Murderpedia has thousands of hours of work behind it. To keep creating
new content, we kindly appreciate any donation you can give to help
the Murderpedia project stay alive. We have many
plans and enthusiasm
to keep expanding and making Murderpedia a better site, but we really
need your help for this. Thank you very much in advance.
William Prince
DAVIS
Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder:
June 2,
1978
Date
of arrest:
July 8,
1978
Date of birth:
April 24,
1957
Victim profile: Richard
Lang, 60 (manager
ice cream store)
Method of murder:
Shooting
(.32 caliber pistol)
Location: Harris County, Texas, USA
Status: Executed
by lethal injection in Texas on September 14,
1999
Date of Execution:
September 4,
1999
Offender:
William
Prince Davis #614
Last Statement:
I would like to
give thanks to God Almighty, by whose grace I am saved
through His son, Jesus Christ, without whom I would be
nothing today. Because of this mercy and grace, I have come
a long way, and I would like to thank God and others who
have been instrumental. I would like to say to the Lang
family how truly sorry I am in my soul and in my heart of
hearts for the pain and misery that I have caused from my
actions. I am truly sorry. And to my family I would also
like to extend to them the same apology for the pain and
misery that I have put them through, and I love them dearly
from the bottom of my heart, and one day I would like to see
them on the other side. Some I will; some I won’t. I would
like to thank all of the men on Death Row who have showed me
love throughout the years, but especially the last two or
three weeks, and I hold nothing against no man. I am so
thankful that I have lived as long as I have. I hope that I
have helped someone. I hope that [by] donating my body to
science that some parts of it can be used to help someone,
and I just thank the Lord for all that he has done for me.
That is all I have to say, Warden.
Oh, I would like to
say in closing, "What about those cowboys?"
William Prince Davis Age: 42 (21) Executed: Sept. 15, 1999 Education level: 7th grade or less
Davis fatally shot manager Richard Lang during a
robbery of the Red Wing Ice Cream Co. on West Dallas on June 2,
1978. He was convicted of capital murder in a one-day trial.
Texas
Attorney General
Monday,
September 13, 1999
MEDIA ADVISORY:
William Prince Davis scheduled to be executed
AUSTIN - Texas Attorney General John Cornyn offers
the following information on William Prince Davis who is scheduled to
be executed
after 6 p.m., Tuesday, September 14th.
FACTS OF THE CRIME
On the evening of June 2, 1978, Michael Lang and
his father, Richard Lang, were closing up an ice cream store Richard
Lang had managed in Houston, for eighteen years. As several of the
company drivers were turning in their receipts for that day, Davis,
twenty-one years old at the time, appeared at the door of the office.
Davis ordered everyone up against the wall, then immediately shot
Richard Lang once in the lower chest with a .32 caliber pistol.
Davis escaped with more than $700 and a shotgun.
Richard Lang died; he was sixty years old at the time of his death.
Davis was arrested on July 8, 1978. Subsequently, Davis gave a written
confession to this offense. According to Davis, Richard Lang made a
move towards him so he shot him.
PROCEDURAL HISTORY
In July 1978, Davis was indicted by a Harris County
grand jury for the intentional murder of Richard Lang in the course of
committing and attempting to commit robbery, a capital offense. Davis
was tried before a jury upon a plea of not guilty. On September 18,
1978, the jury found him guilty of the capital offense. A separate
punishment hearing ensued and, on September 19, 1978, the jury
answered affirmatively the two special issues submitted and in
accordance with state law, the trial court (the 209th District Court
of Harris County, Texas) sentenced Davis to death.
Davis' conviction and sentence of death were
automatically appealed to the Texas Court of Criminal Appeals, which
affirmed the conviction and sentence on February 20, 1980. On November
3, 1980, the United States Supreme Court denied certiorari review.
In February 1981, Davis filed an application for
state writ of habeas corpus in the convicting court. On September 13,
1989, the Court of Criminal Appeals denied the application. Davis did
not petition the Supreme Court for certiorari review. On July 1, 1991,
Davis filed a second application for state writ of habeas corpus in
the convicting court. The Court of Criminal Appeals denied relief on
December 1, 1993. Davis did not petition the Supreme Court for
certiorari review.
In February 1997, Davis filed a motion in the
United States District Court for the Southern District of Texas
requesting the appointment of counsel to file a federal habeas
petition. After many delays, Davis eventually filed a federal habeas
petition on May 8, 1998. On June 2, 1998, the district court entered
an order finding that Davis' federal habeas petition was not timely
filed and, alternatively, that Davis' claims were not worthy of relief.
The district court also denied Davis a certificate of appealability.
On October 28, 1998, after full briefing and oral
argument, the United States Court of Appeals for the Fifth Circuit
similarly denied Davis a certificate of appealability, thereby
affirming the district court's denial of relief. The Fifth Circuit
denied a motion for rehearing on November 25, 1998, and the Supreme
Court denied certiorari review on April 19, 1999.
On April 21, 1999, the convicting court scheduled
Davis' execution for September 14, 1999. Several months later, Davis
initiated the filing of his third application for state writ of habeas
corpus. The Court of Criminal Appeals denied state habeas relief on
August 30, 1999. On September 9, 1999, Davis filed a motion with the
Fifth Circuit for a stay of execution and for permission to file a
successive federal habeas petition. The matter is pending before the
Fifth Circuit.
