U.S. v. Davenport

Decision Date04 February 1993
Docket NumberNo. 92-1191,92-1191
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James DAVENPORT, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Richard N. Cox, Asst. U.S. Atty., Office of the U.S. Atty., Danville, IL, for plaintiff-appellee.

Suzanne Philbrick, Chesterton, IN, for defendant-appellant.

Before EASTERBROOK and ROVNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

During custodial interrogation, James Davenport admitted that three guns could be found at his house. A search turned up the weapons he had described. This led to Davenport's conviction under 18 U.S.C. § 922(g), which makes it a crime for one previously convicted of a felony to possess a firearm. Davenport has many such convictions, which deepened his troubles, for they led to his sentencing as an armed career criminal under 18 U.S.C. § 924(e). The upshot: 210 months' imprisonment, to be followed by 5 years' supervised release.

Agent Paul Vido relayed at trial the statements Davenport had made when arrested. Vido did not say whether Davenport had received Miranda warnings and waived his rights: no one asked about the subject, and Davenport's lawyer did not ask the court to suppress the confession. At sentencing, the judge did not consider the indictment or other charging papers underlying his prior burglary convictions, although under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), these show whether a burglary is a "violent felony" for purposes of § 924(e)(1). The presentence report, which Davenport conceded was accurate, describes crimes that are "generic burglary" under Taylor, but that decision makes the charging papers dispositive, and these are not in the record.

Davenport's new appellate counsel contends that the trial and sentencing were infected by plain error: a confession elicited without a waiver of rights was admitted into evidence, and prior convictions were used to enhance the sentence without satisfying the standards of Taylor. These assertions are unwarranted. Nothing in the record shows, one way or the other, whether Davenport received Miranda warnings and waived his rights, and whether the charging papers satisfy the standards of Taylor. For all we can tell, Agent Vido gave proper warnings and Davenport signed a waiver in blood. For all we know, the charging papers meet the standard of "generic burglary" and thus establish that the crimes are "violent felonies". The record is entirely consistent with proper conduct. An event that cannot be sorted into the "error" bin at all necessarily is not a "plain" error. See United States v. Frady, 456 U.S. 152, 163 & n. 13, 102 S.Ct. 1584, 1592 & n. 13, 71 L.Ed.2d 816 (1982); United States v. Caputo, 978 F.2d 972, 974-75 (7th Cir.1992). Davenport confronts the further problem that even "plain error" would not be enough to upset the admission of his confession. Defendants must move before trial to exclude such evidence, Fed.R.Crim.P. 12(b)(3), and failure to make the motion produces forfeiture unless the defendant can establish "cause" for the omission. Fed.R.Crim.P. 12(f). See also Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). "Cause" is a more exacting standard than "plain error," Frady, 456 U.S. at 164-68, 102 S.Ct at 1592-95, for it requires the defendant to show some hindrance to the conduct of the defense. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). Once Davenport forfeited his right to contest the use of a confession, there was no need to inquire into warnings and waivers; that was all water under the bridge, irrelevant to any issue within the jury's purview. Failure to elicit irrelevant evidence is not error of any kind.

Ours is an adversary system. Courts need not, and in the main should not, raise issues the parties bypass. Any criminal prosecution covers ground littered with issues: was there probable cause for the arrest?, did the suspect receive warnings?, was the confession voluntary?, these and a thousand more questions could arise in a given case. Could arise. Most of the time they need not be litigated, because the police have behaved properly. Counsel examine the facts and winnow the issues, presenting for resolution by the court only those about which there is a fair basis for dispute. Judges heed these decisions--including decisions expressed only by silence--not only out of respect for the role of counsel but also because they must husband their time for cases and claims that require it. It would be pointless, even perverse, to require judges to demand that prosecutors establish compliance with Miranda (and, by implication, every other doctrine of substantive and procedural law) in every case, for then substantial quantities of time would be devoted to proving what no one denies. Rule 12 takes a different view of the parties' obligations, and the court's. Yet, by Davenport's reasoning, whenever the parties are content to let a potential issue go, most likely because they believe that there is nothing to disagree about, plain error ensues--for the record will be silent, and the court of appeals cannot be sure that, had the subject been broached, things would not have gone differently. The more empty the potential claim, the more the parties agree, and the less, therefore, is said at trial, the graver the error. To state the proposition is to expose the fallacy.

Although this record does not demonstrate any error by the court, and therefore lacks any basis on which to reverse the conviction, it does not eliminate the possibility of error by counsel. Ineffective assistance of counsel at trial is "cause" for a procedural default. Murray, 477 U.S. at 488, 106 S.Ct. at 2645; contrast Coleman v. Thompson, --- U.S. ----, ---- - ----, 111 S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991). What if Davenport's trial lawyer was simply asleep, failing to make a pretrial motion to suppress (or to object at trial) because the possibility of a Miranda problem never entered his mind? What if his trial lawyer was unaware that Taylor directs the sentencing judge to the charging papers rather than the evidence presented at the former trials? That would be substandard performance. Davenport's appellate lawyer asks us to hold that, as a matter of law, the omissions to move to suppress and ask the judge to examine the charging papers were ineffective assistance of counsel.

Such an argument had no prospect of success on this appeal. Attorneys need not pursue every conceivable avenue; they are entitled to be selective. Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Did trial counsel make appropriate choices? How could we tell? To show that he received ineffective assistance of counsel at trial, Davenport must establish (the burden of both proof and persuasion is his) that his lawyer "made errors so serious that counsel was not functioning as the 'counsel' guaranteed ... by the Sixth Amendment ... [and] that the...

To continue reading

Request your trial
94 cases
  • State v. Graham
    • United States
    • Ohio Supreme Court
    • December 17, 2020
    ...they are entitled to be selective.’ " State v. Murphy , 91 Ohio St.3d 516, 542, 747 N.E.2d 765 (2001), quoting United States v. Davenport , 986 F.2d 1047, 1049 (7th Cir.1993). Dr. Swales provided comprehensive testimony about mitigating factors the jury should consider. Moreover, Graham fai......
  • State v. Grate
    • United States
    • Ohio Supreme Court
    • December 10, 2020
    ...they are entitled to be selective.’ " State v. Murphy , 91 Ohio St.3d 516, 542, 747 N.E.2d 765 (2001), quoting United States v. Davenport , 986 F.2d 1047, 1049 (7th Cir.1993). Although the defense did not introduce any trial-phase evidence, Grate fails to state what evidence defense counsel......
  • Davis v. Bowen
    • United States
    • U.S. District Court — Southern District of Ohio
    • November 4, 2022
    ...are entitled to be selective.'” State v. Murphy, 91 Ohio St.3d at 542, 747 N.E.2d 765, quoting United States v. Davenport (C.A.7, 1993), 986 F.2d 1047, {¶ 355} Rose Weimer, the defendant's mother, testified that she left home for three months to escape her husband's abuse. Weimer returned h......
  • Woods v. State
    • United States
    • Indiana Supreme Court
    • November 23, 1998
    ...evidence motion is at best a poorly suited vehicle for advancing an ineffective assistance of counsel claim"); United States v. Davenport, 986 F.2d 1047, 1050 (7th Cir.1993) ("If all the defendant can get is an opportunity to enlarge the record--something he could obtain with less fuss [in ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT