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Published by Daniel T. Warren

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Published by: Daniel T. Warren on Sep 24, 2011
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 2010 U.S. Dist. LEXIS 87340
August 24, 2010, DecidedAugust 24, 2010, FiledSUBSEQUENT HISTORY:
Appeal dismissed by,Certificate of appealability denied
Davis v. Terry, 625F.3d 716, 2010 U.S. App. LEXIS 23123 (11th Cir. Ga.,2010)
Appeal dismissed by, Writ of habeas corpus denied, Writdenied by
Davis v. Humphrey, 131 S. Ct. 1788, 179 L. Ed. 2d 651, 2011 U.S. LEXIS 2433 (U.S., Mar. 28, 2011)
In re Davis, 2010 U.S. Dist. LEXIS56076 (S.D. Ga., June 8, 2010)
[*1] For Troy Anthony Davis, In Re:Danielle Garten, Jason Ewart, Jonathan L. Stern, PhilipHorton, Steven G. Reade, LEAD ATTORNEYS, PROHAC VICE, Stephen Marsh, LEAD ATTORNEY,Arnold § Porter, LLP, Washington, DC; Thomas H.Dunn, LEAD ATTORNEY, Brian S. Kammer, PROHAC VICE, Atlanta, GA.For William Terry, Respondent: Mary BethWestmoreland, Susan V. Boleyn, LEAD ATTORNEYS,Beth Attaway Burton, Dept. of Law GA AttorneyGeneral's Office, Atlanta, GA; Thurbert E. Baker,Atlanta, GA.
ORDERBefore the Court is Petitioner Troy Anthony Davis'sPetition for a Writ of Habeas Corpus. (Doc. 2.) Thispetition was originally filed with the United StatesSupreme Court and has been transferred to this Court,pursuant to
28 U.S.C. § 2241(b)
, with instructions to"receive testimony and make findings of fact as towhether evidence that could not have been obtained at thetime of the trial clearly establishes petitioner'sinnocence."
 In re Davis, 557 U.S. , 130 S. Ct. 1, 1,174 L. Ed. 2d 614 (2009)
. This Court has conducted thehearing. (See Docs. 82, 83.) For the reasons that follow,the Court concludes that while executing an innocentperson would [*2] violate the United States Constitution,Mr. Davis has failed to prove his innocence. Accordingly,the petition is
.1 The jurisdictional effects of this transfer,especially with respect to appeal, are unclear.According to the Revision Notes of 
28 U.S.C. §2241
:Subsection (b) was added to givestatutory sanction to orderly andappropriate procedure. A circuit judge who unnecessarily entertainsPage 1
applications which should beaddressed to the district court,thereby disqualifies himself to hearsuch matters on appeal and to thatextent limits his usefulness as a judge of the court of appeals. TheSupreme Court and Supreme CourtJustices should not be burdenedwith applications for writscognizable in the district courts.This text suggests that petitions are transferred toavoid burdening the Supreme Court. Functionally,then, this Court is operating as a magistrate for theSupreme Court, which suggests appeal of thisorder would be directly to the Supreme Court.However, this Court has been unable to locate anylegal precedent or legislative history on point.
This case involves the shooting of Savannah PoliceDepartment ("SPD") Officer Mark Allen MacPhail. In theearly hours [*3] of August 19, 1989, Officer MacPhailwas working a part-time security job when he came to theassistance of a homeless man, whom had been assaultedin the parking lot of a Burger King restaurant. As OfficerMacPhail neared the commotion, one of the three menresponsible for the assault gunned him down.An earlier shooting at a party in the Cloverdaleneighborhood of Savannah also plays a role in this case.
Here, an individual shot at a car as it was leaving theparty, striking one of its occupants in the face. Becausethis case centers on eyewitness testimony, the Courtpresents the facts in the manner in which they wereprovided by those who witnessed these events.2 By recounting the facts of the Cloverdaleshooting, the Court does not mean to suggest thatthe validity of that conviction is tied to thevalidity of Mr. Davis's conviction for the murderof Officer MacPhail. See infra [*4] Analysis PartIII.C.iv. Rather, the Court details those factsbecause they are necessary to understand theevents of August 19, 1989 and the subsequentinvestigation and trial, during which the Statebootstrapped the conviction for the Cloverdaleshooting to Mr. Davis's conviction for theMacPhail murder.I. THE INVESTIGATIONSAt 11:29 p.m. on August 18, 1989, the SPD receiveda 911 call from a resident in the Cloverdale neighborhoodinforming them that several shots had been fired. (Resp.Ex. 30, Disk 1 at 00:14.) The police received severalmore reports of gunfire, and an officer was dispatched toinvestigate. At 12:17 a.m. on August 19, 1989, an officerwas informed that a local hospital had admitted Mr.Michael Cooper to treat a gunshot wound he received inthe Cloverdale neighborhood. (Id. at 03:37, 09:12.) Thepolice visited Mr. Cooper in the hospital and obtained adescription of the shooter: a young, tall,African-American male wearing a white batman shirt, ablack hat, and shorts. (Id. at 11:01.)At 1:09 a.m. on August 19, 2010, the SPD received a911 call from an employee at the Thunderbird Inn,located across the Street from the Burger King onOglethorpe Avenue.