PRIOR CRIMINAL HISTORY
At the punishment phase of trial, the State
presented evidence reflecting Davis' lengthy criminal record. On June
9, 1975, Davis pled guilty to the following offenses in the 178th
District Court of Harris County, Texas: (1) burglary of a habitation,
which was committed on October 14, 1974 (cause no. 220574); (2)
aggravated robbery, which was committed on October 14, 1974, with the
use of a pistol (cause no. 220575); (3) aggravated robbery, which was
committed on September 5, 1974, with the use of a butcher knife (cause
no. 220576); and (4) aggravated robbery, which was committed on July
18, 1974, with the use of a pistol (cause no. 220577). Davis received
a six-year sentence for each conviction.
In his confession to the instant capital murder,
Davis admitted to committing a number of additional offenses upon his
release from prison in December 1977. These offenses included: an
aggravated robbery in which Davis and another man seriously beat a man
in an office building who would not open his safe; the burglary of
eight townhouses near the Galleria area of Houston; three burglaries
at an apartment complex; two burglaries at a shopping center; four
robberies of a service station; and the burglary of an office located
next to the ice cream store where the instant murder occurred just one
week before.
DRUGS AND/OR ALCOHOL
There was no evidence of drug or alcohol use in
connection with the instant offense.
William Prince Davis, 42,
99-09-14, Texas
Nearly 21 years after he arrived on Texas' death row, convicted
murderer William Prince Davis was executed Tuesday evening for
gunning down the manager of a Houston ice cream company during a
robbery.
But his final thoughts were of the Dallas Cowboys.
At the end of a lengthy statement in which he expressed love for his
family and friends, he looked at the warden and said, "Oh, I'd like
to say in closing, What about those Cowboys!"
It's not the 1st time an inmate on the death row gurney mentioned
his fondness for the Dallas football team. Earl Behringer, executed
June 11, 1997, thanked the Cowboys for "giving me a lot of enjoyment
these past years."
Davis said he was not the same person who committed the crime.
"You see dying before you a different man," he said, and later said
of his victims' family, "I'm sorry for the pain and misery I caused
them by my actions."
Davis had similar thoughts for his own relatives, saying he hoped to
"see you on the other side.
"I'm so thankful I've lived as long as I have," he said, adding he
planned to donate his body to science.
In his final moments, Davis took a deep breath, gasped several times
and lost consciousness. He was pronounced dead at 6:19 p.m., 7
minutes after the flow of lethal drugs began.
Davis, 42, has spent half his life on death row, where only 10 of
the 462 condemned inmates have logged more time.
The 7th-grade dropout from Harris County was convicted of fatally
shooting Richard Lang, 60, on the evening of June 2, 1978.
Several drivers were in the company offices turning over the day's
receipts to Lang when Davis showed up, according to court records.
As Lang approached Davis, he was shot once in the chest with a .32-caliber
pistol. The gunman then ordered the drivers against the wall and
fled with $712 and a shotgun taken from the office.
"He walked in, pulled a robbery and shot the guy," Ken Sparks, who
prosecuted the case, recalled. "He gave a written confession, so the
trial was primarily over the question of life or death and not
really an issue of guilty or not."
Davis contended he thought the victim was coming after him.
"I had to shoot the man," he told police. "He was going to take the
gun away from me."
3 drivers identified Davis as the gunman. Testimony showed that 5
days after the shooting, he returned to commit a burglary at the
same ice cream company.
A jury convicted Davis of capital murder in a 1-day trial.
"I never heard anything over the years" about Davis' execution,
Sparks said. "I'd always kind of wondered."
While it takes an average of about 10 years before convicted killers
in Texas are executed, Davis' case languished in the Texas Court of
Criminal Appeals for 8 1/2 years before his initial appeal was
denied in September 1989.
"As a citizen, I'm outraged it takes this long," Sparks said. "You
ought to get a fair trial, a fair appeal. If it's upheld, punishment
ought to be carried out."
Lang was murdered 6 months after Davis got out of prison, where he
served 2 1/2 years for burglary and aggravated robbery committed
when he was 17. In one of the robberies, Davis held a hostage at
gunpoint as police tried to apprehend him. In another of the
robberies, his weapon was a butcher knife.
In punishment testimony, jurors also learned of an extensive
criminal record that began when Davis was 10 and stealing bicycles.
By age 12, he was sent to a juvenile detention home for a year and
was returned there twice by the time he was 15, when he received 18
months in a state reform school at Gatesville.
When arrested for the Lang murder, Davis told authorities that since
age 12, he had spent only about a year and a half outside custody
and had committed more than 20 violent felonies.
Davis' attorneys, trying to keep him off death row, argued
unsuccessfully that his earlier crimes were the result of youthful
immaturity.
Davis becomes the 24th condemned inmate to be put to death in Texas
this year, and the 188th overall since the state resumed capital
punishment on Dec. 7, 1982.
(sources: Associated Press & Rick Halperin)
William Prince Davis
fatally shot Richard Lang in the chest during an armed robbery
at Red Wing Ice Cream Co., on June 2,1978. He returned to the
scene to watch the medical examiners take the victim’s body away,
then robbed the same ice cream company in Houston a week after
he murdered Lang.
After his apprehension, Davis confessed to
murdering Lang and committing 20 other robberies and burglaries.
He had even robbed the same convenient store four times.
Davis had been convicted in 1975 for one
burglary and three robberies, during two of which he had taken
hostages. He was released in December 1977, seven months before
he shot Richard Lang in the chest.
The guilt/innocence phase of the trial was
“open and shut”, according to the defense and the prosecution.
After Davis’s confession and the testimony of eye witnesses,
including Richard Lang’s son, a truck driver for Red Wing Ice
Cream Co., it took the ten jury 10 minutes to find Lang guilty.
