                                                                            [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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