received fingerprint cards containing latent prints from the exterior of the Porsche

and that he had concluded, after an analysis, that these prints did not match those

taken from Davis and Megan. Testimony established that the fingerprint cards

were missing, without explanation. The fingerprint expert acknowledged that he

did not submit the prints to the GBI’s Automated Fingerprint Identification System

(“AFIS”), which compares digitized prints against a national database containing

prints of millions of convicted criminals. He also confirmed that if the fingerprint

cards were still available, they could be matched against other prints individually,

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and if the cards held prints of sufficient quality, they could be digitized and

submitted to the AFIS.

       The evidence established that six law enforcement agencies participated in

the underlying arson and murder investigations: The Atlanta Police and Fire

Departments; the DeKalb County Police and Fire Departments; the GBI; and the

Fulton County District Attorney’s Office. Testimony confirmed that various items

of missing evidence had been transferred between agencies without regard to

standard operating procedures. Chambers testified that the Beretta, bullet, and

casings had been shipped from the GBI to the Atlanta Fire Department without

proper documentation, and the items were missing without explanation. Chambers

recalled that in 1996, he asked the DeKalb police and fire departments to preserve

evidence recovered from the Porsche, but in 2005, he learned that the items had

been destroyed. Chambers testified that when he learned that evidence was

missing in 2005, he searched agency property rooms but failed to recover the

missing evidence.

       On December 4, 2006, a jury found Davis guilty of malice murder, and the

trial court imposed a life sentence. 1 Davis moved for a new trial, arguing that the

court erred in admitting evidence related to lost or destroyed evidence. Davis cited


1
 In addition to malice murder, the jury found Davis guilty on two counts of felony murder that
were vacated by operation of law. Davis v. State, 285 Ga. 343, (citing Malcom v. State, 263 Ga.
369, 372(4), 434 S.E.2d 479 (1993)).
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an expanded list of lost or destroyed evidence, including the lost fingerprint cards

that held latent prints lifted from the exterior of the burned Porsche, and testimony

at a post-trial hearing revealed that the State still had possession of the cards

shortly before Davis’s 2005 indictment. The trial court denied Davis’s post-trial

motion, finding that the lost evidence was only potentially useful and that there

was no bad faith on the part of the State.

      D. Direct Appeal

      Among Davis’s claims on direct appeal, he argued that that the trial court

committed reversible error in denying his motion to dismiss the indictment based

on the State’s loss or destruction of evidence. The Georgia Supreme Court

affirmed the trial court’s judgment, Davis v. State, 385 Ga. 343, 676 S.E.2d 215

(2009), and the United States Supreme Court denied certiorari. Davis v. Georgia,

558 U.S. 879, 130 S. Ct. 287, 175 L. Ed. 2d 135 (2009).

      E. State Habeas Proceedings

      Davis filed a state habeas petition, asserting twelve ineffective assistance of

counsel claims. The petition also included two stand-alone due process claims:

that the State’s firearms expert provided false testimony and that trial court erred in

admitting the testimony of a private investigator.

      Among Davis’s ineffective assistance claims, he faulted his attorneys for

failing to obtain an expert witness to show that the tape of his police interview,

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which was admitted at trial, had been altered and that there was a second recording

device in operation during the interview and a second tape. Davis alleged that “the

tape was stopped once and that he was threatened off the tape with the death

penalty, among other things.”2 He charged that counsel’s failure to investigate the

technical integrity of the interview tape resulted in an unfair trial, where “Detective

Chambers perjured himself . . . when he testified that the tape was continuous.”3

Davis argued that if counsel had hired an expert to show that the tape had been

altered, he could have impeached Chambers and created a complete lack of

confidence in the trial. 4

       The state habeas court held an evidentiary hearing, and Davis’s attorney

called Walker as a witness to authenticate a transcript of Davis’s police interview.