Kenneth Sparks, assistant district attorney,
presented Davis’s “long history” of criminal violence and asked
for the death penalty.
Davis was 21 years old and he had been out of
reformatory institutions for only a year and a half since he had
begun stealing bicycles when he was 12 years old.
George Pletcher was a civil lawyer, who was
appointed to represent Davis. It was his first criminal case. He
was teamed with Tom Dunn, an experienced criminal attorney.
Pletcher’s arguments against the death penalty were that,
“violence can only beget violence.”
Recently Pletcher stated he didn’t see the
point of executing Davis. Pletcher also said that Richard Lang’s
family was not for the death penalty, “they wanted justice to be
served,” said Pletcher, “but they weren’t out for blood.”
On Sept. 19, 1978, following the end of
William Davis’s trial, the jury decided Davis would be a
continuing threat to society and acted deliberately, therefore
should be sentenced to death.
Before his execution 42-year-old William
Davis claimed to be a different man than the 21-year-old man who
shot Richard Lang in the chest for little over $700 dollars. He
claimed he was not the same man who had so little remorse that
he robbed the same office a week after he had murdered there.
Ken McLean, the appellant lawyer who filed
one of William Davis’s appeals said, “ I know a reborn Christian
when I see one, and Davis had definitely found God.”
Davis was on death row for 21 years, half of
his life. Only 10 inmates had been on death row longer.
Davis was executed on Sept. 14, 1999. His
last words received a lot of publicity. After a long speech
expressing remorse for his crimes and love for his family and
friends, he turned toward the warden and said “Oh, I’d like to
say in closing, What about those Cowboys!”
U.S. 5th Circuit Court of Appeals
REVISED, November 6, 1998
IN THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
WILLIAM PRINCE DAVIS, Petitioner-Appellant, v. GARY L JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
No. 98-20507
October 21, 1998
Appeal from the United States
District Court for the Southern District
Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
KING, Circuit Judge:
William Prince Davis, a Texas death row
inmate, requests a certificate of appealability in order to
appeal the district court's dismissal of his writ of habeas
corpus. In resolving this appeal, we must decide an issue of
first impression for this circuit, namely, whether the one-year
limitations period for the filing of federal habeas claims by
state prisoners is a statute of limitations subject to equitable
tolling or is a jurisdictional bar. We conclude that the
limitations period does not circumscribe federal jurisdiction,
and can be equitably tolled in appropriate, albeit extraordinary
circumstances. However, because we find that Davis has not made
a substantial showing of the denial of a constitutional right,
we deny Davis leave to appeal on all issues presented for
appellate review.
I. FACTS AND PROCEDURAL HISTORY
In September 1978, William Prince Davis (Davis)
was tried in the 209th District Court of Harris County, Texas
for a capital offense, murder occurring during a robbery. The
Texas Court of Criminal Appeals summarized the facts of Davis's
underlying crime as follows:
On the evening of June
2, 1978, [Davis] appeared at the door of the office of the Red
Wing Ice Cream Company, just as several of the company drivers
were turning in their day's receipts. The proprietor, Richard
Lang, aware that something was amiss, began to approach [Davis].
[Davis] shot Lang once in the lower chest with a .32 calibre
pistol, and then ordered the drivers up against the wall. He
escaped with more than $700 and a shotgun. Lang died. At the
time of this offense [Davis] was twenty-one years old.
Ex parte Davis , 866 S.W.2d 234, 237 (Tex.
Crim. App. 1993) (en banc). The guilt-innocence phase of Davis's
trial lasted only one day, and on September 18, 1978, the jury
found Davis guilty of capital murder.
During the punishment phase of Davis's trial,
the prosecutor introduced evidence of Davis's extensive criminal
history. On September 19, 1978, the jury returned affirmative
answers to two special questions, asked pursuant to the capital
sentencing scheme employed by the State of Texas at the time of
Davis's trial. In their answers, the jury found that Davis acted
"deliberately" and that he probably would be dangerous in the
future. 1 On October 2,
1978, the trial court sentenced Davis to death.
On direct appeal, the Texas Court of Criminal
Appeals affirmed Davis's conviction and death sentence, see
Davis v. State , 597 S.W.2d 358 (Tex. Crim. App. 1980) (en
banc), and the United States Supreme Court declined to grant a
writ of certiorari, see Davis v. Texas , 449 U.S. 976
(1980).
After failing in his efforts on direct
appeal, Davis filed a state application for a writ of habeas
corpus in 1989, which the Court of Criminal Appeals denied in a
one-page unpublished opinion. Davis then filed a second state
application for habeas relief in 1991, raising essentially the
same issues as he does in this federal petition. Two years later,
the 209th District Court issued findings of fact and conclusions
of law and recommended that habeas relief be denied. The Court
of Criminal Appeals then denied habeas relief. See Ex parte
Davis , 866 S.W.2d at 234.
On February 13, 1997, Davis requested an
appointment of counsel because his state habeas counsel had
become incapacitated. Two weeks later, Davis moved for an
extension of time to file a federal habeas petition. On March 4,
the district court appointed counsel in the federal proceedings
and granted Davis an extension to file his petition until May
26, 1997. On February 18, 1998, the district court granted a
further extension allowing Davis to file his petition by April
20, 1998. 2
On April 6, 1998, the district court granted
Davis's motion to extend his filing deadline to May 8, 1998. On
May 8, Davis filed his federal habeas petition, raising several
ineffective assistance of counsel claims. Respondent Johnson
filed a motion in the district court to dismiss the petition as
time-barred, claiming that Davis filed his petition after the
applicable one-year statute of limitations had run.
