United States v. Davis
| Decision Date | 24 August 2015 |
| Docket Number | CRIMINAL ACTION NO. 2:13-cr-001-DLB-CJS,CIVIL ACTION NO. 2:14-cv-07348-DLB-CJS |
| Parties | UNITED STATES OF AMERICA PLAINTIFF v. KEVIN DAVIS DEFENDANT |
| Court | U.S. District Court — Eastern District of Kentucky |
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Defendant Kevin Davis has filed a pro se Motion To Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (R. 50). The United States has filed its Response (R. 56), to which Defendant has filed a Reply. (R. 65). Having all relevant documents before the Court, this matter is now ripe for consideration and preparation of a Report and Recommendation. 28 U.S.C. § 636(b). For the reasons stated below, it will be recommended that Defendant's Motion to Vacate, Set Aside, or Correct Sentence (R. 50) be denied.
On January 17, 2013, a federal grand jury returned a three-count Indictment against Defendant, alleging that he conspired with others1 to distribute controlled substances in violation of 21 U.S.C. §§ 841(a), 846. (R. 3). Count 1 charged Defendant with conspiracy to distribute one kilogram or more of heroin between August 19, 2006, and March 18, 2011; Count 2 charged Defendant with conspiracy to distribute five kilograms or more of cocaine during the same period; and Count 3 charged Defendant with conspiracy to distribute an unspecified amount of marijuana between August 19, 2006, and October 19, 2011. (Id.).
Defendant was arrested on February 15, 2013. (R. 13). Following his arrest, Defendant completed a written waiver of his Miranda rights and signed a typewritten confession in which he admitted to the conduct underlying the charged conspiracy to distribute cocaine, heroin, and marijuana. (R. 56-1). Specifically, Defendant confessed that: (1) he was aware some of his childhood friends—Maury Eakins, Raymond Hill, and Kareem Fairbanks—were selling cocaine and heroin; (2) he gave those friends high-grade marijuana from California; (3) he witnessed those friends counting large amounts of money at the "Glenwood address" on several occasions; (4) he once moved cocaine out of a parked car at Hill's request; (5) he once allowed those friends to count approximately $250,000 worth of drug proceeds at his residence; and (6) he and his cousin intended to use the money seized from them at the airport to buy high-grade marijuana. (Id.).
On April 11, 2013, the grand jury returned a Superseding Indictment against Defendant. (R. 21). The Superseding Indictment retained Counts 1 and 2 from the original Indictment, amended Count 3 to extend the duration of the marijuana conspiracy through February 15, 2013, and added a forfeiture allegation regarding two vehicles that allegedly were proceeds of the charged conspiracy. (Id.). On April 12, 2013, pursuant to a written Plea Agreement, Defendant changed his initial plea and entered a plea of guilty to Count 2 of the Superseding Indictment. (R. 39). In exchange, the Government agreed to move for the dismissal of Counts 1 and 3 at sentencing and recommend the statutory minimum sentence of 120 months of imprisonment. (Id.).
At the rearraignment hearing, Defendant was placed under oath. (R. 53, at 7). The District Court questioned Defendant extensively at the rearraignment to ensure that Defendant understood all of the terms of the Plea Agreement. (R. 53, at 7). The Court specifically asked Defendant whether he personally signed the Agreement, dated April 9, 2013, and whether he reviewed the Agreement with defense counsel before signing it. (Id. at 4-5). Defendant answered those questions in the affirmative. (Id.). Defendant's counsel also confirmed that she "read every word of the plea agreement to him and explained everything to him." (Id. at 8). The Court further confirmed that Defendant and his counsel had not had any problems communicating with one another. (Id. at 9). Defense counsel advised that she "had a good relationship" with her client and that they had "not had any issues at all." (Id.). The District Court then engaged in a line of questioning to determine Defendant's competence and, after being satisfied of his ability to understand and comprehend, continued with the proceeding. (Id. at 7-9).