(Id. at 22:56.) [*5] The callerinformed the police that an individual had been shot inthe Burger King parking lot and that she saw twoAfrican-American males running from the scene in thedirection of the Trust Company Bank building. Oneminute later, the SPD received another 911 call informingthe police that the shooting victim was a police officer.(Id. at 24:13.) At 1:16 a.m., the SPD received a secondcall from the Thunderbird employee, informing them thatshe saw two men run from the Burger King parking lottowards the Trust Company Bank building, that bothwere wearing shorts, and that one was wearing a tank topt-shirt. (Id. at 30:38.) The caller did not identify the colorof the shorts or the tank top. The limited description wasquickly relayed to the responding officers, whoimmediately began searching for similarly dressedindividuals. (Id. at 38:03.) Meanwhile, the officers at thescene secured the area and began interviewing potentialwitnesses. (Resp. Ex. 30 at 13-14.) The followingrelevant witness statements were secured during theinvestigations.3 For reference, a hand drawn diagram of theBurger King parking lot and surrounding area isprovided in the appendix to this order. Thediagram [*6] is from the police file (Resp. Ex. 30at 375) and is not to scale.A. Harriett Murray's First StatementAt 2:27 a.m. on August 19, 1989, Ms. HarriettMurray provided the police with a statement concerningPage 22010 U.S. Dist. LEXIS 87340, *2
the MacPhail shooting. (Pet. Ex. 32-U at 1.) In the earlyhours of August 19, 1989, Ms. Murray was sitting infront of the Burger King restaurant with Mr. LarryYoung. (Id.) Mr. Young went to the nearby conveniencestore to purchase cigarettes and beer. (Id.) While Mr.Young was returning from the store to the Burger Kingparking lot, Ms. Murray noticed that he was arguing withanother individual, who was following him. (Id.) Ms.Murray also noticed two other individuals, approachingfrom the direction of the Trust Company Bank building,who were following Mr. Young. (Id.)Walking away from the individuals, Mr. Youngrepeatedly told the group that he was not going to fightthem. (Id.) Ms. Murray heard one individual tell Mr.Young not to walk away and threaten to shoot him. (Id.)The individual then started digging down his shirt. (Id.)As the three individuals converged on Mr. Young, oneproduced a gun. (Id.) Unaware of the weapon, Mr. Youngcontinued to walk away from the trio. (Id.) [*7] As Mr.Young approached a van parked at the Burger Kingdrive-through window, the armed individual struck Mr.Young in the head with what Ms. Murray believed wasthe butt of the weapon. (Id. at 1-2.) Mr. Young then fledtoward the drive-through window, and began beating onthe van and the window, asking for someone to call thepolice. (Id. at 1.)Next, Ms. Murray observed a police officerapproaching the three individuals, who were now fleeing,telling them to 'hold it." (Id. at 1-2.) As the officer closedto within five feet, the individual with the firearm turnedand aimed the weapon at the officer. (Id. at 2.) Theweapon did not discharge when the individual first pulledthe trigger. (Id.) As the officer reached for his gun, theindividual shot him in the face. (Id.) Wounded, the officerfell to the ground, at which point the gunman fired two orthree additional rounds at the officer and then continuedrunning. (Id.) Ms. Murray then found Mr. Young andassisted him in tending to his head wound. (Id.)Ms. Murray described the gunman as havingmedium-colored skin with a narrow face, highcheekbones, and a fade-away haircut. (Id.) She estimatedhim to be between twenty-four to thirty [*8] years old,four inches taller than the officer, and approximately onehundred and thirty pounds. (Id.) Ms. Murray recalls thegunman as wearing a white shirt and dark colored pants.(Id.)B. Larry YoungAt 3:10 a.m. on August 19, 1989, the police obtaineda statement from Mr. Young concerning the MacPhailshooting. (Pet. Ex. 32-N at 1.) Mr. Young informed thepolice that, during the early hours of August 19, 1989, hewas sitting in the Burger King parking lot drinking beerwith his girlfriend, Ms. Murray. (Id. at 2.) When thecouple drank their last beer, Mr. Young went to theTime-Saver
convenience store to get more beer.
(Id.)As Mr. Young was returning, an African-American malewearing a yellow t-shirt began asking him for one of thebeers that Mr. Young just purchased. (Id. at 2, 5.) WhenMr. Young informed the individual that he could not havea beer, the individual began using foul language towardMr. Young. (Id. at 2.) As Mr. Young continued walkingback toward the Burger King, the individual in the yellowt-shirt followed him, continuing the verbal altercation.(Id.) As he approached the Burger King parking lot, Mr.Young noticed a second African-American male slippingthrough [*9] the fence separating the convenience storeparking lot from the Trust Company Bank property. (Id.)Soon, Mr. Young realized that he was being followed bya third individual. (Id.)4 Different witnesses refer to this conveniencestore as either the Time-Saver or Penny-Saver.5 The convenience store is located to the west of the Burger King, on the same side of OglethorpeAvenue as the Burger King. (Pet. Ex. 32-N at 1.)As Mr. Young entered the Burger King parking lot,he observed Ms. Murray and two gentlemen sitting withher quickly get up and flee the area. (Id.) Mr. Young nowrealized that he was cornered and resumed arguing withthe individual in the yellow t-shirt. (Id.) As Mr. Youngwas focused on the individual in the yellow t-shirt, hewas hit in the head by a second person. (Id. at 2-3.) Astunned and fearful Mr. Young ran toward the BurgerKing drive-through window, seeking help. (Id. at 3.)When he was at the window, Mr. Young heard onegunshot, which caused him to duck for cover behind avan waiting at the window. (Id. at 8.) Eventually, he ranto the building's front entrance and entered the building.(Id. at 3.)Mr. Young informed the police that the individual inthe yellow [*10] t-shirt was around twenty to twenty-oneyears old, five feet nine inches tall, and one hundred andfifty-eight pounds. (Id. at 5-6.) The individual had shorthair, no facial hair, and lighter brown skin. (Id. at 6.)When describing his clothes, Mr. Young stated that thePage 32010 U.S. Dist. LEXIS 87340, *6

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