On June 2, 1998, the district court denied
Davis habeas relief on alternative grounds. First, the court
found that Davis's petition was untimely because it was filed
after the applicable one-year limitations period. It ruled that
it was "without the power to resurrect the petition" after the
filing period had lapsed and that it therefore may have erred by
previously granting Davis extensions of time to file beyond the
statutory period. Davis v. Johnson , 8 F.Supp.2d 897, 900
(S.D. Tex. 1998). Second, the district court analyzed the merits
of Davis's ineffective assistance of counsel claims and found
them to be lacking. Based on these findings, the court dismissed
the habeas petition. The district court also denied Davis a
certificate of appealability (COA) to appeal his denial of
habeas relief to this Court.
II. DISCUSSION
Davis claims that the district court should
have equitably tolled the applicable one-year limitations period
rather than dismiss his petition as time-barred. He also argues
that he is entitled to a COA to appeal claims related to his
underlying state-court conviction based on the Sixth Amendment
right to the effective assistance of counsel. Specifically,
Davis argues that his attorney was ineffective in three
situations--first, by failing to object to prosecutorial
statements concerning youth as a mitigating factor; second, by
inadequately defining the term "deliberate" for the jury; and
third, by failing to offer certain testimony during the
punishment phase of the trial. We consider each issue in turn.
A. Standard of Review
Under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Davis must obtain a COA in order to
appeal the denial of his habeas petition. 3 A COA may only be issued if
the prisoner has made a "substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). "A `substantial
showing' requires the applicant to `demonstrate that the issues
are debatable among jurists of reason; that a court could
resolve the issues (in a different manner); or that the
questions are adequate to deserve encouragement to proceed
further.'" Drinkard v. Johnson , 97 F.3d 751, 755 (5th
Cir. 1996) (quoting Barefoot v. Estelle , 463 U.S. 880,
893 n.4 (1983)), cert. denied , 117 S. Ct. 1114 (1997).
Davis's first contention is that the district
court erred by dismissing his federal habeas claim as barred by
the statute of limitations. "When the district court dismisses a
petition on procedural, nonconstitutional grounds, we employ a
two-step COA process." Robison v. Johnson , 151 F.3d 256,
263 (5th Cir. 1998) (reviewing district court dismissal of
habeas petition as procedurally barred); see Murphy v.
Johnson , 110 F.3d 10, 11 (5th Cir. 1997) (reviewing
district court dismissal for non-exhaustion of state-court
remedies). First, we must determine if Davis has made a credible
showing that his claim should not have been dismissed as time-
barred. See Robison , 151 F.3d at 263; Murphy ,
110 F.3d at 11. If Davis meets that requirement, we can then
decide if his contentions regarding his underlying state court
conviction raise a substantial showing of the denial of a
constitutional right. See Robison , 151 F.3d at 263;
Murphy , 110 F.3d at 11.
B. Statute of Limitations
Section 101 of AEDPA, incorporated as 28
U.S.C. § 2244(d)(1), included a one-year period of limitations
within which state prisoners could file federal habeas corpus
petitions. 4
Specifically, § 2244(d) was amended to read:
(1) A
1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run
from the latest of--
(A) the date on which
the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which
the constitutional right asserted was initially recognized by
the Supreme Court, if the right has been newly recognized by
the Supreme Court and made retroactively applicable to cases
on collateral review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through the
exercise of due diligence.
(2) The time during
which a properly filed application for State post- conviction
or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any
period of limitation under this subsection.
In this case, the Supreme Court denied Davis
a writ of certiorari on direct appeal in 1980, and his last
state petition for a writ of habeas corpus was decided in 1993.
Thus, under a literal reading of § 2244(d), Davis's right to
petition a federal court for habeas relief terminated years
before he filed his petition in May 1998. However, in United
States v. Flores , 135 F.3d 1000, 1006 (5th Cir. 1998), we
held that for § 2254 petitions, "one year, commencing on April
24, 1996, presumptively constitutes a reasonable time for those
prisoners whose convictions had become final prior to the
enactment of the AEDPA to file for relief."
5
We formulated the Flores rule to ensure that federal
habeas claims were not retroactively time-barred before the
effective date of AEDPA. See id. at 1005. Thus, Davis had
until April 24, 1997 to petition a federal court for habeas
relief. See Flanagan v. Johnson , 154 F.3d 196, 202 (5th
Cir. 1998) (holding that the limitations period for convictions
becoming final before AEDPA's effective date ends April 24,
1997); accord Ross v. Artuz , 150 F.3d 97, 103 (2d Cir.
1998).
Davis failed to file his federal habeas claim
until May 1998, after the limitations period had run, and the
district court therefore dismissed his petition as time-barred.
Davis argues that the district court failed to consider whether
the AEDPA limitations period should have been equitably tolled,
and that his case presents an appropriate circumstance in which
to equitably toll the statute of limitations to allow his habeas
claim to proceed.
In order to decide the question of whether
the AEDPA limitations period should have been equitably tolled
in this case, we must first determine whether the period is a
statute of limitations or a jurisdictional bar. If the one-year
filing period in § 2244(d)(1) is a limitation on the
jurisdiction of federal courts, then federal courts lack the
power to extend the period to allow for late adjudication of
claims. However, if the AEDPA period is a statute of limitations,
courts can, in extraordinary circumstances, allow late claims to
proceed under the doctrine of equitable tolling. "The doctrine
of equitable tolling preserves a plaintiff's claims when strict
application of the statute of limitations would be inequitable."
Lambert v. United States , 44 F.3d 296, 298 (5th Cir.
