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Davis v. McDermott

United States District Court, E.D. Wisconsin

May 22, 2019

ANTHONY DAVIS, Petitioner,
JENNIFER McDERMOTT, [1] Respondent.



         Anthony Davis was charged in Wisconsin state court with recklessly causing great bodily harm to his three-month-old daughter, convicted by a jury, and sentenced to fifteen years' imprisonment. He filed a post-conviction motion, arguing that his trial lawyer erred when he failed to impeach the baby's mother with her prior criminal convictions. The state courts rejected Mr. Davis's claim, finding that he had not demonstrated that he was prejudiced by his counsel's alleged error. Mr. Davis is currently serving his sentence at Kettle Moraine Correctional Institution in Plymouth, Wisconsin.

         In 2017, Mr. Davis filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is in custody in violation of the United States Constitution because his trial lawyer provided ineffective assistance of counsel. The respondent maintains that Mr. Davis has not satisfied his burden of proving that his claim merits relief under the deferential standards set forth in § 2254. The Court agrees. Because the state court's decision denying Mr. Davis's ineffective-assistance claim is not objectively unreasonable, Davis is not entitled to relief under § 2254. The Court therefore will deny his habeas application.

         I. Background

         On May 14, 2013, Lakiesha Bowie took her three-month-old daughter, LD, to Children's Hospital after LD woke up with bruising around her face and red spots in her eyes. See Exhibit 1 to Answer to Petition for a Writ of Habeas Corpus 2, ECF No. 13-1. After being examined by Angela Rabbitt, a pediatric child-abuse specialist, it was determined that LD had suffered bruising and hemorrhages to her eyes; fractures to her left tibia, left fibula, and both femurs; and a tear to the tissue connecting her upper lip to her gums. Ex. 1, at 2-3. Dr. Rabbitt told Milwaukee police that LD's injuries were consistent with child abuse. Ex. 1, at 3-4.

         Officer Amy Stolowski interviewed Ms. Bowie at the hospital during the early morning hours of May 15, 2013. Ms. Bowie told Officer Stolowski that she had taken LD to the hospital five times in the last month, as LD had been very fussy. She also reported noticing similar bruising around LD's left eye within the last month. But Ms. Bowie had no explanation as to a potential cause for LD's broken bones. According to Ms. Bowie, she and LD's father, Anthony Davis, were LD's only caregivers. Ex. 1, at 2.

         The police also interviewed Mr. Davis at the hospital. He confirmed that he lived with Ms. Bowie and LD. However, Mr. Davis did not have any explanation for LD's injuries or what caused them. Ex. 1, at 2.

         Mr. Davis was nevertheless taken into custody on suspicion of child abuse and interviewed by Detective Marilynn Francis. At first, he denied knowing how LD broke her legs. But he eventually admitted to hearing a popping sound a few days prior when he had LD stand up while holding onto his finger. Mr. Davis also admitted to playing too rough with LD and that Ms. Bowie had told him to be gentle with her. When Mr. Davis demonstrated on a doll how he changed LD's diaper, he spread the doll's legs extremely wide and pushed the legs to its chest. Mr. Davis stated that LD often cried when he changed her diaper. Ex. 1, at 2-3.

         A. Circuit Court proceedings

          On May 18, 2013, Mr. Davis was charged in Milwaukee County Circuit Court with one count of physical abuse of a child by recklessly causing great bodily harm. See Exhibit 8 to Answer ¶ 1 n.1, ECF No. 13-8; see also State v. Davis, 885 N.W.2d 807 (Wis. Ct. App. 2016). A second child-abuse charge was added a few days later after it was discovered that LD also had six broken ribs. See Ex. 1. Mr. Davis was appointed counsel through the state public defender's office. See Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 By a Person in State Custody 11, ECF No. 1. Prior to trial, the parties stipulated that Ms. Bowie, a State witness, would admit to eight prior convictions; if he testified, Mr. Davis, would admit to five prior convictions. Ex. 8, ¶ 2.

         Multiple witnesses testified at trial. Officer Stolowski indicated that she interviewed Mr. Davis at the hospital and that he had no explanation for LD's injuries. Ex. 8, ¶ 3. Detective Francis stated that Mr. Davis also initially denied having any knowledge about the source of LD's injuries during his custodial interview. Ex. 8, ¶ 4. But eventually Mr. Davis admitted that LD had fallen off a bed and a rocker, that he had heard a popping sound while walking with LD the day before her hospital visit, and that Ms. Bowie had complained about him being too rough with LD. The Francis interview was recorded, and portions of it were played for the jury.

         Ms. Bowie testified that she had taken LD to the hospital several times during the month prior to the May hospitalization. Ex. 8, ¶ 5. She further testified that she and Mr. Davis were LD's sole caregivers. Ms. Bowie claimed that she was confused about the cause of LD's injuries and that she told doctors that she rolled over LD while co-sleeping one time. According to Ms. Bowie, Mr. Davis was also at the hospital that day, and he never mentioned that he could have caused LD's injuries. Ms. Bowie also identified Mr. Davis's voice in several jail calls in which Mr. Davis admitted to using drugs and sitting on LD. However, Ms. Bowie claimed that she was unaware that Mr. Davis used drugs. Ms. Bowie was not asked about her prior convictions. See Exhibit 14 to Answer 36:25-83:3, ECF No. 13-14.

         Dr. Rabbitt described LD's injuries and opined that they were likely caused by child abuse. Ex. 8, ¶ 6. She explained that the injuries were rare for a non-mobile infant, that the hemorrhages and bruising could be indicative of blunt-force trauma, and that the broken legs were consistent with them being pulled and twisted or shaken violently. According to Dr. Rabbitt, LD's injuries could not have been caused by Ms. Bowie rolling onto her while sleeping.

         Mr. Davis testified in his own defense. After acknowledging that he had five prior convictions, see Exhibit 15 to Answer 44:10-15, Mr. Davis told the jury that he never squeezed, shook, or pulled LD, see Ex. 8, ¶ 7. He did, however, admit that a few days prior to the May hospitalization he used cocaine and accidentally sat on LD for “a couple of seconds” inside a motel room where the family was staying; Mr. Davis claimed that he weighed 315 pounds at the time. Mr. Davis also admitted that he had told the police that Ms. Bowie was a wonderful mother.

         The jury ultimately found Mr. Davis guilty of both charges. Ex. 8, ¶ 1. He was sentenced to ten years of initial confinement and five years of extended supervision on each charge; the sentences were ...

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