United States v. Ellis
| Decision Date | 06 October 2020 |
| Docket Number | Case No. 13-cr-00818-PJH-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. PURVIS LAMAR ELLIS, Defendant/Movant. |
| Court | U.S. District Court — Northern District of California |
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
Before the court is the pro se motion, as amended, of defendant Purvis Lamar Ellis for an order under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The court determines that the matter is suitable for decision without oral argument and deems the matter submitted on the papers. Having carefully considered the relevant legal authority, the parties' papers, and the record, and having presided over the underlying proceedings, the court DENIES Ellis's § 2255 motion for the reasons set forth below.
Defendant Ellis is currently serving a sentence imposed by this court. On December 19, 2013, Ellis was charged in the following counts of an eight-count indictment: Racketeering Conspiracy in violation of 18 U.S.C. § 1962(d) (Count One); Attempted Murder in Aid of Racketeering in violation of 18 U.S.C. § 1959(a)(5) and 2 (Count Two); Assault with a Dangerous Weapon/Resulting in Serious Bodily Injury in Aid of Racketeering in violation of 18 U.S.C. § 1959(a)(3) and 2 (Count Three); Maiming in Aid of Racketeering in violation of 18 U.S.C. § 1959(a)(2) and 2 (Count Four); and Use/Possession/Brandish/Discharge of a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A) and 2 (Count Five).
Counsel for Ellis and his co-defendants jointly filed several pretrial motions, including motions for a bill of particulars; motion to dismiss, or, in the alternative, for a bill of particulars; motion for discovery and disclosure of FRE 404(b) evidence and disclosure of identity of confidential informant; motion for search and disclosure of electronic surveillance; motion to suppress pretrial and in-court identifications; motion to suppress evidence seized from search on residential curtilage; motion to suppress evidence from an apartment search and for a Franks hearing; motion to suppress evidence seized pursuant to arrest; and motion to suppress evidence seized from digital devices. After ruling on defendants' pretrial motions, the court referred the case to a United States Magistrate Judge for discovery disputes. Dkt. nos. 127, 143, 147. Defendants litigated several discovery matters before the Magistrate Judge, including disclosures about the use of cell-site simulators. See dkt. no. 215. Counsel for Ellis subsequently filed motions on behalf of all defendants to suppress evidence obtained from cell-site simulators and evidence seized during an apartment search, which the court denied by order entered August 24, 2017. Dkt. no. 337.
On September 21, 2017, Ellis entered a guilty plea to Counts One, Two and Five pursuant to a written plea agreement under Rule 11(c)(1)(A) and 11(c)(1)(C) of the Federal Rules of Criminal Procedure. The plea agreement included an appeal waiver and reflected Ellis's agreement that the elements of Count Five, Discharge of a Firearm During and in Relation to a Crime of Violence, were the following:
Dkt. no. 352. On February 28, 2018, the court sentenced Ellis to a total term of 240months of imprisonment, consisting of 120 months on Count One and Two, to be served concurrently, and 120 months on Count Five to be served consecutively to all other counts; 5 years of supervised release; and a $300 special assessment. Counts Three and Four were dismissed on the government's motion. The judgment was entered on the court docket on March 5, 2018. Dkt. no. 377.
On August 19, 2019, Ellis filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside or correct the sentence, asserting a claim of ineffective assistance of counsel for failing to file a notice of appeal at petitioner's request. Dkt. no. 411. Because Ellis was convicted of Count Five for use/possession/brandish/discharge of a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A), the court notified the Office of the Federal Public Defender ("FPD") of his pro se § 2255 motion pursuant to Miscellaneous Order 2019.08.05, in which the court presumptively appointed the FPD to represent any defendant previously determined to have been entitled to appointment of counsel to determine whether that defendant may qualify for relief under § 2255 in light of the Supreme Court's holding in United States v. Davis, 139 S. Ct. 2319 (2019), that the residual clause defining a "crime of violence" in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. On September 9, 2019, the FPD filed a notice of non-intervention stating that it would not seek appointment to represent Ellis on any Davis claim, without taking a position on the merits of any potential Davis claim. Dkt. no. 414.
By order entered October 9, 2019, the court dismissed the § 2255 motion with leave to amend. Dkt. no. 416. Ellis timely filed an amended § 2255 motion on October 28, 2019, asserting an ineffective assistance of counsel claim on the ground that he asked his attorney to file an appeal, and that she failed to do so. Dkt. no. 418 ("Mot."). Ellis's amended § 2255 motion included an express waiver of attorney-client privilege with respect to defense counsel's alleged failure to file a notice of appeal. On November 18, 2019, the court issued an order to show cause and authorized the government to conduct discovery of attorney-client communications subject to Ellis's narrow waiver ofthe attorney-client privilege, only as necessary to respond to the § 2255 motion as limited to the matters raised by his ineffective assistance of counsel claim, pursuant to Rule 6(a) of the Rules Governing Section 2255 Proceedings. Dkt. no. 419.
The government filed a response in opposition to the amended § 2255 motion on January 21, 2020. Dkt. no. 425 ("Opp."). In support of its response, the government submitted a copy of defense counsel's sworn responses to the government's written interrogatories, including the following:
On January 30, 2020, Ellis filed a reply to the government's opposition, asserting that "he had in fact requested counsel to file a notice of appeal after the sentencing." Dkt. 426 ("Reply") ¶ 5. Ellis asserted that a request for electronic discovery into his archived CORRLINKS inmate email account from the Bureau of Prisons ("BOP") would show that he "had repeatedly communicated via email to counsel about the status of any appeal," and requested an evidentiary hearing as to his communications with defense counsel about filing an appeal.
By order entered March 2, 2020, the court construed Ellis's assertions as a request for discovery and authorized limited discovery of his available email records from the Bureau of Prisons ("BOP") reflecting email communications via CORRLINKS to his attorney from February 28, 2018, to March 19, 2018. Dkt. no. 427. The government filed a series of three status reports, including a sworn declaration by a BOP paralegal specialist stating that Ellis was in the process of being transferred to BOP custody during the relevant timeframe and did not enter BOP custody until March 21, 2020, so that Ellis would not have had access to BOP's CORRLINKS email service during the relevant time period. Dkt. no. 430 (). As Ellis was incarcerated at the Glen Dyer Facility until March 12, 2018, and in the Nevada Southern Detention Center ("NSDF") from March 12 to March 20, 2018, the government conducted additional discovery from those non-BOP facilities. The government reported that the Glen Dyer county jail does not provide email access for federal inmates, making it impossible for Ellis to communicate with his attorney by email from the period February 28 to March 12, 2018. Dkt. no. 433 (). The government further reported that NDSF confirmed that any emails sent or received by inmates while in custody at NDSF are retained for five years, and that a facility investigator with NDSF conducted a search and did not locate any emails sent to or from Ellis during his eight-day incarceration there. Dkt. no. 435 ().
On June 25, 2020, Ellis filed a supplemental motion to renew his request for an evidentiary hearing on his claim that counsel was ineffective for failing to file a notice of appeal. Dkt. no. 437. Ellis asserts that after the sentencing, he asked counsel to file an appeal because he was uncomfortable with the conviction on Count Five for discharge of a firearm in furtherance of a crime of violence. Ellis further asserts that during a conference call with defense counsel on August 6, 2019, he asked counsel about the status of his appeal and whether the recent Davis decision could apply to his case, and that couns...
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