Walker testified that the transcript contained the entirety of the interview, the court

admitted the transcript, and Walker was not questioned further. Chambers also

testified and recalled that Davis’s interview was taped using a “basic” cassette

recorder, which, to his knowledge, was stopped once by Walker to turn the tape

over. Chambers stated that he was unaware of any other stops, but he said that it

was possible that the recording was stopped for another reason, such as getting

Davis some water. Chambers denied that Davis was threatened with the death


2
  ECF No. 1-3, at 9
3
  ECF No. 1-3, at 12 (Davis’s state habeas petition, Ground 12).
4
  Id.
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penalty, that the tape had been altered, or that there was a second tape recorder in

use during the interview. When asked whether the tape contained previous

recordings, Chambers responded, “It was Detective Walker’s tape, and I believe he

had another interview on there we taped over.” 5

          Davis’s state habeas counsel retained a tape expert named James Griffin,

who analyzed the audiotape played for the jury at Davis’s criminal trial. In

testimony before the state habeas court, Griffin opined that the tape was neither

authentic nor continuous. Specifically, he testified that the recording contained

voice-activated pauses, which would occur automatically when the tape recorder

detected that surrounding sound fell below a certain volume; that Davis’s interview

was taped over previous recordings; and that the tape was manually stopped two

times during the interview, once on each side, not including a stop when the tape

ran out at the end of the first side. Griffin stated that prior to one manual stop,

Davis was asked whether he wanted water, and after the recording resumed, a

someone said, “turn the tape over,” followed by a fumbling or rummaging sound.

Griffin opined that the directive, “turn the tape over,” and fumbling noises

indicated the presence of a second tape recorder.

          In a written order denying habeas relief, the state court made findings of fact

and conclusions of law related to Davis’s allegations about audiotape tampering


5
    ECF No. 1-20, at 70.
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and the existence of a second recording only in connection to his ineffective

assistance of counsel claim. The state court denied the claim, finding that Davis

failed to show either deficient performance or prejudice as required under

Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 80 L.Ed.2d 674

(1984). On March 18, 2013, the Georgia Supreme Court denied Davis’s

application for a certificate of probable cause to appeal the denial of habeas corpus

relief.

          F. Federal Habeas Proceedings

          Next, Davis filed a petition in the United States District Court for the

Northern District of Georgia seeking a writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. Davis pleaded eleven grounds for relief, each framed as a challenge to

factual and legal findings by the state habeas court. 6 Relevant to this appeal,

Davis’s petition challenged nonexistent determinations by the state court regarding

purported independent due process claims related to missing or destroyed

evidence.




6
 Respondent reports incorrectly that Davis’s § 2254 petition raised the same claims asserted in
his state habeas petition and that he filed an attachment that seemed to challenge various factual
and legal determinations by the state habeas court. Paragraph 12(a)(4) of Davis’s § 2254 petition
form required that he list all grounds raised in post-conviction petitions filed in state court, and
Davis merely complied with that instruction. See ECF 1, at 2, 10-11. Additionally, Davis’s
attachment challenging the state habeas court’s determinations refers to paragraph 14 of the
petition form, which is reserved for the petitioner’s grounds for habeas relief under § 2254.
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      Focusing exclusively on the state habeas proceedings, the district court

found that any claims based on the loss or destruction of evidence, untethered from

ineffective assistance of counsel claims, were procedurally defaulted. The district

court found that Davis’s state habeas petition included only two independent due

process claims that centered on testimony from the State’s firearms expert and

Davis’s private investigator, not the state’s loss or destruction of evidence.

      On the other hand, the district court noted that the state habeas record

contained “frequent conflation” of Davis’s ineffective assistance of counsel claims

and what were, conceivably, independent due process arguments. Accordingly, the

district court also addressed the merits of an independent due process claim based

on lost or destroyed evidence. While observing that “the state’s handling of the

evidence in this case is certainly troubling,” the district court ultimately determined

that the lost evidence was not apparently exculpatory, and even if viewed as

potentially useful, Davis failed to demonstrate bad faith.

      The district court entered judgment denying Davis’s § 2254 petition, and

commenting that the pervasive loss of evidence in Davis’s case caused it “to pause

repeatedly,” the district court granted a certificate of appealability as to whether

Davis’s independent due process claims were procedurally defaulted, and, if not,

whether the claims fail on the merits.

