Release Date:  April 21, 2017
Contact:  Michael Rushford
(916) 446-0345

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Oral argument in Davila v. Davis set for Monday, April 24

The U. S. Supreme Court will hold oral argument Monday to hear the appeal of a Texas gang member convicted of murder and sentenced to death. Erick Davila argues that his conviction of capital murder should be overturned because his state-appointed habeas corpus attorney failed to claim that his state-appointed appeals attorney was incompetent for failing to argue that an instruction given to the sentencing jury was improper.

At issue in Davila v. Davis is whether earlier Supreme Court precedent allowing review of a defaulted claim of substantial error by a trial attorney should extend to claimed errors by a murderer’s appellate attorney, even when a federal court finds that the error claim is without merit.

The Sacramento-based Criminal Justice Legal Foundation has joined the case to encourage the Court not to allow review for this type of claim.

For death penalty cases there are five separate types of legal proceedings: 1) the trial to determine the defendant’s guilt of a class of murder eligible for a death sentence; 2) the sentencing hearing to determine if the convicted murderer should be sentenced to death or life in prison without the possibility of parole; 3) the direct appeal to determine if the trial was properly conducted and that evidence supports the verdict; 4) habeas corpus review in state court to consider facts outside the trial record; and 5) habeas corpus review in federal court to determine if a defendant’s federal constitutional rights were violated. Typically, the state habeas corpus review focuses on claims that the defendant’s trial attorney was incompetent or that material evidence was not disclosed to the defendant.

This case involves an April 6, 2008, shooting at a children’s birthday party that left a 48-year-old woman and her 5-year-old granddaughter dead. Three other children and one adult were wounded by the gunfire.

The party was being held during a warm evening on the front porch of a home in Fort Worth, Texas. As the children were eating cake and ice cream, one of the children saw a black car and a gun inside pointing toward them. She then saw the car stop in front of the neighboring house and a man open fire on the party. The man continued to fire into the group as the children and adults struggled to get inside. The little 5-year-old girl was hit multiple times and died at the scene along with her grandmother.

Police tracked suspect Erick Davila to an apartment complex. When he spotted the officers, he tried to escape, crashing into several cars and hitting a fence before fleeing on foot. When SWAT officers caught him, he was carrying a gun. Davila is a known gang member who had been released from prison the previous year for a home burglary conviction. Following his arrest, Davila told officers that he and a friend had been driving around in a black Mazda and decided to have a “shoot ’em up.” He said that, when they spotted the party, he decided to shoot the guys on the porch and was trying to get “the fat dude,” whom he said he recognized.

Davila was convicted of capital murder based on the circumstance that he murdered more than one person. At sentencing, the jury then heard evidence that Davila had attempted to escape from jail and seriously injured an officer. They also learned that, two days before the birthday party shootings, Davila had committed an armed robbery and another murder. In mitigation, the defense presented evidence of Davila’s troubled childhood. The jury recommended that he be sentenced to death in 2009.

Two years later, the Texas Court of Criminal Appeals (TCCA) affirmed his conviction and death sentence. He did not challenge the jury instruction on multiple murder in this appeal, which would have been the correct proceeding to make that claim. In 2013, the trial court denied Davila’s claims on habeas corpus and the TCCA affirmed the lower court’s holding. In 2014, Davila filed his federal habeas corpus petition in District Court, arguing that his previous state habeas corpus attorney was ineffective because he failed to argue that the direct appeal attorney was ineffective for not challenging the jury instruction. The District Court denied this and Davila’s other claims. Further, the court considered the claim anyway and found it to be without merit. In 2016, the Fifth Circuit Court of Appeals held that Davila’s claim against his direct appeal attorney was defaulted because it should and could have been raised at an earlier review.

Last fall, Davila asked the U. S. Supreme Court to hear his appeal of the Fifth Circuit’s decision, arguing that two of the court’s previous rulings supported review of his claim. He cited a 2012 ruling in Martinez v. Ryan, which announced that a defendant can use the habeas corpus process to claim that his habeas corpus attorney was ineffective because he did not attack the competence of his trial attorney. He also cited the 2013 ruling in Trevino v. Thaler which extended the Martinez ruling. Davila argues that these decisions clear the way for review of his claim attacking the competence of his earlier habeas corpus attorney because he failed to attack the competence of his direct appeal attorney for failing to challenge a jury instruction, even though a federal court held that claim meritless.

Remarkably, in January, the high court agreed to consider that claim.

In a scholarly amicus curiae (friend of the court) brief, Foundation Legal Director Kent Scheidegger argues that the extension of Martinez and Trevino, which were both based on the competence of trial counsel, to claims against lawyers representing murderers on direct appeal, would open the door to endless review of claimed errors that prior attorneys have considered not worth arguing. Absent a substantial claim of actual innocence, cases should not be reopened to consider such claims.

“Enough is enough. The time wasted reviewing this cold-blooded murderer’s groundless claim demonstrates exactly what’s wrong with the post-conviction review process,” said Scheidegger. “Beyond a certain point, further reviews should be reserved for substantial claims of actual innocence, and nearly all death-row inmates are clearly guilty,” he added.

CJLF Legal Director Kent S. Scheidegger is available for comment at (916) 446-0345.