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Evans v. Davis

United States Court of Appeals, Fifth Circuit

November 9, 2017

LAVELLE EVANS, Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

         Appeal from the United States District Court for the Northern District of Texas

          Before KING, JONES, and ELROD, Circuit Judges.

          KING, CIRCUIT JUDGE

         Lavelle Evans was convicted for the murder of Crystal Jenkins and sentenced to life in prison. After exhausting his state habeas remedies, Evans petitioned for federal habeas relief. Evans's pro se petition claims, among other things, that his trial counsel rendered ineffective assistance by failing to move for suppression of a cell phone found in Evans's home. He contends that the cell phone, and the subsequently discovered call records linking him to the scene of the murder, were obtained from an unconstitutional search conducted pursuant to a deficient warrant. The district court denied this claim. We granted a certificate of appealability and now we AFFIRM.

          I.

         Lavelle Evans was convicted by a Texas jury for the murder of Crystal Jenkins and sentenced to life in prison. See Evans v. State, No. 05-08-01289-CR, 2010 WL 779327, at *5-6 (Tex. App.-Dallas Mar. 9, 2010, pet. ref'd) (not designated for publication). Prior to the murder, Evans and Jenkins had been charged as coconspirators in a drug case in El Dorado, Arkansas. On October 7, five days before their trial was set to start, the Arkansas prosecutor told Evans's attorney that Jenkins had agreed to testify on behalf of the prosecution. Later that morning, Evans met with his defense attorney to discuss the impending trial. That night, between 7:30 p.m. and 8:00 p.m., Jenkins's brother saw Jenkins and Evans in a car together in El Dorado. Jenkins told her brother that she and Evans were going back to her house.

         The next morning at around 5 a.m., a man reported that he heard several gunshots while he was out for a stroll around White Rock Lake in Dallas, Texas. On the shore of White Rock Lake, police found the body of a woman shot three times. The deceased would later be identified as Jenkins.

         Once Jenkins's body was identified, police obtained a search warrant for Evans's home. This warrant and the affidavit supporting it are crucial to this appeal. The section of the warrant meant for designating the things to be seized failed to do so. Instead, it provided a description of Evans's house in El Dorado. The warrant did not mention or otherwise reference any other supporting material. An affidavit from Investigator Mark Thomas provided more information on the things to be seized. Investigator Thomas swore in the affidavit that "instruments of a crime, " among other things, were being concealed at Evans's home. It further explained that on the night before the murder, Evans called Jenkins's sister. He asked for Jenkins, and the sister handed over the phone. The sister then overheard Evans telling Jenkins to meet him at a Subway restaurant. The affidavit was sworn to in the presence of the judicial officer who issued the warrant, and the judicial officer signed the affidavit. The state habeas record does not reveal whether the affidavit was physically attached to the warrant or even physically present when the warrant was executed.

         Pursuant to the warrant, Investigator Thomas and several other officers searched Evans's home and seized, along with other things, two cell phones. The officer who seized the cell phones kept them in his possession instead of logging them. Only one of the cell phones worked. The working phone's call records showed that between October 7 and 9 the cell phone had made or received at least 197 calls. Cell tower data showed that the cell phone had left El Dorado at 10:30 p.m. the night of October 7, traveled to Dallas, and then returned to El Dorado no later than 9:38 a.m. on October 8. The data specifically placed the cell phone near White Rock Lake between 4:38 a.m. and 5:07 a.m. Thus, the data put Evans at the scene of the murder.[1] The call log also led police to Evans's relatives, Jarvis Moore and Quinn Moore. Both of them spoke to Evans on multiple occasions around the time of the murder. They described Evans as sounding upset and possibly "suicidal or something."

         At trial, it came out that Evans lacked a solid alibi. In a letter postdating the murder, Evans wrote to a friend that he could not have killed Jenkins because he had been out drinking with three other friends that night. April McGraw, Evans's girlfriend at the time of the murder, testified to something different. According to McGraw, she left Evans with her child at 6:30 p.m. on October 7 to go to work and returned at 7:10 a.m. the next morning, at which point Evans was home. When the prosecution questioned her about Evans's claim in his letter that he had been out drinking, McGraw stated that Evans must have been lying because there was "no way" that he would have left the house. Separately, there was evidence that someone had tampered with Evans's home monitoring unit on the night of Jenkins's murder. At the time of the murder, Evans was on supervised release in an unrelated case, and he wore a device on his wrist that transmitted a signal to a unit in his home that monitored every time he came and went. The night of the murder, the monitoring unit had been disabled and the backup battery tampered with. The next morning at 9:54 a.m., the monitoring unit was reconnected and turned back on.

         Evans was tried and convicted in Texas for capital murder. The State did not seek the death penalty, and Evans was sentenced to life in prison. Evans's direct appeal was unsuccessful. In February 2011, he filed a pro se state habeas petition. In it, he raised several claims, including the particular ineffective assistance claim currently before us. Specifically, Evans contended that his trial counsel rendered ineffective assistance by failing to move for suppression of the working cell phone and call records. A Texas state trial court rejected all of Evans's claims. The court rejected Evans's ineffective assistance claim based on the defaulted Fourth Amendment claim because it found that his trial counsel "believed the best means of attacking the search warrant was on the documentation of what was seized and the chain of custody of the items seized." Thus, the trial court recommended that Evans's claim be denied because he had failed to show that his trial counsel's performance was deficient or that he was prejudiced. The Texas Court of Criminal Appeals ("TCCA") denied Evans's petition without a written order on the findings of the trial court.

         In February 2013, Evans, again proceeding pro se, filed a federal habeas petition. Once again, he asserted, among his many claims, the same ineffective assistance claim based on his trial counsel's failure to move to suppress. The case was referred to a magistrate judge, who recommended denying all of Evans's claims as well as his request for an evidentiary hearing. With respect to Evans's ineffective assistance claim based on the defaulted Fourth Amendment claim, the magistrate judge recommended finding that Evans had "not demonstrated either deficiency or prejudice." Evans v. Stephens, No. 3:13-CV-0021-B, 2014 WL 4271625, at *13 (N.D. Tex. Aug. 29, 2014). The magistrate judge concluded that the affidavit supporting the warrant identified the items to be seized with sufficient particularity. Thus, the warrant's failure to incorporate the affidavit or identify the items with particularity was "a clerical error . . . subject to the good-faith exception to the Texas exclusionary rule." Id. at *14. The magistrate judge further recommended finding that Evans's trial counsel had strategically chosen to object to the cell phone's admission based on documentation and chain of custody arguments, rather than allege a Fourth Amendment violation. Id. The district court adopted the magistrate judge's recommendations and denied Evans a certificate of appealability ("COA") on all of his claims. Id. at *1.

         Evans filed a motion for a COA in this court. We granted a COA on Evans's ineffective assistance claim based on his defaulted Fourth Amendment claim. We declined to grant a COA on his other claims.

         Evans argues on appeal that his trial counsel was constitutionally ineffective for failing to move for suppression. Specifically, Evans contends that the search which uncovered the working cell phone violated the Fourth Amendment because the warrant failed to identify the items to be seized with particularity and failed to incorporate the supporting affidavit. The call records, as fruit of the poisonous tree, would therefore have been subject to the exclusionary rule had Evans's trial counsel moved to suppress. Moreover, Evans argues that under Groh v. Ramirez, 540 U.S. 551 (2004), the good-faith exception to the exclusionary rule does not apply because no reasonable officer could have believed that the warrant complied with the Fourth Amendment given ...


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