United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1694
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Marcus Q. Davis, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
United States of America, *
*
Appellee. *
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Submitted: January 9, 2012
Filed: March 14, 2012
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Before WOLLMAN, LOKEN, and GRUENDER, Circuit Judges.
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WOLLMAN, Circuit Judge.
Marcus Davis was convicted of one count of malicious use of fire causing
personal injury and death, in violation of 18 U.S.C. § 844(i). He was sentenced to
360 months’ imprisonment, and his conviction and sentence were affirmed on direct
appeal. United States v. Davis, 534 F.3d 903 (8th Cir. 2008), cert. denied, 555 U.S.
1201 (2009). Davis sought habeas corpus relief under 28 U.S.C. § 2255, claiming
that he received ineffective assistance of counsel at trial. The district court1 denied
his petition. We affirm.
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
I.
The facts of this case are fully set forth in our opinion in Davis’s direct appeal.
See Davis, 534 F.3d at 906-11. Following are the facts relevant to the habeas appeal
now before us. On March 6, 2000, a fire started at 845 Cross Park Avenue, an
apartment building in Iowa City, Iowa. One resident of the building died as a result
of the fire and another suffered serious burns. Police determined that the fire had
been set intentionally, and they investigated the case for more than five years before
Davis and Stephen Edwards were indicted in September 2005.
The evidence presented at the joint trial was largely circumstantial, with the
exception of two incriminating statements, one by each defendant. The evidence
showed that the fire was the culmination of an ongoing altercation between Davis and
Jan Ballew, who lived in the apartment building and had repeatedly reported Davis
to the police because of the volume of his music. Davis was not a resident of the
burned apartment building, but his music was evidently audible to at least some of the
building’s residents. Joyce O’Neal testified that Davis had said to her, “I didn’t mean
for it—I didn’t mean for it to happen like this. I was only trying to scare the old lady
because every time our music—we would turn our music up, she would always call
the police on us.” Davis, 534 F.3d at 910. Betty Jo Thompson testified that Edwards
had said to her, “It wasn’t to hurt anybody, to murder anybody. It wasn’t to kill
anybody. It was to get someone to come out of the house.” Id.
These statements were used as part of a visual display during the prosecution’s
closing argument without objection from Davis’s counsel. As we recounted in
Davis’s direct appeal:
Both defendants filed a motion in limine to prevent the government from
using statements attributed to one defendant against the nondeclarant
codefendant. The district court stated that it “anticipates that the
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government will elicit testimony carefully to ensure that statements
made by one defendant do not reference the non-declarant co-
defendant.” The district court permitted defense counsel to object to the
admission of statements attributed to one of the defendants and allowed
defense counsel to make the strategic choice whether they wanted to
object at every opportunity or to object the first time a statement was
admitted in the course of each witness’s testimony. Defense counsel
chose to object once per witness and to have the limiting instruction
repeated at that time.
During the government’s rebuttal closing argument, the
prosecutor stated, “ladies and gentlemen, they even confessed to it.”
The prosecutor then displayed a demonstrative aid, which he referred to
as “Exhibit K,” even though it had not been admitted as a trial exhibit,
and had not been published to defense counsel as required by the local
rules. The aid consisted of a power point slide that showed side-by-side
statements attributed to each of the defendants.
Davis, 534 F.3d at 910-911. The statements displayed were Davis’s statement to
O’Neal and Edwards’s statement to Thompson. As the prosecutor finished his
argument he said, “The government has proven beyond a reasonable doubt that
Marcus Davis set a gasoline fire on the third floor of 845 Cross Park to scare the old
lady. And Stephen Edwards was right there helping him. ‘It wasn’t meant to kill
anybody.’ And look how similar their statements are.” Id. at 911.
Neither defendant objected to the prosecutor’s statements or Exhibit K at trial.
On direct appeal, Davis argued that his conviction should be reversed because the
prosecutor’s conduct during closing argument was improper and should have resulted
in a mistrial. Specifically, Davis argued that the use of Exhibit K violated Bruton v.
United States, 391 U.S. 123 (1968), in which the Supreme Court held that the
admission of a non-testifying defendant’s statement implicating a codefendant
violates the codefendant’s constitutional right to confront the witnesses against him,
even if there is a curative instruction. Id. at 135-36.