1995) (citing Burnett v. New York Cent. R.R. Co. , 380
U.S. 424, 428 (1965)).
Whether AEDPA's one-year limitations period
limits federal court jurisdiction or is subject to equitable
tolling is a question of first impression for this circuit.
See Henderson v. Johnson , 1 F.Supp.2d 650, 653 (N.D. Tex.
1998). The only circuit courts to have considered the question
have held that the AEDPA limitations period is not a
jurisdictional bar. See Miller v. New Jersey State Dep't of
Corrections , 145 F.3d 616, 618 (3d Cir. 1998); Miller v.
Marr , 141 F.3d 976, 978 (10th Cir.), cert. denied ,
No. 98-5195, 1998 WL 407280 (Oct. 5, 1998); Calderon v.
United States Dist. Court , 128 F.3d 1283, 1289 (9th Cir.
1997), cert. denied , 118 S. Ct. 899 (1998); cf.
Henderson , 1 F.Supp.2d at 654 (holding that the limitation
is not a jurisdictional bar); Parker v. Bowersox , 975 F.
Supp. 1251, 1252 (W.D. Mo. 1997) (adopting the Calderon
rationale and holding that the AEDPA period is not
jurisdictional). We now join our sister circuits in concluding
that AEDPA's one-year statute of limitations does not operate as
a jurisdictional bar and can, in appropriate exceptional
circumstances, be equitably tolled.
"The objective of a court called upon to
interpret a statute is to ascertain congressional intent and
give effect to legislative will." Johnson v. American
Airlines, Inc. , 745 F.2d 988, 992 (5th Cir. 1984) (citing
Philbrook v. Glodgett , 421 U.S. 707, 713 (1975)). The
clearest indication of congressional intent is the words of the
statute itself. See Hall Fin. Group, Inc. v. DP Partners, Ltd.
Partnership (In re DP Partners Ltd. Partnership) , 106 F.3d
667, 670 (5th Cir.), cert. denied , 118 S. Ct. 63 (1997).
When the language of a statute is unambiguous we must follow its
plain meaning. See Stiles v. GTE Southwest Inc. , 128
F.3d 904, 907 (5th Cir. 1997).
A plain reading of the language of § 2244,
which contains the AEDPA limitations period, leads to the
conclusion that Congress intended that the limitations period be
interpreted as a statute of limitations. The limitations period
does not "speak in jurisdictional terms" and does not explicitly
refer to any limitations on jurisdiction. Zipes v. Trans
World Airlines, Inc. , 455 U.S. 385, 394
(1982). Instead, § 2244(d)(1) states only that "a 1-year period
of limitation shall apply" and does not contain any restrictive
language that would imply a limit on federal court jurisdiction.
The Supreme Court has held that limitations periods with even
more limiting language than the AEDPA provision could be
equitably tolled. See Burnett ,
380 U.S. at 426 (holding that a limitations period mandating
that "no action shall be maintained . . . unless commenced
within three years from the day the cause of action accrued" was
subject to equitable tolling). In addition, the limitation
period does not establish an absolute outside limit within which
suits must be filed, as in the ERISA limitations period we
recently found to be a statute of repose. See Radford v.
General Dynamics Corp. , 151 F.3d 396, 400 (5th Cir. 1998).
In that case, we found that a limitations period mandating that
"[n]o action may be commenced . . . after the earlier of" six
years after the last violation or three years after discovery of
the violation should be interpreted as a statute of repose that
could not be equitably tolled. 29 U.S.C. § 1113; see Radford
, 151 F.3d at 400; see also Underwood v. Wilson , 151
F.3d 292, 295 (5th Cir. 1998) (holding that because a provision
requiring that potential plaintiffs exhaust administrative
remedies before bringing § 1983 civil rights suits did not use "sweeping
and direct" language limiting federal jurisdiction, the
provision was not a jurisdictional bar). Section 2244(d)(1) does
not prohibit the courts from entertaining actions after the
statutory limit has passed; instead, it merely sets forth the
relevant statute of limitations. Therefore, the statutory
language of § 2244(d)(1) indicates that Congress did not intend
the limitations period to divest federal jurisdiction.
This interpretation of § 2244(d)(1) is
consistent with a plain reading of AEDPA's placement within the
federal habeas statute. When Congress amended the habeas corpus
provisions by enacting AEDPA, it took care to separate
jurisdiction provisions from this limitations-period provision.
The explicit grant of jurisdiction to the district courts
relating to the habeas writ is contained in 28 U.S.C. § 2241.
Congress chose to insert the AEDPA limitation amendment into §
2244, which concerns the finality of determinations and contains
provisions relating to non-jurisdictional limitations, such as
restraints on duplicative and frivolous litigation. This plain
reading of the statute as a whole implies that Congress did not
intend by its choice of language and placement to limit federal
jurisdiction through adoption of a one-year limitations period
for federal habeas claims.
AEDPA's statutory language and construction
clearly evinces a congressional intent to impose a one-year
statute of limitations for the filing of federal habeas claims
by state prisoners. We hold, therefore, that the one- year
period of limitations in § 2244(d)(1) of AEDPA is to be
construed as a statute of limitations, and not a jurisdictional
bar. As such, in rare and exceptional circumstances, it can be
equitably tolled. See Conaway v. Control Data Corp. , 955
F.2d 358, 361-62 (5th Cir. 1992) (finding that because a
limitations period is not a jurisdictional requirement, "the
limitation statute is subject to estoppel and equitable tolling")
(citing Zipes , 455 U.S. at 393
); see also Calderon , 128 F.3d at 1289 ("[AEDPA's] one-year
timing provision is a statute of limitations subject to
equitable tolling, not a jurisdictional bar.").
