Davis v. United States
| Decision Date | 06 March 2013 |
| Docket Number | NO. 2:06-CR-11,NO. 2:10-CV-60,2:06-CR-11,2:10-CV-60 |
| Parties | JOHN TRACY DAVIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Tennessee |
This matter is before the Court on John Tracy Davis's ("Petitioner" or "Davis") "Motion Under 28 U.S.C. § 2255 To Vacate or Set Aside Sentence by a Person In Federal Custody," [Doc. 185], and his amended motion, [Doc. 193]. Shortly after the filing of the motion, petitioner filed the declarations of six individuals in support of his motion, [Doc. 189-1-6], a facsimile copy of his own declaration, [Doc. 190-1], and a motion for leave to file his supplemental declaration, [Doc. 192]. Since the motion did not comply with Rule 2(b)(2) of the Rules Governing Section 2255 Proceedings For The United States District Courts, ("Governing Rules"), petitioner was ordered to file a brief setting out fully the legal and factual bases for his claims, [Doc. 186], and the supporting brief was filed about two and one-half months later, [Doc. 194]. Since then, petitioner has filed his further supplemental declaration, [Doc. 202-1], additional witness declarations, [Doc. 201, 206], and his second, [Doc. 205], and third, [Doc. 210], declarations.
The United States has responded to the motion and amended motion, [Doc. 215], and petitioner has replied, [Docs. 220, 221]. Along with his replies, petitioner has moved the Court "to conduct a status conference to discuss need for discovery and additional declarations, whether therecord should be expanded, and whether an evidentiary hearing is warranted." No good cause exists for additional discovery or expanding the record and petitioner has not provided reasons for the requests, see Rule 6(b) and 7 of the Governing Rules. Further, because it plainly appears from the motion and supporting brief, the attached exhibits and declarations, and the record of prior proceedings that Davis is not entitled to an evidentiary hearing,1 and is not entitled to relief, the motion for a status conference will be DENIED, the motion and amended motion to vacate will be DENIED, and the case will be DISMISSED.
Davis, Aldifonso Gonzales, Jr. ("Gonzales") and Johnny Joseph Fachorn, Jr. ("Fachorn") were indicted by the federal grand jury on April 11, 2006, on charges of conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C §§ 846, 841(a)(1) and 841(b)(1)(A) (Count One-Davis, Gonzales and Fachorn); conspiracy to distribute and possess with the intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) (Count Two-Davis, Gonzales and Fachorn); attempt to possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) (Count Three-Davis, Gonzales and Fachorn); possession ofa firearm in furtherance of a drug trafficking crime, i.e. Count Three, in violation of 18 U.S.C. § 924(c)(1) (Count Four-Davis); possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count Five-Davis); distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts Six and Eight-Davis); and distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count Seven), [Doc. 1]. A superseding indictment returned June 13, 2006, made technical corrections to the indictment and restated the charges, [Doc. 27].
On June 14, 2006, the government filed an information pursuant to 21 U.S.C. § 851(a)(1) giving notice of intent to seek enhanced punishment by reason of Davis's prior conviction for a felony drug offense on September 22, 1986, in the United States District Court for the Eastern District of Tennessee in case number 2:86-CR-20, i.e. the felony offense of conspiracy to possess with the intent to distribute and to distribute approximately 791 grams of cocaine, [Doc. 31]. By agreement of the parties, Counts Six, Seven and Eight were dismissed on July 28, 2006, [Doc. 61]. On July 29, 2006, the government gave notice of its intent to offer evidence of the prior 1986 conviction and the seizure of cocaine, cash and digital scales in petitioner's residence in Sarasota, Florida, on May 16, 2006, at the time of his arrest in the instant case, pursuant to Federal Rule of Evidence 404(b) [Doc. 63].
In October, 2006, Gonzales and Fachorn pled guilty to Count One pursuant to negotiated plea agreements, [Docs. 69, 76], and agreed to testify at petitioner's trial. After a four day trial, Davis was convicted by the jury as to Counts One, Three and Five and found not guilty as to Counts Two and Four, [Doc. 96]. Davis was sentenced on March 19, 2007, to the mandatory minimum of 240 months imprisonment, [Doc. 139], and judgment was entered on March 22, 2007, [Doc. 141]. Davis appealed the Court's judgment to the Sixth Circuit Court of Appeals, [Doc. 140], and theconviction and sentence were affirmed by the Sixth Circuit on November 12, 2008, [Doc. 158]. United States v. Davis, 300 Fed. App'x 393 (6th Cir. 2008). The instant motion to vacate was then timely filed on March 19, 2010.
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) (). 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 effective assistance" 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 defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
Strickland 466 U.S. at 687. As with any other claim under § 2255, the burden of proving ineffectiveassistance of counsel is on the petitioner. Virgin Islands v. Nicholas, 759 F. 2d 1073, 1081 (3d Cir. 1985).
In considering the first prong of the test set forth in Strickland, the appropriate measure of attorney performance is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688. A defendant asserting a claim of ineffective assistance of counsel must "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. The evaluation of the objective reasonableness of counsel's performance must be made "from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
The second prong of the Strickland test requires the petitioner show counsel's deficient performance prejudiced the defense. Thus, "[a]n error by co...
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