Tevis v. Sims, No. 5:2017cv00118 - Document 25 (E.D. Ky. 2018)

Court Description: MEMORANDUM OPINION & ORDER: (1) 22 REPORT AND RECOMMENDATIONS is ACCEPTED and ADOPTED as the Court's own; (2) Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE; (3) No certificate of appealability shall issue from this Court. Signed by Judge Joseph M. Hood on 7/13/2018.(JJ)cc: COR, pro se petitioner via USP Modified text on 7/13/2018 (JJ).
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Tevis v. Sims Doc. 25 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON ) ) ) ) ) ) ) ) ) ) JOSHUA LEE TEVIS, Petitioner, v. RAVONNE SIMS, Warden Respondent. This matter is Case No. 5:17-CV-118-JMH-REW MEMORANDUM OPINION & ORDER ****** before the Court upon the Report and Recommendation of former United States Magistrate Judge Robert E. Wier [DE 22] and Petitioner’s objections [DE 23]. This action was referred to the magistrate judge for the purpose of reviewing the merit of Joshua Tevis’s Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Petition be denied. [DE 1]. Judge Wier recommended that Tevis’s [DE 22}. Tevis filed objections. [DE 23]. Having considered the matter de novo, the Court adopts Judge Wier’s recommendation as its own. I. Background A Fayette Circuit Court jury found Joshua Tevis guilty of reckless homicide and being a persistent felony offender in the first degree after a trial in December 2014. commonwealth, No. 2015-CA-213-MR, 2016 App. Apr. 1, 2016). See Tevis v. WL 1273040, at *1 (Ky. Ct. Tevis received a fifteen-year sentence and Dockets.Justia.com after exhausting appeals in state court, he filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. [DE 1]. Warden Ravonne Sims responded [DE 16] and Tevis replied [DE 18]. Former Magistrate Judge (and current District Judge) Robert E. Wier issued a report and recommendation in which he recommended this court dismiss the petitioner with prejudice and deny a certificate of appealability. [DE 22]. Tevis filed timely objections [DE 23] making this matter ripe for review. The Kentucky Court of Appeals provided a succinct version of the facts in this case: At approximately 2:30 a.m. on September 22, 2013, Tevis existed the Diva’s Gentleman’s Club in Lexington and walked to his vehicle. At the same time, Johntel Crocker and others were attempting to separate two women who were fighting near Tevis’s vehicle. As Tevis approached his vehicle, he observed Crocker step on the rear bumper of his vehicle. Tevis took exception to this and exchanged words with Crocker as they crossed paths. Crocker paused, turned, and shoved Tevis against a wall. Almost immediately, Tevis pulled a gun and shot Crocker in the chest. Crocker ran, but collapsed moments later. Tevis fled the scene on foot, leaving his vehicle behind. When police arrived moments later, they found Crocker unresponsive. Officers and paramedics rendered first-aid; however, Crocker was pronounced dead upon arrival at the hospital. During their investigation, police obtained the surveillance video of the Diva’s parking lot and eventually determined that Tevis was the individual who shot and killed Crocker. Soon afterward, Tevis turned himself in to the Lexington Police Department, and authorities charged him with Crocker’s murder. On November 25, 2013, a Fayette County Grand Jury indicted Tevis for murder, being a convicted felon in possession of a handgun, and being a PFO in the first degree. The case proceeded to trial on December 9, 2014. At trial, Tevis’s theory of the case was that he shot Crocker in self-defense. At the conclusion of a three-day trial, the jury returned a verdict of not guilty on the charge of murder. However, the jury convicted Tevis of reckless homicide, and found him to be a persistent felony offender in the first degree. The trial court imposed the recommended sentence of five years for the reckless homicide, enhanced to fifteen years by virtue of Tevis’s conviction as a persistent felony offender. Tevis, 2016 WL 1273040, at *1 (footnote omitted). In his habeas petition, Tevis argues (1) that the jury viewed excluded evidence, referenced Tevis’s and (2) decision the to prosecutor remain inappropriately silent. Both errors, according to Tevis, require this Court grant a Writ of Habeas Corpus. II. Judge Wier disagreed, and so does this Court. Standard of Review Under Federal Rule of Civil Procedure 72, a party may object to and seek recommendation. review of a magistrate judge’s See Fed. R. Civ. P. 72(b)(2). report and “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(c). stated with specificity. Any objections must be Thomas v. Arn, 474 