Davis v. United States, 2:03-CR-62

• Decision Date: 22 May 2012
• Docket Number: NO: 2:10-CV-108,NO. 2:03-CR-62,2:03-CR-62,: 2:10-CV-108
• Parties: DELMAN DAVIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Tennessee

DELMAN DAVIS, Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

NO. 2:03-CR-62

NO: 2:10-CV-108

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE AT GREENEVILLE

Dated: May 22, 2012

Judge Greer

MEMORANDUM OPINION AND ORDER

This matter is before the Court on petitioner Delman Davis's ("Petitioner" or "Davis") motion to "Correct And/Or Vacate His Unlawful Conviction And/Or Sentence" pursuant to 28 U.S.C. § 2255, [Doc. 848]. The United States has responded, [Doc. 865], and petitioner has answered the government's response, [Doc. 870]. Also pending is petitioner's "Motion Pursuant to Rule of Evidence 201(b),(d), (e) & (f) For The Court To Take Judicial Notice And To Hold A Hearing On Same," [Doc. 859], his "Motion Requesting The Court To Determine Whether Petitioner Is Actually Innocent Of Being A Lawful Career Offender," [Doc. 860], and "Suggestions In Support Of Petitioner's Actual Innocent Claim Of Being A Career Offender," [Doc. 863]. For the reasons which follow, petitioner's motions, [Docs. 859, 860, 863] will be DENIED, his motion pursuant to 28 U.S.C. § 2255 will be DENIED, [Doc. 848], and this action will be DISMISSED.

Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings For The United States District Courts, the Court has determined that the pleadings on file and the records of the case show conclusively that Davis is not entitled to relief under § 2255 and there is no need for an evidentiary hearing. His request for an evidentiary hearing is, therefore, likewise DENIED.

I. Procedural And Factual Background

Davis and Eric Serna were indicted by the federal grand jury on August 26, 2003, [Doc.13]. On October 28, 2003, the grand jury returned a superseding indictment charging Davis, Serna and seven co-defendants with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841(a)(1), [Doc. 64]. After six days of trial in November, 2004, Davis was convicted of a lesser-included offense of conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine, [Doc. 544].

The probation office prepared a Presentence Investigation Report ("PSR"). The PSR determined petitioner's offense level to be 28; however, because he had at least two prior felony convictions for drug offenses, Davis was found to be a career offender pursuant to USSG § 4B1.1, resulting in an enhanced offense level of 37. Petitioner had nine criminal history points for a criminal history category of IV; again, though, his criminal history category was enhanced to VI because of his career offender status. With an offense level of 37 and a criminal history category VI, his guidelines range was 360 months to life imprisonment. He was subject to a statutory mandatory minimum of ten years of imprisonment.

Although Davis did not object to the PSR, he did argue for a variance from the guidelines range on the basis that the career offender provision of the Sentencing Guidelines resulted in a sentence that was "wholly unwarranted," [Doc. 777 at 2]. He specifically requested the Court not to apply the career offender provision and sentence him within a range of 110 to 137 months, [Id.].¹ At sentencing, the Court rejected an argument that a downward departure under the Guidelines wasappropriate but did vary downward because of petitioner's cooperation with the government after his conviction and imposed a sentence of 262 months, 98 months below the bottom of the applicable advisory guidelines range. Judgment was entered on March 23, 2007, [Doc. 787], and Davis timely filed a direct appeal. The Sixth Circuit affirmed on June 2, 2009. See United States v. Davis, 332 Fed. App'x 247 (6th Cir. 2009). Petitioner then timely filed the instant § 2255 motion on May 13, 2010.

The relevant facts were summarized in the PSR:

8. Gorge Duarte testified that he had been involved in selling cocaine from 1998 through 2003. He identified a notebook, where he recorded drug sales by the dollar amount sold, and money owed. He stated that one of the entries showed where he had sold a kilogram of cocaine to defendant Davis, at the price of $24,000. Duarte reflected that the entry showed defendant Davis still owed him $14,000. The entry for defendant Davis was recorded as "Shoobie." Gorge Duarte stated he first met the defendant in jail in 1998, and they met again in 2002, while meeting with Cole Butler at Kentucky Fried Chicken in Johnson City, Tennessee. He gave his phone number to the defendant, and defendant Davis called about purchasing drugs. Duarte testified that he fronted the defendant a kilogram of cocaine, to see how he could sell it. He indicated he fronted Davis a kilogram a week for seven to eight months. Duarte identified several entries where the price for a kilogram of cocaine was written, then marked off when paid. He also stated that he was arrested in March of 2003, and his brother, Guadalupe Duarte, took over the business.

9. Eric Serna testifed that he first met Delman Davis in late May or early June of 2002. He stated he accompanied Gorge Duarte to the defendant's detail shop to pick up the payment for a kilogram of cocaine. He stated he went there because Duarte had fronted the defendant a kilogram of cocaine, and he went many more times to pick up money for the fronted drugs. He confirmed the entry in the notebook, identifying that defendant Davis had one kilogram fronted for $24,000. He also confirmed that the defendant received a kilogram ofcocaine a week, which he delivered to defendant Davis' apartment in Johnson City three or four times. Eric Serna also testified that on August 21, 2003, he met defendant Davis and Trevis Love at the food court at the mall in Johnson City. They were discussing how to find another individual who owed $18,000 to Guadalupe Durate for drugs. Serna offered the defendant $5,000 to collect the $18,000 debt.

10. According to Special Agent Mike Templeton of the Drug Enforcement Administration, agents became aware of the members of the conspiracy in late 2002. Through the use of informants and confidential sources, it was determined that codefendant Gorge Duarte, along with his brother, Guadalupe Duarte; and cousin, Eric Serna, provided kilogram quantities of cocaine and marijuana to other drug distributors. Corroborated evidence supports the conclusion that the defendant was involved in the distribution of three to five kilograms of cocaine. Based upon the proof submitted at trial, defendant Davis will be held accountable for a minimum of three kilograms of cocaine.

PSR, ¶¶ 8, 9 10.

II. Standard of Review

This Court must vacate and set aside petitioner's sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, . . ." 28 U.S.C. § 2255. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant is not entitled to relief. If it plainly appears the movant is not entitled to relief, the court may summarily dismiss the § 2255 motion under Rule 4.

When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief.Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). "Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing." O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996).

To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F. 3d 352, 354 (6th Cir. 1994). See also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F. 2d 1039, 1041 (6th Cir.), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F. 3d 503, 506 (6th Cir.), cert. denied, 517 U.S. 1200 (1996). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).

The Sixth Amendment provides, in pertinent part, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. A defendant has a Sixth Amendment right not just to counsel, but to "reasonably effectiveassistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court set forth a two-pronged test for evaluating claims of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the

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