      G. Notices of New Evidence, Motion for Reconsideration, Expansion of
      the Certificate of Appealability
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          In denying habeas relief, the district court addressed “notices of new

evidence” that Davis filed after submission of the magistrate’s final report and

recommendation. Davis reported that his attorney had received a taped

conversation between then-retired detective Marchal Walker and criminal justice

student/amateur sleuth Jennifer Bland (“Bland”). Davis said that Walker admitted

to Bland that there were two audiotapes of his police interview and that Walker

provided both tapes, along with transcripts, to an assistant district attorney named

Joe Burford. Davis argued: “This establishes not only that . . . Chambers was

untruthful when he repeatedly testified that there was one tape, but that the

prosecutors knew that this was a lie but still allowed Chambers to testify that there

was only one tape in violation of their obligations under [Brady v. Maryland, 373

U.S. 83, 87, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States,

405 U.S. 150, 92 S. Ct. 763, 31 L.Ed.2d 104 (1972)].” 7

          Davis requested that the district court either grant an evidentiary hearing or

“remand” the case to state court based on newly discovered information. Without

addressing the merits of Davis’s request for “remand,” the district court denied his

request for a hearing, finding that he failed to meet the standard imposed under 28




7
    ECF No. 65, at 4.
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U.S.C. § 2254(e)(2)(B). 8 Following the entry of judgment denying habeas relief,

Davis moved for reconsideration, requesting that the district court either “remand”

the case back to the state court for a consideration of new evidence of a second

tape or amend the certificate of appealability to include the question of whether

Davis is entitled to “a stay and remand.” The district court granted Davis’s motion

to the extent that it amended the certificate of appealability, finding that

“reasonable jurists could disagree whether or not the Court should stay the case

and remand it the state court to examine the ‘second tape’ issue”. 9

                              II. STANDARD OF REVIEW

       When reviewing a district court's denial of a habeas petition, we review

questions of law and mixed questions of law and fact de novo, and findings of fact

for clear error. Grossman v. McDonough, 466 F.3d 1325, 1335 (11th Cir.

2006)(citing Maharaj v. Sec'y for Dep't of Corr., 432 F.3d 1292, 1308 (11th

Cir.2005), cert. denied, 549 U.S. 819, 127 S. Ct. 348, 166 L.Ed.2d 33 (2006)). The

question of whether federal habeas claims have been exhausted presents a mixed

question of law and fact to be reviewed de novo. Kelley v. Sec'y for Dep't of Corr.,




8
  Having listened to recordings of the Bland/Walker conversations, the district court observed that
Bland assumed the existence of a second tape and posed leading questions. The district court
also noted the lack of any information regarding the content of a second tape or reasons why
Davis failed to question Walker about a second tape during the state habeas hearing.
9
  ECF 89, at 2.
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377 F.3d 1317, 1345 (11th Cir. 2004)(citing Lusk v. Singletary, 112 F.3d 1103,

1105 (11th Cir. 1997)).

      When reviewing a claim adjudicated on the merits in state court, our review

under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), is limited. We may grant a writ of habeas corpus

on such a claim only where the state court’s decision “was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States,” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

      A state court decision is “contrary to” clearly established federal law if the

state court either “arrives at a conclusion opposite to that reached by [the Supreme

Court] on a question of law” or “decides a case differently than [the Supreme

Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529

U.S. 362, 413, 120 S. Ct. 1495, 1523 (2000). A state court decision is an

“unreasonable application” of Supreme Court precedent if it “identifies the correct

governing legal principle from [the Supreme Court’s] decisions but unreasonably

applies that principle to the facts of the [petitioner’s] case.” Id. A federal habeas

court may not grant relief “simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal

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law erroneously or incorrectly. Rather, that application must also be

unreasonable.” Id. at 411, 120 S. Ct. at 1522. “Pursuant to AEDPA, we may only

grant relief where the state court's ruling contained an error so clear that fair-

minded people could not disagree about it.” Krawczuk v. Sec'y, Fla. Dep't of

Corr., 873 F.3d 1273, 1293 (11th Cir. 2017)(citing Wright v. Sec'y, Fla. Dep't of

Corr., 761 F.3d 1256, 1277 (11th Cir. 2014)).

     III. DUE PROCESS CLAIMS BASED ON LOST OR DESTROYED
                           EVIDENCE

       A. Exhaustion

       Regardless of whether Davis presented an independent due process claims

based on lost or destroyed evidence in the state habeas proceedings, we find that he

clearly exhausted the claims with his motion to dismiss the indictment and motion

for a new trial and related claim on direct appeal. As Respondent now

acknowledges, Davis’s due process claims based on missing evidence “may now

be raised using somewhat different language and arguments, [but] they are still the

same due process claims that trial and appellate counsel thoroughly addressed and

litigated at the trial court level and on direct appeal.”10 Davis was not required, for


10
  Resp.’s Br. at 14-15. Respondent’s concession extends only as far as the specific items listed
in Davis’s pre-trial motion to dismiss the indictment: a Beretta handgun, a bullet and bullet
casing, a hat tassel, two gas cans, a plastic bag, a shotgun, a knife, a flashlight, and a telephone
caller ID unit. See Resp.’s Br. at 14. Respondent argues that we should defer to the Georgia
Supreme Court’s finding that Davis waived any challenge to the fingerprint card and other
evidence not specifically listed in his written motion to dismiss the indictment.

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exhaustion purposes, to raise the same claims for duplicate review in a state habeas

petition. Mauk v. Lanier, 484 F.3d 1352, 1357 (11th Cir. 2007)(citing Castille v.

Peoples, 489 U.S. 346, 349, 109 S. Ct. 1056, 1059 (1989)(“The Supreme Court has

recognized, however, that a claim can be exhausted even when there exists a

possibility of further state court review, so long as the claim has been ‘fairly

presented’ to the state courts.”).

      Davis has, however, abandoned any additional independent due process

claims, including those that he unquestionably pursued in the state habeas

proceedings, as he failed to address them plainly and prominently in his appeal

briefs. See Brown v. United States, 720 F.3d 1316, 1332 (11th Cir. 2013)(citing

United States v. Jernigan, 341 F.3d 1273, 1283 n. 8 (11th Cir. 2003)(“Merely

making passing references to a claim under different topical headings is

insufficient. Instead, the party must clearly and unambiguously demarcate the

specific claim and devote a discrete section of his argument to it . . . so the court

may properly consider it.”).

      B. The Decision of the Georgia Supreme Court Passes Review Under 28
      U.S.C. § 2254(d).

      Although the district court erred in finding Davis’s due process claims based

on lost or destroyed evidence procedurally defaulted, we affirm the denial of

habeas relief because we conclude that the Georgia Supreme Court’s denial of the

claims on direct appeal is entitled to deference under 28 U.S.C. § 2254(d). United
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States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012)(“[W]e may affirm for any

reason supported by the record, even if not relied upon by the district court.”).

      A due process claim based on lost or destroyed evidence comes under

“‘what might loosely be called the area of constitutionally guaranteed access to

evidence.’” Arizona v. Youngblood, 488 U.S. 51, 55, 109 S. Ct. 333, 102 L.Ed.2d

281 1988)(quotation omitted). In Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,

10 L. Ed.2d 215 (1963), the Supreme Court held that the Due Process Clause of the

Fourteenth Amendment commands the State to disclose favorable evidence in its

possession or control that is material to guilt of a criminal defendant. When the

State suppresses or fails to disclose material exculpatory evidence, a due process

violation results, and the question of bad faith is irrelevant. Illinois v. Fisher, 540

U.S. 544, 548, 124 S. Ct. 1200, 1202–1203, 157 L.Ed.2d 1060 (2004)(citing Brady

v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963); United States v.

Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L.Ed.2d 342 (1976)). Relevant here, the

State’s duty to preserve evidence is limited to “evidence that might be expected to

play a significant role in the suspect’s defense.” California v. Trombetta, 467 U.S.

479, 488, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413 (1984). “To meet this standard

of constitutional materiality, evidence must both possess an exculpatory value that

was apparent before the evidence was destroyed, and be of such a nature that the

defendant would be unable to obtain comparable evidence by other reasonably

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available means.” Id. at 489, 104 S. Ct. 2528 (citation omitted). Additionally, “the

failure to preserve . . . ‘potentially useful evidence’ does not violate due process

‘unless a criminal defendant can show bad faith on the part of the police.’” Illinois

v. Fisher, 540 U.S. 544, 547–48, 124 S. Ct. 1200, 157 L.Ed.2d 1060

(2004)(quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102

L.Ed.2d 281 (1988)).