U.S. 140, 151 (1985). “An ‘objection’ that does nothing more than state a disagreement with a magistrate’s suggested resolution, or simply summarizes what has been presented before, is not an ‘objection’ as that term is used in this context.” VanDiver v. Martin, 304 F.Supp.2d 934, 937–38 (E.D. Mich. 2004). III. Analysis The Antiterrorism and Effective Death Penalty Act (AEDPA) provides: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that 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)(1)–(2). Tevis does not object to the magistrate judge’s extended and sound discussion of the AEDPA standard. [DE 22, pp. 3–7]. the Court will not discuss it further here. Thus, The magistrate judge more than adequately laid out the standard, and this Court adopts it as its own. Tevis makes two arguments why he is entitled to habeas relief under AEDPA. First, he argues that he deserves relief because the jury might have viewed certain portions of a video that had been excluded. [DE 1, pp. 5–7]. As the magistrate judge found the “video of the shooting was at the core of the proof.” [DE 22, p. 7]. Of the more than hour- long video, only about twelve minutes were to be admitted under an agreement between the parties. [Id.]. video went back to the jury. But a DVD with the entire The Kentucky Court of Appeals determined that no error occurred because the court instructed the jury to view only the twelve-minute relevant portion of the video and the “jury is presumed to have followed this admonition.” [DE 22, p. 9]. The state court of appeals wrote: During a bench conference, the court informed both parties that while the jury was in deliberations after the guilt phase, it requested the time stamp for the beginning of the relevant portion of the surveillance video. This strongly suggests that the jury followed the court’s admonishment and only viewed the surveillance video’s relevant portion. [DE 22, p. 9 (quoting Kentucky Court of Appeals opinion, Tevis, 2016 WL 1273040, at *2–3)]. Tevis takes aim at this analysis, but he misses the mark: How could the jury find the Petitioner guilty without viewing the relevant portion of the video footage? Furthermore, how could they have been presumed to follow the admonition given by the Honorable Judge Goodwine ‘prior to deliberations’? The jury decided to find the defendant guilty of the charges with the excluded footage in the room during and then afterward ask about the time stamp for the relevant portion. [DE 23, p. 4]. As the magistrate judge pointed out, the Supreme Court has held that a “jury is presumed to follow its instructions.” v. Angelone, 120 S.Ct. 727, 733 (2000). Tevis Weeks argues that presumption does not apply here: “How can such a presumption be made in this case that the jury followed such an admonition entering the guilt phase but then after finding the Petitioner guilty asked for the relevant time stamp?” [DE 23, p. 5]. Tevis, it seems, does not grasp what the state appeals court said in its opinion and what happened at trial. The jurors did not first find Tevis guilty and then ask for the timestamp. They asked for the time stamp in the jury room before rendering a verdict. And as the magistrate found, the Supreme Court has ruled that juries presumably follow admonitions, and the state court’s decision was not contrary to or an unreasonable application of Supreme Court precedent. Weeks, 120 S.Ct. at 733. The magistrate judge also found that even if the jury watched the video, the video was not prejudicial: “even viewed the excluded video portions (or, assuming the jury more likely, fast- forwarded through them), the jury would have merely seen (mostly mundane) footage Tevis (or implicating him in crime or prejudicial conduct) in any way.” [DE 22, p. 12]. of a parking lot, not involving Thus, Kentucky’s “treatment of this issue was reasonably consistent with these principles and this case law.” [Id., p. 15]. Judge Wier’s analysis is extensive. Tevis does not make any objections regarding Judge Wier’s discussion about the non-prejudicial nature of the video tape—his only objection centers on the jury asking for a time stamp, as discussed above. Thus, there is no other specific objection for this court to consider. Thomas, 474 U.S. at 161. So this Court accepts and adopts the magistrate’s report and recommendation as its own. Second, Tevis argues that the prosecutor’s statements to the jury that no witness testified that Tevis was in fear for his life violated his Fifth Amendment rights. This is so, Tevis argues, because the prosecutor’s statements implicitly violated his right to be free from self-incrimination by the “prosecutor’s repeated indirect references to his failures to take the stand.” [DE 1, p. 7]. In particular, Tevis argues the prosecutor violated his rights when he stated that “there has been no evidence from any witness that you heard that the defendant feared for his life.” [Id.]