NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 14 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JAMES DEMITRI DAVENPORT, No. 09-35219
Petitioner - Appellant, D.C. No. 6:07-cv-00095-AA
v.
MEMORANDUM*
BRIAN BELLEQUE, Superintendent,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted June 9, 2010
Portland, Oregon
Before: HALL, THOMPSON, and McKEOWN, Circuit Judges.
James Dimitri Davenport (“Davenport”) timely appeals the denial of a
habeas corpus petition challenging his state court conviction for the intentional
murder of Larry Volk. Pursuant to an agreement with the prosecution, Davenport
pled guilty to the murder charge, a second charge for intentional attempted murder
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of James Johnson was dismissed, and Davenport received a stipulated determinate
sentence of 25 years in state prison, to be followed by life-time supervised release.
Davenport waived his right to a direct appeal, choosing instead to allege four
instances of ineffective assistance of counsel in a state post-conviction relief
(“PCR”) petition. Davenport’s sole contention on appeal is that the district court
erred in rejecting one of those exhausted claims on its merits: that his trial attorney
failed adequately to investigate and advise him about possible defenses of extreme
emotional disturbance and justifiable self-defense.
The district court had jurisdiction pursuant to 28 U.S.C. § 2254. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm.
I.
The parties are familiar with the factual and procedural history of this case,
we will not recount it here except as necessary to explain our decision.
II.
We review de novo the denial of a federal habeas petition. Insyxiengmay v.
Morgan, 403 F.3d 657, 664 (9th Cir. 2005). Davenport carries the burden of
proving by a preponderance of the evidence that he is entitled to habeas relief.
Silva v. Woodford, 279 F.3d 825, 835 (9th Cir.), cert. denied, 537 U.S. 942 (2002).
As relevant here, under the Antiterrorism and Effective Death Penalty Act of
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1996 (“AEDPA”), federal habeas relief is available if the state court’s adjudication
of the merits of the habeas claim “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.” 28 U.S.C. § 2254(d)(1).
III.
The Supreme Court has held that Strickland v. Washington, 466 U.S. 668
(1984), is the “clearly established” federal law governing habeas claims of
ineffectiveness of counsel under AEDPA. Williams v. Taylor, 529 U.S. 362, 391
(2000). Under Strickland, to establish ineffective assistance under the Sixth
Amendment, a petitioner must demonstrate that counsel’s performance “fell below
an objective standard of reasonableness … under prevailing professional norms”
and that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” 466 U.S. at 694.
In assessing the reasonableness of counsel’s performance, the court must
judge “counsel’s challenged conduct on the facts of the particular case, viewed as
of the time of counsel’s conduct.” Id. at 690. The inquiry under Strickland is
highly deferential: “‘[E]very effort [must] be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time.’” Bell
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v. Cone, 535 U.S. 685, 698 (2002) (quoting Strickland, 466 U.S. at 689). In order
to satisfy Strickland’s prejudice prong in the context of the plea bargaining
process, the petitioner must show “that there is a reasonable probability that, but
for counsel’s errors,” he would not have pled guilty, but would have instead
insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
We have carefully reviewed the evidence in the PCR record, and conclude
that the district court did not err in denying habeas relief on Davenport’s
ineffective assistance claim based on its conclusion that the PCR court’s decision
was neither contrary to nor an unreasonable application of Strickland.
A.
In denying Davenport’s claim of ineffective assistance of counsel, the PCR
court specifically found that Davenport had not produced any evidence supporting
his claim that he “acted in justifiable self-defense when he shot Larry Volk in the
back of the head” as he and Volk were riding in a truck driven by Johnson on a trip
to a remote area of Linn County where Davenport had agreed help the two men
purchase methamphetamine. The PCR court further found that Davenport did not
produce any evidence tending to show that he was suffering from extreme
emotional disturbance when he shot Volk. At most, the PCR court found, the
evidence showed that Davenport was angry at Johnson for allegedly sexually
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assaulting his girlfriend, but that he was “in command of his senses and reasoning
ability at the time of the shooting and thereafter,” and was not “so upset that he
reasonably was unable to control himself when he shot Larry Volk.”
The district court concluded that the PCR court’s factual findings were
supported by the record, and Davenport does not directly contend that the PCR
court unreasonably determined the facts. See 28 U.S.C. § 2254(d)(2). Thus, the
PCR court’s findings are entitled to a presumption of correctness, which may be
overcome only by clear and convincing proof that they were in error. 28 U.S.C.
§ 2254(e)(1); see also Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004).