          Our review is limited to the record that was before the Georgia Supreme

Court, and it focuses on what the state court “knew and did” at the time it rendered

its decision. Cullen v. Pinholster, 563 U.S. 170, 182, 131 S. Ct. 1388, 1399, 179

L. Ed. 2d 557 (2011). In his brief to the Georgia Supreme Court, Davis argued that

that the trial court committed reversable error in denying his motion to dismiss

based on the State’s loss or destruction of evidence.11 He enumerated the same lost

or destroyed items listed in his written motion (a Berretta handgun, a bullet and

casing, a hat tassel, two gas cans, a plastic bag, a shotgun, a knife, a flashlight, a

key, and a caller ID unit), and he included the expanded list of items cited in his

motion for a new trial.

          Davis generally argued that missing weapons, shell casings, projectiles and

gas cans could have been examined for fingerprints and that tests could have

shown whether the missing shell casing and projectile matched the alleged murder


11
     Br. of Appellant, Davis v. State, No. S09A0395, 2008 WL 5644537 (Ga. Dec.11, 2008).
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weapon. The bulk of Davis’s argument focused on the fingerprint cards that held

latent prints taken from the door of the Porsche. Davis maintained that the prints

would identify the “actual” murderer, and he argued that the State acted in bad

faith by failing to utilize the AFIS. Davis recounted testimony from the post-trial

hearing on his motion for a new trial, which revealed that the fingerprint cards still

existed in 2005, just prior to his indictment.

      Davis also cited evidence showing that each of the six agencies involved in

the underlying arson and fire investigations grossly mishandled the missing

evidence in violation of standard operating procedures. He argued:

      The care exhibited by these agencies was little more than what would
      be expected from school children exchanging toys at a holiday
      gathering. No one was keeping track of what was being transferred:
      for example, one chain of custody document helpfully explains that
      “three bags of evidence” were being transferred to the DA's office.
      No one can identify what was in any of the bags. The location of the
      bags, to say nothing of the contents of the bags, remains a mystery.

Scott Winfield DAVIS, Appellant, v. State of Georgia, Appellee., 2008 WL

5644537 (Ga.), at 113.

      In denying Davis’s claim, the Georgia Supreme Court identified the correct

legal standard as determined by the United States Supreme Court, repeating

Trombetta’s standard for constitutional materiality and Youngblood’s bad-faith

requirement. See Davis v. State, 285 Ga. at 349, 676 S.E.2d at 220(quoting Milton

v. State, 232 Ga. App. 672, 678–679, 503 S.E.2d 566 (1998)). Regarding the items

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that Davis listed in his pretrial motion to dismiss, the Georgia Supreme Court

found as follows:

      In his motion to dismiss, Davis challenged the loss or destruction of a
      handgun, a bullet and its casing, a tassel from a hat, two gas cans, a
      plastic bag, a shotgun, a knife, a flashlight, a key and a telephone
      caller identification unit. Other than the tassel and one of the gas
      cans, all . . . items were found either in the victim's burned car or
      home and were generally not suitable for forensic testing because they
      had been damaged by fire and doused with water. Furthermore, any
      testing that was conducted on the items was preserved at trial by
      witness testimony. In any event, Davis has failed to show that any of
      the items were exculpatory. Moreover, there is no evidence that the
      State acted in bad faith.

Davis, 285 Ga. at 349, 676 S.E.2d 215, 220 (2009)(citing Pickens v. State, 225 Ga.

App. 792, 799, 484 S.E.2d 731 (1997)).

      As for the fingerprint card and other items that were not listed in Davis’s

pretrial motion to dismiss, the Georgia Supreme Court found that Davis failed to

contest loss of the items and had “waived any such challenges” on direct appeal.