. Tevis argues that he—and he alone—could have testified to whether he feared for his life. Thus, according to Tevis, the prosecutor’s statement necessarily implicated Tevis’s Fifth Amendment right to silence. The magistrate judge conducted a thorough and detailed review of Tevis’s arguments. And this Court finds itself in agreement with the magistrate judge: the state court’s analysis on this issue was not contrary to or an unreasonable application of federal law as determined by the Supreme Court. 28 U.S.C. § 2254(d). As the state court found, “the Commonwealth’s statements merely alluded to the fact that the jury heard no testimony from any witness that would support Tevis’s claim that he feared for his life.” [DE 22, p. 17 (citing Commonwealth v. Tevis, 2016 WL 1273040 at *1–2 (Ky. Ct. App. 2016). In his original petition, Tevis cited Griffin v. California for the proposition that the Constitution “prohibits comment on the defendant’s silence.” 85 S.Ct. 1229, 1232 n.5 (1965). And as the magistrate found, this is true, but it is not what occurred in Tevis’s case. Two problems plague Tevis’s argument: (1) the prosecution’s comments applied to many witnesses who could have testified about whether Tevis talked about his fear, or Tevis’s demeanor or body language [DE 22, p. 18 n.11], and (2) “the Supreme Court has not held that such comments invariably violate Griffin.” [Id. (quoting Webb v. Mitchell, 586 F.3d 383, 397 (6th Cir. 2009)]. Indeed, in Webb, as the magistrate judge noted, the Sixth Circuit rejected an argument from a petitioner where a prosecutor referred to evidence as “uncontradicted” even though “only Webb could have contradicted” it. Id. at 397. As the magistrate judge determined, “there the is Court of the United prosecutor indirectly commenting on an accused’s silence in the manner the States” that determined by a Supreme no ‘clearly established federal law as Commonwealth did 18]. here violated the Constitution.” [DE 22, p. Because this is the standard AEDPA requires, Tevis has not met his burden for habeas relief. In his objections, Tevis does not argue to the contrary. Instead, he argues merely that new law is needed for future similar cases. [DE 23, p. 2]. AEDPA. That is not how habeas relief works under Tevis’s only other argument is the magistrate judge improperly applied the Sixth Circuit’s “generally applicable test” in determining whether the prosecutor’s statements violated the Fifth Amendment. magistrate judge This argument conducted the is beside generally this point. applicable The analysis purely to demonstrate that even under Sixth Circuit law, Tevis’s arguments failed. But as the magistrate judge noted, the Sixth Circuit’s test does “not constitute clearly established federal law as determined by the Supreme Court,” which is what AEDPA requires. [DE 22, p. 19]. The magistrate judge did not have to analyze the claim under Sixth Circuit precedent at all. The Supreme the Court Constitution. has not held that these Webb, 586 F.3d at 397. comments violate Thus, the state court’s determination was not contrary to or an unreasonable application of federal law as decided by the Supreme Court, and Tevis is not entitled to relief. The magistrate judge also recommended denying a certificate of appealability. [DE 22, p. 22]. A certificate may issue when the petitioner has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The petitioner must demonstrate that “reasonable jurists would find the district court’s assessment wrong.” of the constitutional claims debatable Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). or The magistrate judge found that Tevis failed to make a substantial showing of the denial of a constitutional right. [DE 22, p. 22]. Tevis makes not specific objection on this issues. But as this Court has already made clear in this Order, it agrees with the magistrate judge that Tevis has not made the showing required for a certificate of appealability. IV. Conclusion Accordingly, for the reasons stated herein, IT IS ORDERED as follows: (1) that the Report and Recommendation of the magistrate judge [DE 22] is ACCEPTED and ADOPTED as the Court’s own; (2) that Tevis’s Petition for Writ of Habeas Corpus [DE 1] is DISMISSED WITH PREJUDICE; (3) that no certificate of appealability shall issue from this Court. This the 13th day of July, 2018.