We are persuaded that reasonable juries might
differ with regard to equitably tolling the statute of
limitations based on the extraordinary circumstances present in
this case. Davis has therefore made a credible showing that the
district court erred in dismissing his federal habeas petition
as untimely. Following Robison and Murphy , we can
now consider whether Davis has made a substantial showing of the
denial of a constitutional right with respect to his underlying
state court conviction. See Robison , 151 F.3d at 263;
Murphy , 110 F.3d at 11.
C. Ineffective Assistance of Counsel
Davis also claims that his trial counsel's
performance denied him the effective assistance of counsel
guaranteed by the Sixth Amendment. Davis asserts that his
counsel rendered ineffective assistance by--first, failing to
object when the prosecutor committed jurors to disregarding
Davis's youth as a potential mitigating factor in deciding
Davis's punishment; second, failing to object when the
prosecutor equated the "intentional" standard used in the guilt-innocence
phase of the trial with the "deliberate" standard used in the
punishment phase; and third, failing to introduce certain oral
testimony during the punishment phase of the trial.
To prevail on his ineffective assistance of
counsel claims, Davis must demonstrate that his attorney's
performance was deficient, and that the deficiency prejudiced
his defense. See Strickland v. Washington , 466 U.S. 668,
687
(1984). An attorney's performance is deficient only when the
representation falls below an objective standard of
reasonableness. See id. at 687-88. Our review of the
performance of Davis's attorney must be "highly deferential,"
and we must make every attempt to "eliminate the distorting
effects of hindsight." Id. at 689. We must also maintain
a "strong presumption that . . . the challenged action might be
considered sound trial strategy." Id. (internal quotation
marks omitted).
To prove that his attorney's conduct
prejudiced his defense, Davis "must show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Id. at 694. Davis must therefore show that, absent his
counsel's deficiencies, there is a reasonable probability that
the jury would not have sentenced him to death. See id.
at 695. A reasonable probability is a probability "sufficient to
undermine confidence in the outcome." Id. at 694.
The Texas Court of Criminal Appeals, in
Davis's state habeas proceeding, has already considered the
merits of and denied relief on each of Davis's Sixth Amendment
claims. See Ex parte Davis , 866 S.W.2d 234 (Tex. Crim.
App. 1993). We have previously found that an explicit denial of
relief on the merits by the Texas Court of Criminal Appeals is
an "adjudication on the merits" entitled to deference under
AEDPA. 28 U.S.C. § 2254(d); see Jackson v. Johnson , 150
F.3d 520, 523-24 (5th Cir. 1998).
We have determined that both prongs of the
Strickland test involve mixed questions of law and fact.
See Nobles v. Johnson , 127 F.3d 409, 418 (5th Cir. 1997),
cert. denied , 118 S. Ct. 1845 (1998). Under the AEDPA
deference scheme, a federal court will not disturb a state
court's application of law to facts unless the state court's
conclusions involved an "unreasonable application" of clearly
established federal law as determined by the Supreme Court. 28
U.S.C. § 2254(d)(1); see Corwin v. Johnson , 150 F.3d
467, 471 (5th Cir. 1998); Nobles , 127 F.3d at 418. An
application of federal law is unreasonable when "`reasonable
jurists considering the question would be of one view that the
state court ruling was incorrect.'" Corwin , 150 F.3d at
471-72 (quoting Drinkard , 97 F.3d at 769). In addition,
any state-court factual determinations must be presumed correct
unless rebutted by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1); Jackson , 150 F.3d at 524.
With this standard in mind, we now consider
Davis's arguments.
1. Youth as a mitigating factor
Davis's trial attorney did not object when
the prosecutor instructed the jury on two occasions that Davis's
youth could not be considered to be a mitigating factor in the
punishment determination. First, during voir dire, Davis's
counsel did not object to the prosecutor obtaining commitments
from each eventual juror that he or she would not consider
Davis's "youthful appearance and age," and commitments from one-half
of the jurors not to consider any evidence of youth at all
during punishment deliberations. Second, Davis's attorney also
failed to object during the prosecutor's summation during the
punishment phase of the trial, when the prosecutor reminded each
juror of his or her commitment not to consider youth in
selecting a punishment.
6
Davis argues that these failures constituted ineffective
assistance of counsel in violation of the Sixth Amendment.
The Texas Court of Criminal Appeals held that
this conduct by Davis's attorney did not prejudice Davis's
defense. See Ex parte Davis , 866 S.W.2d at 239-40. The
court noted that youth is only relevant as a mitigating factor
to the second special issue, whether Davis would be dangerous in
the future, and that a jury may find youth mitigating within
that context only if it could find that a defendant's "violent
conduct is a product of his youth, [and that] he may be expected
to outgrow it." Id. at 240 (citing Johnson v. Texas
, 509 U.S. 350, 368
(1993)). The state court found that the wealth of evidence
presented during the punishment phase of the trial concerning
Davis's extensive criminal past foreclosed any reasonable
probability that the jury would have found Davis capable of
reforming his conduct as he matured.
7 See id. at 239-40. Because "no other mitigating aspect of
youth need have been considered," the court found that Davis's
defense was not prejudiced and he therefore was not deprived of
effective assistance of counsel under the Sixth Amendment. Id.
at 240. We cannot say that this state-court conclusion
involved an unreasonable application of the Strickland
test.