Alternatively, the state court held that “even if the challenges were not waived,

they are without merit due to any showing that the State acted in bad faith.” Davis,

285 Ga. at 349, 676 S.E.2d at 220.

       We cannot say that the Georgia Supreme Court’s resolution of Davis’s

claim was contrary to, or an unreasonable application of Trombetta, Youngblood,




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or any other clearly established federal law, or that the state court’s adjudication

was based on an unreasonable determination of the facts. 12

       We find entirely reasonable the Georgia Supreme Court’s conclusion that

the Beretta, bullet and casings, hat tassel, gas cans, plastic bag, shotgun, knife,

flashlight, key and telephone caller identification unit failed to meet the standard

for constitutional materiality. Testimony from law enforcement and forensic

examiners showed that that these items, save the hat tassel from Gatley’s Jeep

Cherokee and gas can found abandoned on a road, were rendered untestable by fire

and water damage. Unsurprisingly, Davis failed to show that these items had an

exculpatory value that was apparent before they were lost or destroyed, and he

failed to show that the hat tassel or gas can had any exculpatory value. Davis now

argues that access to the gas can recovered from Coffin’s vehicle would have

enabled him to “run serial numbers” and establish that it was dissimilar from the

gas can that he had owned when married. He also contends that access to bullets

and casings would have allowed him to track down where the ammunition was

purchased and that never-recovered torn clothing, which he maintains was left by


12
  We take the facts of this case as reported by the Georgia Supreme Court and from the record.
Davis has not directly challenged these facts, but to the extent that he does so indirectly in
making legal arguments, we find that he has not rebutted by clear and convincing evidence the
presumption of correctness that attaches to the state court’s determination of facts. 28 U.S.C.
§ 2254(e)(1)(“In a proceeding instituted by an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court, a determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”).
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the intruder who fled his home over a fence, would have identified the person who

attacked him. Whether considered individually or collectively, these items and the

missing fingerprint cards were “potentially useful” at best.

      We further find that the Georgia Supreme Court’s ultimate conclusion as to

bad faith passes review under 28 U.S.C. § 2254(d). See Gill v. Mecusker, 633 F.3d

1272, 1291 (11th Cir. 2011)(citing Harrington v. Richter, 562 U.S. 86, 112, 131 S.

Ct. 770, 792, 178 L. Ed. 2d 624 (2011)((“[T]he ‘precise question’ that must be

answered under the AEDPA standard must focus on [the] state court’s ultimate

conclusion.”). To be sure, the failure to follow standard operating procedures for

the custody and preservation of evidence is relevant to the absence or presence of

bad faith. See Youngblood, 488 U.S. at 65, 109 S. Ct. at 341, 102 L. Ed. 2d

281(noting that in Trombetta, “the importance of police compliance with usual

procedures was manifest”). However, there is no evidence that departures from

protocol were coordinated or designed to deprive Davis of evidence expected to

play a significant role in his defense. As the Georgia Supreme Court observed:

“Even if we were to assume that the State’s ‘handling of the [items] (indicated)

careless, shoddy and unprofessional investigatory procedures, (it did) not indicate

that the police in bad faith attempted to deny [Davis] access to evidence that they

knew would be exculpatory.’” Davis v. State, 285 Ga. 343, 349, 676 S.E.2d 215,




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220 (2009)(quoting Jackson v. State, 258 Ga. App. 806, 810(3), 575 S.E.2d 713

(2002)).

       In cases involving a failure to preserve evidence, a finding of bad faith is

necessarily tied to the State’s knowledge of the exculpatory value of the evidence

at the time it was lost or destroyed. Youngblood, 488 U.S. at 58, 109 S. Ct. at 337,

102 L. Ed. 2d 281(“We think that requiring a defendant to show bad faith on the

part of the police both limits the extent of the police's obligation to preserve

evidence to reasonable bounds and confines it to that class of cases where the

interests of justice most clearly require it, i.e., those cases in which the police

themselves by their conduct indicate that the evidence could form a basis for

exonerating the defendant.”). The Georgia Supreme Court was without evidence

that officers knew or should have known that the lost or destroyed evidence was

exculpatory, and as was the case in Trombetta, “[t]he record contain[ed] no

allegation of official animus towards [Davis] or of a conscious effort to suppress

exculpatory evidence,” Trombetta, 467 U.S. at 488, 104 S. Ct. at 2533, 81 L.Ed.2d

413.

