Davis was convicted of murder and sentenced to death. He attempted to overturn his conviction by arguing that his attorney had failed to provide him with effective representation. He argued in particular that the lawyer had failed to investigate and present mitigating evidence which might have persuaded the jury to impose life imprisonment rather than the death penalty.

Davis identified a number of different mitigating considerations which his attorney had failed to investigate or present to the jury. One of them was possible FAS. (891 F. Supp. at 1461). Although the court's opinion mentions that Davis asserted this claim about FAS, the opinion says nothing specifically about the merits of that claim. Most of the assertedly mitigating information was about Davis' personal background. The judge concluded that that information was so adverse that it would have been harmful for Davis if his attorney had raised it, and that therefor there was no denial of effective assistance of counsel. (891 F. Supp. at 1465.) Although evidence about FAS clearly could only have helped Davis, the opinion simply does not discuss it.