The Supreme Court, in Johnson v. Texas
, 509 U.S. 350, 368 (1993), articulated that "[t]he relevance of
youth as a mitigating factor derives from the fact that the
signature qualities of youth are transient; as individuals
mature, the impetuousness and recklessness that dominate in
younger years may subside." Thus, the state court did not err in
determining that the relevant question under Strickland
is whether the jury would have decided not to impose the death
penalty after considering whether Davis's crime was a product of
youthful immaturity.
The prosecutor legitimately presented detailed evidence
concerning Davis's extensive criminal past during the punishment
phase of the trial that could have reasonably persuaded jurors
that Davis's crime was not a product of his youth. Based on this
evidence, we cannot say that the state court's determination
that Davis's defense was not prejudiced by his attorney's
failure to object to the prosecutor's statements was
unreasonable. This conclusion was not "so clearly incorrect that
it would not be debatable among reasonable jurists." Drinkard
, 97 F.3d at 769; see Brock v. McCotter , 781 F.2d
1152, 1158 (5th Cir. 1986) (finding no Sixth Amendment violation
after prosecutor improperly told juror that youth could not be
considered a mitigating factor, as "where no reasonable person
would view a particular fact as mitigating it may properly be
excluded as irrelevant"). Therefore, we decline to issue Davis a
COA on this ground.2. Intentional versus deliberate conduct
Davis next claims that because his counsel
inadequately maintained the distinction between an intentional
and a deliberate killing, he was denied effective assistance of
counsel under the Sixth Amendment. The prosecutor told eight
eventual jurors that "deliberate" meant nothing more than
purposeful, and during his punishment-phase summation, he told
the jurors that because they had found Davis's killing to be
intentional in the guilt- innocence phase of the trial, they had
already decided that the killing was deliberate. Davis's
attorney failed to object to these prosecutorial statements.
Davis also claims that his attorney did not distinguish between
the two terms during his cross-examination of Davis during the
punishment phase of the trial and that he confused the terms in
his final summation.
The Texas Court of Criminal Appeals found
that the failure of Davis's attorney to distinguish between "intentional"
and "deliberate" was not deficient under the first Strickland
prong. See Ex parte Davis , 866 S.W.2d at 241. The
state court found that at the time of Davis's trial in 1978,
Texas courts had not yet explicitly articulated a distinction
between the two terms. See id. at 240-41. Therefore, the
failure of Davis's attorney to distinguish between them was
objectively reasonable and could not constitute constitutionally
defective assistance of counsel. See id. at 241. We find
that this state-court conclusion is a reasonable application of
Strickland .
It was not until 1981, when the Texas Court
of Criminal Appeals decided Heckert v. State , 612 S.W.2d
549 (Tex. Crim. App. 1981), that Texas law clearly distinguished
"deliberate" from "intentional" conduct.
8
Before that time, even the Texas Supreme Court used the terms
interchangeably. See Blansett v. State , 556 S.W.2d 322,
327 n.6 (Tex. Crim. App. 1977); see also Morin v. State ,
682 S.W.2d 265, 271 (Tex. Crim. App. 1983) (Clinton, J.,
dissenting) (noting that before Heckert , the terms were
not precisely distinguished). Given the lack of clarity between
the two terms at the time of Davis's trial, we cannot say that
the state court was unreasonable in holding that Davis's
attorney was not deficient under Strickland . See
Williams v. Scott , 35 F.3d 159, 164 (5th Cir. 1994) (finding
that because "no definite distinction between deliberately and
intentionally had been authoritatively expressed" before
defendant's 1981 trial, defendant's counsel was not deficient
for failing to object to statements equating the two terms);
cf. Motley v. Collins , 18 F.3d 1223, 1227 (5th Cir. 1994) (finding
no Strickland violation when defendant's attorney failed
to object during voir dire to prosecutor's statements equating
intentional and deliberate where the defendant "has not shown
how a more favorable definition of `deliberately' would have
caused at least one juror to return a negative answer to the
first special issue") (footnote omitted); Landry v. Lynaugh
, 844 F.2d 1117, 1120 (5th Cir. 1988) (finding no
Strickland prejudice when attorney did not object to
prosecutor's voir dire statements equating intentional and
deliberate). Davis's request for a COA on this issue is
therefore denied.
3. Failure to introduce oral testimony
Lastly, Davis complains that his trial
counsel was ineffective because he did not attempt to introduce
certain oral testimony during the punishment phase of the trial.
During the guilt-innocence portion of the trial, Davis's
attorney attempted to introduce the testimony of Detective John
Deloney, the detective to whom Davis orally confessed the day
before Davis made a written statement.
The testimony Davis's attorney attempted to
elicit related to Davis's state of mind at the time of the
shooting. Specifically, Deloney would have testified that Davis
told him he thought Lang, the victim, was coming after him to
take the gun, and that Davis had remarked, "I had to shoot the
man. He was going to take the gun away from me." These
assertions were not in Davis's written confession. The trial
judge excluded the testimony as irrelevant to the issue of guilt
or innocence, and Davis's counsel did not attempt to introduce
the testimony during the punishment phase of the trial.
Davis asserts that Deloney's testimony was
relevant to the first capital sentencing issue of deliberateness.
He contends that the testimony evidences a lack of premeditation
and planning concerning the killing, and therefore the jury
should have been able to consider the testimony and credibility
of the detective. The failure of his attorney to introduce the
testimony, Davis argues, amounted to ineffective assistance of
counsel in violation of the Sixth Amendment.