The District Court moved on to a discussion of the discovery, including witness statements, that the Government had provided to Defendant prior to the rearraignment. The District Court specifically asked Defendant: "Have you gone over [the] discovery with your lawyer in your case?" (Id. at 10). Defendant responded in the affirmative. (Id.). The District Court then confirmed once more that Defendant and his counsel reviewed the discovery together. (Id.). Later during the rearraignment, the District Court asked Defendant whether his counsel had "done everything [he] asked her to do." (Id. at 12). Defendant responded in the affirmative and confirmed that he was "satisfied with the representation that [his counsel] provided to [him]." (Id.).
While reviewing the contents of the Plea Agreement with Defendant, the District Court also discussed the appellate-waiver provision with Defendant and defense counsel. Defendant acknowledged and defense counsel confirmed that Defendant understood the waiver of his right to appeal and its effect:
(Id. at 26).
Following this discussion, defense counsel indicated to the District Court that Defendant might be having second thoughts about pleading guilty. (Id. at 36). The District Court reiterated that it was Defendant's decision to enter a guilty plea, that no one could force Defendant to plead guilty, and that Defendant was entitled to a trial. (Id. at 36-40). The Court granted a one-hour recess for Defendant to confer with his attorney. (Id. at 39-40).
After the one-hour recess, defense counsel advised the Court that Defendant was prepared to move forward with his guilty plea. (Id. at 40). The District Court asked Defendant:
(Id. at 40-41).2
After a complete Rule 11 colloquy, the District Court concluded Defendant was fully competent and capable of entering an informed plea and that Defendant understood the nature of the charges and the consequences of entering a guilty plea. (Id. at 46-47). The District Court accordingly found that Defendant's guilty plea was knowing and voluntary and supported by an independent basis of fact. (Id. at 47).
Before sentencing, the Probation Office prepared a Presentence Investigation Report (PSR). On June 19, 2013, defense counsel filed Objections to the Offense Conduct section of the PSR at Defendant's request. (See R. 55, at 2-3). Specifically, Defendant objected to paragraphs 4 and 5 of the Offense Conduct section—covering his participation in the conspiracy and the amount of drugs contained in each "load"—arguing that "he did not admit to those paragraphs at the plea and he stipulated that he was entering the plea on the basis that . . . the Government could prove [the facts] beyond a reasonable doubt if he went to trial." Defendant next objected to the quantity of drugs that the PSR stated he removed from Hill's car, maintaining that he moved approximately two ounces of cocaine rather than eight or nine. Defendant also objected to the total amount of drugs, in kilogram weight, attributed to him based on his previous two objections. (See id. at 3-15).
On July 16, 2013, Defendant appeared before the District Court for sentencing. (R. 38). The District Court heard argument on Defendant's Objections to the Offense Conduct section of the PSR and overruled each in turn. (R. 55, at 3-15). The District Court also rejected defense counsel's request to hold the mandatory-minimum sentence unconstitutional as applied to Defendant. (Id. at 8-14). After analyzing the sentencing factors set forth in 18 U.S.C. § 3553(a), the District Court imposed the mandatory-minimum sentence of 120 months of imprisonment. (Id. at 19-22).
On May 2, 2014, Defendant filed the pending § 2255 Motion to Vacate, Set Aside, or Correct Sentence. (R. 50). Defendant's Motion asserts that he received ineffective assistance of counsel in violation of his Sixth Amendment rights. (See id. at 4-5, 7). In his Reply, Defendant requests for the first time that he be permitted to withdraw his guilty plea because of his trial counsel's ineffective assistance. (R. 65).
Under 28 U.S.C. § 2255(a), a federal prisoner may seek habeas relief on grounds that his conviction or sentence violated the Constitution or laws of the United States, that the court lacked jurisdiction to impose the sentence, that the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. See § 2255(a). A § 2255 motion does not have to be founded on constitutional error or even federal law. Watt v. United States, 162 F. App'x 486, 502-03 (6th Cir. 2006). However, to succeed on a § 2255 motion alleging constitutional error, a defendant "must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v...
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