Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Davenport v. Chapdelaine

United States District Court, D. Colorado

April 12, 2017

WILLIAM DAVENPORT, Applicant,
v.
JOHN CHAPDELAINE and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

          ORDER TO DISMISS IN PART AND FOR ANSWER

          PHILIP A. BRIMMER United States District Judge.

         Applicant William Davenport is in the custody of the Colorado Department of Corrections (“CDOC”) at the Correctional Facility in Sterling, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 1] challenging the validity of a conviction and sentence imposed in the District Court for the City and County of Denver, Colorado, Case No. 05CR1165. Mr. Davenport has paid the $5.00 filing fee.

         On June 16, 2016 and July 5, 2016, Magistrate Judge Gordon P. Gallagher directed Respondents to file a pre-answer response addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). Docket Nos. 6 and 7. Respondents submitted a Pre-Answer Response on July 27, 2016. Docket No. 1). Applicant filed a Reply on September 9, 2016, Docket No. 18, after obtaining an extension of time.

         The Court construes Mr. Davenport's filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the Application in part.

         I. BACKGROUND AND STATE COURT PROCEEDINGS

         After Mr. Davenport's first trial ended in a hung jury, he was convicted after a second trial of one count of first-degree murder (after deliberation), four counts of attempted first-degree murder (after deliberation), and one count of attempted first-degree murder (extreme indifference). Docket No. 13-1 at 5-8; No. 13-9. Applicant was sentenced on March 21, 2007 to a term of life without parole, plus five consecutive 48-year terms. Id.

         Applicant's convictions were affirmed on direct appeal in People v. William Lee Davenport, III (Davenport I), No. 07CA878 (Colo.App. June 24, 2010) (unpublished). Docket No. 13-9. The Colorado Supreme Court denied Applicant's petition for certiorari review on January 11, 2011. Docket No. 13-7.

         Mr. Davenport's motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(c), filed on June 1, 2011, and the supplement filed by court-appointed counsel on August 3, 2012 were denied by the state district court on February 13, 2013. Docket No. 13-1 at 16-19; No. 13-6. The Colorado Court of Appeals affirmed in People v. William Lee Davenport, III (Davenport II), No. 13CA607 (Colo.App. July 6, 2015) (unpublished). Docket No. 13-4. Applicant's petition for certiorari review was denied by the Colorado Supreme Court on January 19, 2016. Docket No. 13-2.

         On May 26, 2016, Mr. Davenport filed his federal application under 28 U.S.C. § 2254. The Court construes the pro se Application liberally to assert the following claims:

1. Applicant was denied his constitutional right to a fair trial because the trial court admitted DNA evidence that was inadmissible under Colo. R. Evid. (“CRE”) 403 and 702. Docket No. 1 at 5-6.
2. Applicant was denied his constitutional right to a fair trial because the court admitted irrelevant evidence of statements made by two African-American males in the presence of a bartender as res gestae. Id. at 7-9.
3. Applicant was denied a fair trial, in violation of due process, because the trial court refused to give the jury: (a) his tendered “identity instruction, ” which would have instructed the jury against convicting unless it found that Applicant was the person who committed the crimes beyond a reasonable doubt, id., at 9-10; and, (b) his tendered “missing witness” instruction, which would have instructed the jury that it should assume that the testimony of Applicant's brother would have been favorable to the defense. Id. at 10-11.
4. Applicant was denied his constitutional right to due process when a prosecution witness identified Applicant for the first time at trial in circumstances rendering that identification unduly suggestive. Id. at 12.
5. Applicant was denied his constitutional right to due process when the state post-conviction court rejected his ineffective-assistance-of-counsel (IAC) claim (based on the failure to call an expert witness to undermine the reliability of eyewitness identification) without conducing an evidentiary hearing. Id. at 13-14.

         In the Pre-Answer Response, Respondents concede that the Application is timely under the one-year limitation period set forth in 28 U.S.C. § 2244(d). Docket No. 13 at 6. Respondents further concede that Applicant exhausted state court remedies for claims 3(a) and 4. Id. at 22, 28. Respondents argue, however, that Applicant has committed an anticipatory procedural default of claims 1 and 2; that claim 3(b) is unexhausted, rendering the entire Application a mixed petition; and that, although claim 5 does not state a cognizable constitutional claim, Applicant has nonetheless exhausted an IAC claim based on defense counsel's decision not to call an expert to undermine the reliability of eye witness identification. Id. at 14-22, 23-29.

         II. EXHAUSTION OF STATE COURT REMEDIES AND ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.