The Texas Court of Criminal Appeals disagreed,
finding that Davis had not overcome the Strickland
presumption that the decision not to call Deloney was part of
his attorney's trial strategy. See Ex parte Davis , 866
S.W.2d at 242. The state court noted that Davis's attorney had
already introduced testimony similar to Deloney's proposed
testimony during both the guilt and punishment phases of Davis's
trial. See id. The court found that the attorney's
decision not to elicit Deloney's testimony during the punishment
phase was consistent with his apparent trial strategy of having
Davis "acknowledge all guilt as a predicate to rehabilitation"
in an effort to persuade the jury that Davis would not be
dangerous in the future. Id. The Court of Criminal
Appeals then denied Davis relief because he did not overcome the
presumption, explicit in Strickland , that his attorney
"`made all significant decisions in the exercise of reasonable
professional judgment.'" Id. (quoting Strickland ,
466 U.S. at 690 ).
We find the state court's conclusion that
Davis was not denied effective assistance of counsel because of
his attorney's failure to introduce Deloney's testimony to be a
reasonable application of Strickland . The Court of
Criminal Appeals stated that Davis's counsel "was clearly
attempting to paint his client as a penitent, willing to take
responsibility for his offense, and therefore capable of
rehabilitation." Id. at 239.
Deloney's testimony implied that after the
killing, Davis thought the death was the victim's fault--he
stated that he "had to shoot [Lang]" because "[h]e was going to
take the gun away from me." The state court did not unreasonably
apply Strickland in indulging a strong presumption that
Davis's attorney's failure to introduce Deloney's statement
therefore "might be considered sound trial strategy."
Strickland , 466 U.S. at 689
(internal quotation marks omitted); see also Duff-Smith v.
Collins , 973 F.2d 1175, 1183 (5th Cir. 1992) (finding that
decision not to offer potentially damaging testimony was
protected as trial strategy). Because Davis has not attempted to
rebut this presumption, after applying AEDPA's deferential
standard of review we cannot say that the state court erred in
denying Davis's requested relief, and we decline to issue a COA
on this issue. Cf. Teague v. Scott , 60 F.3d 1167, 1172
(5th Cir. 1995) ("A decision regarding trial tactics cannot be
the basis for a claim of ineffective assistance of counsel
unless counsel's tactics are shown to be so ill chosen that it
permeates the entire trial with an obvious unfairness.") (internal
quotation marks omitted).
III. CONCLUSION
For the foregoing reasons, we DENY Davis's
request for a certificate of appealability and VACATE our grant
of a stay of his execution.
Issue No. 1: Do you find from the evidence
beyond a reasonable doubt that the conduct of the defendant,
William Prince Davis, that caused the death of the deceased was
committed deliberately and with the reasonable expectation that
the death of the deceased or another would result?
Issue No. 2: Do you find from the evidence
beyond a reasonable doubt that there is a probability that the
defendant, William Prince Davis, would commit criminal acts of
violence that would constitute a continuing threat to society?
Davis claims that the district court did not notify appointed
counsel of his appointment until February 9, 1998. This lack of
notice, Davis argues, justifies equitably tolling the applicable
limitations period in this case to allow his habeas petition to
proceed. Because we assume without deciding, infra, that the
circumstances of this case justify equitably tolling the one-year
statute of limitations, it is not necessary for this court to
remand for factual findings concerning when Davis's attorney
received notice of his appointment, and, more generally, whether
equitable tolling would be warranted.
Because Davis filed his § 2254 petition in May 1998, the COA
requirement of AEDPA applies to his case. See Green v.
Johnson , 116 F.3d 1115, 1119-20 (5th Cir. 1997).
The addition of a period of limitations for federal habeas
claims altered the habeas landscape significantly; before AEDPA
there was no defined time limit on bringing § 2254 habeas claims.
See Lonchar v. Thomas ,
517 U.S. 314, 327
(1996); Brown v. Angelone , 150 F.3d 370, 371- 72 (4th
Cir. 1998).
Although Flores arose in the context of a § 2255 habeas
claim, and not a § 2254 petition, as is the case here, we noted
in that opinion that the April 24, 1996 finality date applied to
both sections. See Flores , 135 F.3d at 1003 n.7.
You promised me on voir dire that the age of
the defendant was irrelevant, that the youthful appearance of a
defendant was irrelevant. You told me that you could answer the
questions based upon the evidence and not merely your personal
desire. . . . My purpose in this argument is to hold you to that
promise.
Specifically, the Court of Criminal Appeals recounted that:
the punishment phase of trial revealed that
by the time he was ten years old [Davis] was skipping school and
stealing bicycles. At twelve he was sent to a detention home for
boys for a year, and before he was fifteen he returned there
twice. At fifteen [Davis] landed in the reformatory at
Gatesville for eighteen months. At seventeen he was convicted of
three instances of aggravated robbery and one instance of
burglary of a habitation, and was assessed four concurrent six
year sentences. In one of the aggravated robberies [Davis] used
a pistol, and when police tried to apprehend him, he took a
hostage. In another aggravated robbery he wielded a butcher
knife. At the time of his arrest for the instant offense [Davis]
confessed that between the time of his parole and his arrest he
committed at least five robberies and thirteen burglaries. Only
five days after killing Lang, [Davis] returned to burglarize the
Red Wing Ice Cream Company. [Davis] estimated that from the age
of twelve up to the day of trial he had spent only a year and a
half outside institutional walls. He admitted that in this brief
time he committed over twenty violent or potentially violent
felony offenses.
The Heckert court found that the two standards were not
identical. See Heckert , 612 S.W.2d at 552-53. Later
Texas cases have made clear that "deliberate" is a higher
standard than "intentional," only encompassing conduct that
results from a "determination on the part of an actor to kill."
Cannon v. State , 691 S.W.2d 664, 677 (Tex. Crim. App.
1985).