       C. The District Court Did Not Err in Denying Davis’s Request for a
       Stay

       We next address whether the district court erred in denying Davis’s request

to stay and hold in abeyance this federal habeas case to allow him to pursue any



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relief available in state court regarding a “second tape” of his 1996 police

interview.13

       In Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440

(2005), the Supreme Court recognized that when a federal habeas petition is

“mixed” because it contains both exhausted and unexhausted claims, a district

court has discretion to hold the exhausted claims in abeyance while the petitioner

presents the unexhausted claims in state court. The Rhines Court recognized that

the AEDPA’s one-year statute of limitation for federal habeas petitions multiplied

the consequences of the complete exhaustion requirement mandated under Rose v.

Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L.Ed.2d 379 (1982), and presented a risk

that “petitioners who come to federal court with ‘mixed’ petitions run the risk of

forever losing their opportunity for any federal review of their unexhausted

claims.” Rhines, 544 U.S. at 275, 125 S. Ct. at 1533, 161 L. Ed. 2d 440.

       In this case, the district court did not abuse its discretion in failing to utilize

the stay-and-abeyance procedure because Davis had no available state court

remedies to pursue. Davis’s ostensible due process claims based on alteration of


13
  The district court amended the certificate of appealability, finding that “reasonable jurists could
disagree whether or not the Court should stay the case and remand it the state court to examine
the “‘second tape’ issue.” ECF No. 89, at 2. More accurately stated, the question on appeal is
whether the district court erred in failing to stay and hold in abeyance the federal habeas case,
while Davis attempted to exhaust available remedies in state court. It is not within the province
of federal habeas court to “remand” a claim to a state court or otherwise direct a state court in the
performance of its duties.

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the tape played during his criminal trial and the suppression of a second tape are

procedurally defaulted because he failed to comply with Georgia’s successive

petition rule, which provides:

      All grounds for relief claimed by a petitioner for a writ of habeas
      corpus shall be raised by a petitioner in his original or amended
      petition. Any grounds not so raised are waived unless the
      Constitution of the United States or of this state otherwise requires or
      unless any judge to whom the petition is assigned, on considering a
      subsequent petition, finds grounds for relief asserted therein which
      could not reasonably have been raised in the original or amended
      petition.

Ga. Code Ann. § 9-14-51. Our review of the record confirms that Davis never

moved to amend his state petition to include an independent due process claim

based on the state’s alteration of evidence or suppression of a second tape.

Consequently, such claims are subject to § 19-14-51, which imposes a procedural

bar that Davis can overcome only if he raises grounds for relief that are

constitutionally nonwaivable, which is not the case, or which could not reasonably

have been raised in his original or an amended state petition.

      The record confirms that Davis was aware of facts that provided a basis for

his claims before he filed his state habeas petition, and he failed to develop or

present the claims when he had the opportunity in state court. He acknowledges

that “leading up to the state habeas proceedings,” his attorney had “interviewed an

expert who explained that the single recording seemed to show stops and that a

second recorder was operating in the room” and that his attorney knew that the
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transcript of Davis’s police interview contained a reference to “tape #2.”14 Davis

explains that he chose not to proceed with an independent due process claim during

the state habeas proceedings because Chambers had testified that there was only

one tape of Davis’s interview, 15 and Walker claimed in an 2010 interview with a

private investigator that he had no knowledge of a second recording. 16 Davis

contends that if “Walker had said what he has now repeated three times, post-

conviction counsel would have clearly raised a Brady/Giglio claim based on the

State’s failure to turn over the second recording.” 17 But as Respondent notes,

Walker testified before the state habeas court, and Davis’s attorneys failed to ask

him a single question about altered evidence or the possibility of a second tape.

We find no basis to conclude that a state court judge would find that Davis’s claim

could not have been raised in the original or an amended state habeas petition.

       Because a successive petition would be procedurally barred under Georgia

law, Davis’s claim is technically exhausted, and utilization of the Rhines stay-and-

abeyance procedure would be futile and an abuse of discretion. See Coleman v.


