Tre's Davis v. United States
| Decision Date | 30 August 2016 |
| Docket Number | Civil Action No. 2:14-12570,Criminal Action No. 2:12-00031 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | TRE'S DAVIS, Movant, v. UNITED STATES OF AMERICA, Respondent. |
Pending before the Court is Movant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody.1 (Document No. 54.) By Standing Order, this matter was referred to United States Magistrate Judge R. Clarke VanDervort for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 55.) By Order entered on January 6, 2016, the above case was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for deposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 63.)
On April 30, 2012, Movant pled guilty to one count of Distribution of Cocaine Base in violation of 21 U.S.C. § 841(a)(1) (Count Four) and one count of Being a Prohibited Person in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) (Count Six). (Criminal Action No. 2:12-00031, Document Nos. 26 - 28.) A Presentence Investigation Report wasprepared. (Id., Document No. 42.) As to Count Four, the District Court determined that Movant had a Base Offense Level of 14, and an Adjusted Offense Level of 18, the Court having applied a four-level increase pursuant to U.S.S.G. § 2K2.1(b)(6) because defendant used or possessed a firearm in connection with another felony offense. (Id., Document No. 42, p. 8.) As to Count Six, the District Court determined that Movant had a Base Offense Level of 26, and an Adjusted Offense Level of 26. (Id.) The District Court then applied a Multiple Count Adjustment pursuant to U.S.S.G. § 3D1.4, which resulted in a Combined Adjusted Offense Level of 27. (Id.) Finally, the District Court determined that Movant had a Total Offense Level of 24 after having applied a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b). (Id., p. 9.) The District Court sentenced Movant on July 12, 2012, to serve a total term of 63-months imprisonment, to be followed by a three-year term of supervised release. (Id., Document Nos. 33 and 34.) The District Court also imposed a $100 special assessment. (Id.)
On July 23, 2012, Movant, by counsel, filed a Notice of Appeal. (Id., Document No. 37.) In Movant's appeal, appellate counsel, Mr. David Schles, filed an Anders Brief stating that there was no meritorious issue for appeal "but questioning the reasonableness of Davis' sentence." United States v. Davis, 505 Fed.Appx. 266 (4th Cir. 2013). Subsequently, Movant was advised of his right to file a pro se supplemental brief. Id. Movant, however, failed to file such a brief. Id. On January 22, 2013, the Fourth Circuit Court of Appeals affirmed Movant's conviction and sentence. Id. Specifically, the Fourth Circuit stated that it "thoroughly reviewed the record and conclude[d] that Davis' sentence [was] both procedurally and substantively reasonable." Id. The Fourth Circuit further reviewed the entire record pursuant to Anders and "found no meritorious issues for appeal." Id. Movant did not file a petition for certiorari in the United States SupremeCourt.
On March 17, 2014, Movant, acting pro se, filed his instant Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Civil No. 2:14-12570, Document No. 54.) As grounds for habeas relief, Movant first argues that his sentence was illegally enhanced. (Id., p. 2.) In support, Movant cites Alleyne and Descamps arguing that his predicate offenses were incorrectly considered by the District Court in determining the sentencing guideline range. (Id.) Second, Movant argues that he was subjected to ineffective assistance of counsel based upon the following: (1) Counsel's failure "to evaluate or request discovery or suppression on the search warrant or possible exculpatory information that could have been discovered;" (2) Counsel's failure to "challenge the drug quantity and quality contained in the police reports;" (3) Counsel's failure "to interview police, subpoena certain witnesses, review evidence or crime scene;" (4) Counsel's failure "to argue and object at sentencing for furtherance of drug trafficking crime;" (5) Counsel's failure "to act in petitioner's best interest;" (6) Counsel's failure to present evidence challenging "the government's theory of a conspiracy by petitioner;" and (7) Counsel mislead Movant "prior to and during trial proceedings with promises of being sentenced under the Fair Sentencing Act in return for his plea agreement." (Id., pp. 3 - 9.) As an Exhibit, Movant attaches a copy of a "Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Divisions" from the Attorney General Dated August 12, 2013, regarding "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases." (Id., pp. 11 - 13.)
By Memorandum Opinion and Order entered on July 10, 2015, the District Court reduced Movant's sentence from 63 months to 51 months based upon a retroactive amendment to theUnited States Sentencing Guidelines. (Id., Document Nos. 60 - 62.) Movant was released from custody on October 30, 2015, and is currently serving his term of supervised release.
The relevant portion of Section 2255 provides as follows:
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 motion made pursuant to Section 2255 is a collateral attack on a conviction or sentence. To succeed on a Section 2255 motion, the movant must prove that "his sentence or conviction was imposed in violation of the Constitution or law of the United States, that the court was without jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence otherwise is subject to collateral attack." 28 U.S.C. § 2255. "A motion collaterally attacking a petitioner's sentence brought pursuant to § 2255 requires the petitioner to establish his grounds by a preponderance of the evidence." Sutton v. United States, 2006 WL 36859, * 2 (E.D.Va. Jan. 4, 2006).
The filing of a Section 2255 motion does not supplant or obviate the need to file a direct appeal. Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947). The United States Supreme Court explains that United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). A non-constitutional claim that could have been, but was not, raised on direct appeal may not beraised for the first time in a Section 2255 motion. Stone v. Powell, 428 U.S. 465, 478 fn. 10, 96 S.Ct. 3037, 3044 fn. 10, 49 L.Ed.2d 1067 (1976). A constitutional claim that could have been, but was not, raised on direct appeal may not be raised for the first time in a Section 2255 motion unless the movant can show either (1) "cause and actual prejudice resulting from the errors of which he complains," or (2) "he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack." United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999). "The existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel." Id. at 493. Actual prejudice is shown by demonstrating that the error worked to movant's "actual and substantial disadvantage," rather than just creating a possibility of prejudice. See Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997)(quoting Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1986)). "In order to demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, a movant must show actual innocence by clear and convincing evidence. Mikalajunas, 186 F.3d at 493. "Typically, to establish actual innocence, a petitioner must demonstrate actual factual innocence of the offense of conviction, i.e., that petitioner did not commit the crime of which he was convicted; this standard is not satisfied by a showing that a petitioner is legally, but not factually, innocent. Id. at 494. The movant must show that "it is more likely than not that no reasonable juror would have convicted him." Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Furthermore, a movant may not reassert a claim decided on direct review. In Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.)(per curiam), cert. denied, 429 U.S. 863, 97 S.Ct. 169, 50 L.Ed.2d 142 (1976), the Court held that a defendant "willnot be allowed to recast, under the guise of a collateral attack, questions fully considered [on appeal]." An exception exists, however, when there has been an intervening change in the law which justifies consideration of a prior determination. See Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974).
Indigent criminal defendants have the constitutional right to effective assistance of counsel through direct appeal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) When a movant...
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