Davis v. United States, Cv. 2:19-cv-02286-SHM-tmp

CourtUnited States District Courts. 6th Circuit. Western District of Tennessee
Writing for the CourtSAMUEL H. MAYS, JR., UNITED STATES DISTRICT JUDGE
PartiesHAROLD DAVIS, Movant, v. UNITED STATES OF AMERICA, Respondent.
Docket NumberCv. 2:19-cv-02286-SHM-tmp,Cr.,2:14-cr-20310-SHM-01
Decision Date19 August 2022

HAROLD DAVIS, Movant,
v.

UNITED STATES OF AMERICA, Respondent.

Nos. Cv. 2:19-cv-02286-SHM-tmp, Cr., 2:14-cr-20310-SHM-01

United States District Court, W.D. Tennessee, Western Division

August 19, 2022


ORDER GRANTING MOTION TO SUPPLEMENT ORDER DENYING & DISMISSING MOTION PURSUANT TO 28 U.S.C. § 2255 ORDER DENYING CERTIFICATE OF APPEALABILITY ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

SAMUEL H. MAYS, JR., UNITED STATES DISTRICT JUDGE

Before the Court are the motion pursuant to 28 U.S.C. § 2255 (“§ 2255 motion”) and the motion to supplement filed by Movant Harold Davis. (ECF Nos. 1 & 26.) The motion to supplement is GRANTED. On August 9, 2019, the United States filed a response contending that Movant's § 2255 motion is without merit. (ECF No. 15.) For the reasons stated below, the § 2255 motion is DENIED.

I. PROCEDURAL HISTORY

A. Criminal Case No. 2:14-20310-SHM-01

On November 13, 2014, a federal grand jury in the Western District of Tennessee returned a two-count indictment against Davis charging him with sex trafficking of a minor, in violation of 18 U.S.C. §§ 1591(a)(1) and (2),(b)(1) and (2), and (c) (Count One), and use of a facility of interstate commerce to promote an unlawful activity, in violation of 18 U.S.C. §§ 1952(a)(2) and (3) (Count Two). (Criminal (“Cr.”) ECF No. 1.) A trial was scheduled for March 10, 2015. (Cr. ECF No. 18.) On March 3, 2015, Davis filed a motion in limine seeking to preclude the Court

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from instructing the jury on 18 U.S.C. § 1591(c). (Cr. ECF No. 23.) On March 8, 2015, the United States filed a motion to continue the trial due to a material government witness' family emergency. (Cr. ECF No. 28.) The trial was reset for April 28, 2015. (Cr. ECF No. 31.) On April 27, 2015, the Court ruled on pending motions in limine and denied Davis' motion to preclude jury instructions on 18 U.S.C. § 1591(c). (Cr. ECF No. 35.) Based on the denial of that motion, the defense requested a continuance for additional time to prepare. (Cr. ECF No. 37.) The Court granted the motion for a continuance, and the trial was reset for June 22, 2015. (Cr. ECF No. 36.) Additional continuances were granted. (Cr. ECF Nos. 41, 45, 51, 70, 74 & 79.)

From March 29 through April 5, 2016, this Court presided at a jury trial, at which the jury found Davis guilty as charged. (Cr. ECF Nos. 81, 83, 85-87.)

The United States Probation and Pretrial Services prepared a Presentence Investigation Report (“PSR”) calculating Davis' advisory guideline range at 188 to 235 months in prison. (Cr. ECF No. 105, PSR ¶ 83.) The United States filed no objections to the PSR. (Cr. ECF No. 104.) Davis' counsel filed objections to the guideline calculations and a request for a downward variance from the guideline range. (Cr. ECF No. 119.) On December 21, 2016, Davis' counsel filed an amended position. (Cr. ECF No.128.)

The Court conducted a sentencing hearing on December 29, 2016, determined the applicable guideline range to be 151 to 188 months in prison,[1] and sentenced Davis to 151 months in prison on Count One and 40 months in prison on Counts Two, to be served concurrently. (Cr. ECF Nos. 129, 131.) On December 30, 2016, Davis appealed. (Cr. ECF No. 133.) The United

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States Court of Appeals for the Sixth Circuit summarized the evidence presented at Davis' trial while analyzing Davis' claim that the trial court had constructively amended Davis' indictment:

Davis convinced his then-girlfriend, Yanisha Rivera, to prostitute herself
The two operated out of a hotel in Memphis, Tennessee, and used Backpage.com- a website known to facilitate prostitution-to set up “dates.” Davis then recruited a minor female, D.B., to join their “team,” and arranged a date at a hotel for Rivera and D.B. to “work” together on the evening of June 7, 2014. The trio went to the hotel. But Davis “thought it was a setup,” so they left in Davis's car
As coincidence would have it, Deputy Richard McKinney of the Shelby County Sheriff's Department stopped the car shortly after it left the hotel because it had expired registration tags. The deputy then detained Davis for failing to have a valid driver's license, secured Rivera and D.B., and conducted a consent search of the car. The search revealed indicia of sex trafficking-numerous bags of condoms, lingerie, lubricant, and hygiene products. Acting on his suspicion, Deputy McKinney searched Backpage.com for Davis's phone number. That search yielded an advertisement that promoted an “80 Dollar Special” for “2 Girl[s]” in Memphis and specifically featured pictures of Rivera and D.B.
Deputy McKinney ticketed all three for promoting prostitution in violation of Tennessee Code § 39-13-515, and also ticketed D.B. for criminal impersonation in violation of Tennessee Code § 39-16-301 because she would not correctly identify herself (she provided several different names, Social Security numbers, and dates of birth). Authorities later conclusively determined D.B.'s identity and discovered she was seventeen years of age. (Davis disputes he knew D.B. was a minor, claiming D.B. told him she was nineteen.)

United States v. Davis, No. 17-5010, 711 Fed. App'x 254, 255-56 (6th Cir. Oct. 3, 2017).

B. Civil Case Number 19-2345-SHM-tmp

On May 3, 2019, Movant filed the § 2255 motion alleging that:

(1) Counsel provided ineffective assistance:

(a) by acquiescing in the Court's denial of the motion in limine regarding the § 1591 jury instruction (ECF No. 1-1 at 5-7),
(b) by failing to file a motion to suppress the testimony of Davis' girlfriend Yanisha Rivera, who was “threatened and coerced by the government”, and by failing to call the victim as a witness at trial (id. at 7),
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(c) by conceding that the case involved prostitution during the opening statement (id. at 8-11),
(d) by failing to object to use of the victim's statements from the PSR as a violation of Brady v. Maryland, 373 U.S. 83 (1963) (id. at 12-13), and
(e) by failing to raise defective indictment and improper jury instructions claims on direct appeal (id. at 13, ECF No. 26 at 7-10).

(2) The trial court should not have instructed the jury on the § 1591(c) theory of culpability because it was not contained in the indictment (ECF No. 1-1 at 14-21, ECF No. 26 at 9-10).

(3) The Government committed prosecutorial misconduct by misstating the Court's interpretation of § 1591 throughout the trial (ECF No. 1-1 at 21-22, 29-32).

(4) The indictment was constructively amended by the trial evidence and the Court's instruction on § 1591 (id. at 22-26, ECF No. 26 at 10-13).

(5) The indictment was defective and failed to inform Davis of the offense charged (ECF No. 1-1 at 26-29).

II. LEGAL STANDARDS

Pursuant to 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (citation and internal quotation marks omitted).

A § 2255 motion is not a substitute for a direct appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998). “[N]onconstitutional claims that could have been raised on appeal, but were

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not, may not be asserted in collateral proceedings.” Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). “Defendants must assert their claims in the ordinary course of trial and direct appeal.” Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996). This rule is not absolute:

If claims have been forfeited by virtue of ineffective assistance of counsel, then relief under § 2255 would be available subject to the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In those rare instances where the defaulted claim is of an error not ordinarily cognizable or constitutional error, but the error is committed in a context that is so positively outrageous as to indicate a “complete miscarriage of justice,” it seems to us that what is really being asserted is a violation of due process.

Grant, 72 F.3d at 506.

Even constitutional claims that could have been raised on direct appeal, but were not, will be barred by procedural default unless the defendant demonstrates cause and prejudice sufficient to excuse his failure to raise these issues previously. El-Nobani v. United States, 287 F.3d 417, 420 (6th Cir. 2002) (withdrawal of guilty plea); Peveler v. United States, 269 F.3d 693, 698-99 (6th Cir. 2001) (new Supreme Court decision issued during pendency of direct appeal); Phillip v. United States, 229 F.3d 550, 552 (6th Cir. 2000) (trial errors). Alternatively, a defendant may obtain review of a procedurally defaulted claim by demonstrating his “actual innocence." Bousley, 523 U.S. at 622.

After a § 2255 motion is filed, it is reviewed by the Court and, “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion ....” Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts (“Section 2255 Rules”). “If the motion is not dismissed, the judge must order the United...

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