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In Davis’s direct appeal, we concluded that “although we do not condone the
manner in which the prosecutor utilized the previously undisclosed demonstrative
aid,” its use did not constitute a Bruton violation, the defendants were not deprived
of a fair trial, and the district court did not abuse its discretion in denying the motion
for a mistrial. Davis, 534 F.3d at 915-16. “[C]laims which were raised and decided
on direct appeal cannot be relitigated on a motion to vacate pursuant to 28 U.S.C. §
2255.” Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir. 2003) (quoting
United States v. Shabazz, 657 F.2d 189, 190 (8th Cir. 1981)). Thus, to the extent that
Davis attempts to revive his claim that the prosecutor’s actions constituted
prosecutorial misconduct and a violation of Bruton, we will not revisit our prior
decision. Davis may, however, argue that his counsel was ineffective for failing to
object to the prosecution’s use of Exhibit K in closing argument.
II.
We review de novo the denial of a § 2255 motion and review any underlying
factual findings for clear error. United States v. Hernandez, 436 F.3d 851, 854-55
(8th Cir. 2006) (citations omitted). “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). In
order to prevail on an ineffective assistance of counsel claim, a petitioner must (1)
show that counsel’s representation fell below an objective standard of reasonableness,
and (2) the deficient performance prejudiced the defense. Id. at 687-88.
We do not decide today whether Davis’s counsel’s failure to object during
closing argument was objectively unreasonable because, whether reasonable or not,
Davis was not prejudiced by counsel’s conduct. See Tinajero-Ortiz v. United States,
635 F.3d 1100, 1104 (8th Cir. 2011) (quoting Strickland, 466 U.S. at 697) (“If it is
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easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed.”). In
order to show prejudice, a petitioner must show that there is a reasonable probability
that but for the complained-of conduct the result would have been different.
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
While we reiterate that we do not condone the manner in which the prosecutor
utilized the previously undisclosed Exhibit K, we note that the content it displayed
was properly admitted. Without the visual aid, the prosecutor could still have
emphasized the admissions by the defendants in his closing argument. Had counsel
objected, and assuming that the trial court would have sustained the objection, the
jury would have been told to disregard Exhibit K and the prosecutor’s remarks
characterizing the defendants’ statements as “similar.” While an objection might
have altered the manner in which the prosecution’s closing argument was presented,
it would not have altered the content of the argument itself or the evidence available
for the jury’s consideration. In addition, the jury had been properly instructed
regarding the use of each defendant’s statement:
Before any evidence was presented, the district court informed the jury
that the opening statements and closing arguments are intended to help
the jury understand the evidence but are not themselves evidence. The
statements attributed to the defendants in the government’s closing
argument were properly admitted, and the jury received several limiting
instructions regarding the use of out-of-court statements. The district
court also repeated its limiting instruction during the jury’s final
instructions, which the jury heard immediately before closing
arguments, and it was included in the packet of instructions given to the
jury.
Davis, 534 F.3d at 916.
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Furthermore, while the other evidence against Davis was circumstantial it was
not inconsiderable. Davis’s ongoing dispute with his neighbor showed motive for
setting the fire, he was in the area when the fire was started, he lied to the police
about his name and changed his clothes multiple times in an attempt to evade
identification the evening of the fire, and that same night Davis had said to Ballew
and others that Ballew needed to “learn to get along with people.” Id. at 907-09.
To prevail on this claim, Davis had to demonstrate that “there is a reasonable
probability that, but for counsel[’s] failure to object . . . the result of the proceeding
would have been different.” Sinisterra v. United States, 600 F.3d 900, 909 (8th Cir.
2010) (citing Middleton v. Roper, 455 F.3d 838, 849 (8th Cir. 2006)). Davis has not
shown Strickland prejudice. Considering that the statements made by the defendants
were properly admitted, that the jury was properly instructed, and that the other
incriminating evidence available at trial was considerable, the failure of Davis’s
counsel to object during the prosecution’s closing argument does not undermine our
confidence in the outcome of the trial.
III.
The judgment is affirmed.
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