Davenport has not provided such proof. To the contrary, the PCR court’s findings
are supported by the evidence discussed in the PCR court’s order and bolstered by
additional evidence not specifically cited by the PCR court.
In addition to the specific factual findings made by the PCR court, the record
establishes that Davenport met with his trial counsel, Gerald Peterson, “probably
more than 20 times,” and it is clear that they discussed his theory of self-defense,
and his belief that Volk was reaching for a gun under the seat when he
precipitously shot Volk. But Peterson also pointed out several problems with such
a defense, including the fact that Davenport shot Volk in the back of the head.
Davenport’s own testimony in the PCR court proceedings strongly suggests such a
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defense was ruled out because it could have been presented only if he had taken the
stand in his own defense, which would have subjected him to effective
impeachment with his prior convictions for arson, thefts, and assaults. In addition,
Davenport admitted that Peterson expressed concern that the state might re-indict
him for aggravated murder, with the possibility of a death sentence, if he did not
agree to the plea bargain.
As to an affirmative defense of extreme emotional disturbance, Davenport
admitted that he and Peterson discussed his belief that Johnson had sexually
assaulted his girlfriend, his upset at seeing her bruises, and his angry response
when Johnson and Volk laughed at him when he confronted Johnson during the
drive. Davenport also admitted that Peterson arranged for him to be evaluated by
two mental health professionals while he was being held in county jail, and that he
believed the two experts reported their findings to Peterson.
As the PCR court specifically found, Davenport may have been upset and
angry at Johnson at the time of the shooting, and thereafter, but he was
nevertheless in command of his senses and reasoning ability, and was able to
control his actions and take purposeful steps to accomplish his immediate
objectives. In support of this finding, the PCR cited evidence of: Davenport’s
voluntary decision to accompany Johnson and Volk on the trip to eastern Linn
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County to purchase illegal drugs, which was the “number one priority” that day;
his decision to wait until they reached a remote area before confronting Johnson,
and later shooting Volk; his struggle with Johnson to retain possession of his gun;
his successful effort to commandeer Johnson’s truck; and his subsequent decision
to abandon the truck and set out on foot to find a nearby family reunion, which he
attended and then asked for a ride home. Moreover, Davenport’s own recounting
of his state of mind and conduct during and after the shooting strongly suggests
that he was not suffering any “extreme emotional disturbance” when he shot Volk.
On this record, it appears that Peterson adequately investigated and
discussed with his client possible defenses of justifiable self-defense and extreme
emotional disturbance, but ultimately made a reasonable, informed strategic
decision that it would not be advisable to pursue those defenses. Accordingly,
Peterson negotiated a plea agreement which resulted in the dismissal of the
attempted murder charge and a determinate 25-year prison sentence—rather than
an indeterminate life sentence or even a death sentence. The PCR court’s findings
regarding available defenses were well supported by evidence in the record, and its
decision that Peterson’s representation was not constitutionally deficient was
neither contrary to nor based on an unreasonable application of the first prong of
the Strickland test. Thus, the district court did not err in deferring to the state
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court’s findings on these issues, and concluding that “counsel’s advice to enter a
guilty plea [fell] well within the wide range of reasonable professional assistance.”
B.
Even if trial counsel failed to adequately advise him about justifiable self-
defense and extreme emotional disturbance, however, Davenport’s evidence does
not satisfy the prejudice prong of Strickland. See 466 U.S. at 694. Based on the
record of the PCR court proceedings, there is no reason to believe those defenses
would have been successful or that, had he gone to trial, he would have been able
to avoid a serious risk of suffering two convictions, resulting in an indeterminate
life sentence, and potentially even a death sentence. Id.
Davenport also failed to show that but for counsel’s inadequate advice, he
would not have pled guilty, and would have insisted on going to trial, as required
by Hill, 474 U.S. at 59. Contrary to his argument on appeal, Davenport never
clearly testified that had he been adequately advised regarding self-defense and
extreme emotional disturbance, he would not have pled guilty. In fact, his
deposition testimony suggests nothing more than that he now regrets pleading
guilty: “[I]f I would have took it to trial, I mean, there’s a chance I could have
came out with more time or there’s a chance I could have got it dropped.” In these
circumstances, Davenport has failed to establish that he suffered any prejudice
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from the alleged deficiencies in the representation he received from his trial
counsel, and the district court did not err in denying his claim for habeas relief.
IV.
For the foregoing reasons, the order of the district court denying
Davenport’s habeas petition is AFFIRMED.
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