14
   Pet’r’s Br., 56.
15
   Davis fails to cite the portion of Chambers’s trial testimony specifically stating that only one
tape was used to record the interview. Chambers identified a microcassette tape marked “David
Coffin,” as “the” tape used to record Davis’s police interview.
16
   Davis’s assertion that Walker claimed no knowledge of a second recording is based on the
affidavit of a private investigator named Debra Mulder. The affidavit, which Davis submitted in
support of his “notice of new evidence” in district court, states that Mulder interviewed Walker
in 2010, and he told her that only one tape recorder was used during Davis’s 1996 police
interview. ECF No. 64-1, at 1.
17
   Pet’r’s Br., 56-57.
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Thompson, 501 U.S. 722, 732, 111 S. Ct. 2546, 2555, 115 L. Ed. 2d 640

(1991)(noting that a “habeas petitioner who has defaulted his federal claims in

state court meets the technical requirements for exhaustion; there are no state

remedies any longer ‘available’ to him”); see also Rhines, 544 U.S. at 277, 125 S.

Ct. at 1534-35, 161 L. Ed. 2d 440(noting that the stay-and-abeyance procedure, if

employed too frequently, has the potential of undermining AEDPA objectives of

comity, finality, and federalism).

      If we were faced with a mixed petition, which is not the case, Davis still

would not meet the requisites for the stay-and-abeyance procedure. The “limited

circumstances” that permit utilization of the procedure are these: (1) the petitioner

has “good cause” for failing to exhaust claims in state court; (2) the unexhausted

claims are “potentially meritorious;” and (3) “there is no indication that the

petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at

278, 125 S. Ct. at 1535, 161 L. Ed. 2d 440.

      Davis insists that he was not aware of the factual predicate for a Brady claim

related to the second tape until after he filed his federal habeas petition. But as we

have explained, such is not the case, and Davis fails to meet the good-cause

requirement. Furthermore, while Davis alludes to a “Brady/Giglio claim regarding

the second tape,” he fails to demonstrate that this ill-defined claim is potentially

meritorious.

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      Whether proceeding under Brady or Giglio, a defendant must show that the

evidence in question was material. For a Brady claim, “‘evidence is ‘material’ . . .

when there is a reasonable probability that, had the evidence been disclosed, the

result of the proceeding would have been different.” Smith v. Cain, 565 U.S. 73,

75, 132 S. Ct. 627, 630, 181 L. Ed. 2d 571 (2012)(quoting Cone v. Bell, 556 U.S.

449, 469–470, 129 S. Ct. 1769, 173 L.Ed.2d 701 (2009)). And to prevail with the

brand of Brady error known as a Giglio violation, a petitioner must show that “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.’” Davis v. Terry, 465 F.3d 1249, 1253 (11th Cir. 2006)(quoting

Giglio, 405 U.S. at 154, 92 S. Ct. 763)). In either case, the question of materiality

must be evaluated in the context of the entire record. See United States v. Agurs,

427 U.S. 97, 112, 96 S. Ct. 2392, 2402, 49 L. Ed. 2d 342 (1976).

      Notwithstanding evidence that Davis had threatened to kill anyone who slept

with Megan, that he had hired someone to follow Megan and to obtain Coffin’s

address, and that he had gone to extreme measures to establish an alibi, Davis

contends that the only evidence linking him Coffin’s murder was his statement to

Chambers that Coffin had been shot. Davis suggests that he uttered the statement

only because Chambers threatened him with the death penalty “off tape.” Davis

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can only speculate that Chambers’s alleged threat was recorded on a second tape,

and it simply does not follow that the specter of the death penalty would prompt

Davis to say that Coffin had been shot. In sum, we find that the district court

properly declined to stay the federal habeas proceedings.

      Finally, Davis filed a motion to supplement the record with an affidavit by

Marchal Walker, which we carried with the case. Davis offers the affidavit as

additional evidence that there were two recording devices in use during his police

interview and that Walker provided two tapes and two transcripts to the

prosecution. Because we find that Davis’s ostensible claims related to a second

tape are procedurally barred, the motion is denied.

                               IV. CONCLUSION

      For the reasons stated, we AFFIRM the district court’s denial of habeas

corpus relief, we conclude that the district court committed no error in denying

Petitioner Davis’s request for a stay under Rhines v. Weber, 544 U.S. 269, 125 S.

Ct. 1528, 161 L. Ed. 2d 440 (2005), and we DENY Petitioner Davis’s motion to

supplement the record.

      AFFIRMED.




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