Davis v. United States

KARIM DAVIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent

2:15-cr-00186-GZS-1

2:19-cv-00033-GZS

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

August 30, 2019

RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

Petitioner Karim Davis moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 60.) Following a guilty plea, Petitioner was convicted of possession with intent to distribute heroin and cocaine base; the Court sentenced Petitioner to 151 months in prison. (Judgment, ECF No. 47.) The First Circuit affirmed the sentence. United States v. Davis, 873 F.3d 343 (1st Cir. 2017). In response to the section 2255 motion, the Government moved for dismissal. (Response, ECF No. 65.)

Following a review of the record and after consideration of Petitioner's motion and the Government's request for dismissal, I recommend the Court grant the Government's request to dismiss Petitioner's motion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On February 10, 2016, Petitioner pled guilty to possession with intent to distribute heroin and cocaine base. (Change of Plea Hearing, ECF No. 30; Judgment at 1.)

The Probation Office determined that Petitioner's base offense level for the quantity of controlled substances was 26. (Second Revised Presentence Investigation Report ¶ 22, hereinafter PSR). Probation recommended a two-level criminal livelihood enhancement and a three-level enhancement for Petitioner being a leader in a criminal scheme involving five or more participants. (Id. ¶¶ 23, 25.) Petitioner's prior convictions produced a criminal history score of eight, which corresponds to a criminal history category of IV. (Id. ¶¶ 33 - 44.) Defendant, however, was determined to be a career offender due to two prior felony convictions for controlled substance offenses, setting his base offense level at 32 and his criminal history category at VI. (Id. ¶ 28, 45.) After a three-level reduction for acceptance of responsibility, Petitioner had a total offense level of 29, which, when combined with his criminal history category of VI, yielded a guideline imprisonment range of 151 - 181 months. (Id. ¶ 67.)

On August 16, 2016, after overruling objections concerning the drug quantity, the criminal livelihood enhancement, and the career offender designation, the Court sentenced Petitioner to 151 months of imprisonment.¹ (Sentencing Transcript at 3 - 4, 9 - 18, 34 - 35, ECF No. 52; Judgment at 2; PSR at 24 - 26)

On appeal, Petitioner argued that his prior conviction under one of New York's distribution statutes, NYPL § 220.31, which criminalizes an offer to sell controlled substances, did not meet the guideline definition of a prior controlled substance offense.Davis, 873 F.3d at 345. On October 11, 2017, the First Circuit disagreed, citing prior in-circuit caselaw analyzing a similar New York provision. Id. at 345 - 46 (discussing United States v. Bryant, 571 F.3d 147 (1st Cir. 2009) and NYPL § 220.39). The First Circuit also rejected Petitioner's challenge concerning the criminal livelihood enhancement. Id. at 346.

DISCUSSION

A. Legal Standards

A person may move to vacate his or her sentence on one of four different grounds: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction" to impose its sentence; (3) "that the sentence was in excess of the maximum authorized by law"; or (4) that the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

"[P]ro se habeas petitions normally should be construed liberally in petitioner's favor." United States v. Ciampi, 419 F.3d 20, 24 (1^st Cir. 2005) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, the burden is on the section 2255 petitioner to establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). When "a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing." United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).

A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). "Accordingly, a defendant's failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence." Berthoff, 308 F.3d at 127-28. Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010). The First Circuit has recognized that "federal courts have the authority to consider procedural default sua sponte." Rosenthal v. O'Brien, 713 F.3d 676, 683 (1st Cir. 2013) (citing Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997)); see also Daniels v. United States, 532 U.S. 374, 382-83 (2001) (recognizing that "procedural default rules developed in the habeas corpus context apply in § 2255 cases") (citing Frady, 456 U.S. at 167-68).

An allegation of ineffective assistance of counsel can excuse a procedural default if the petitioner demonstrates that counsel's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984). The petitioner must also demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. A district court reviewing a claim of ineffective assistance of counsel need not address both prongs of the Strickland test because a failure to meet either prong will undermine the claim. Id. at 697.

If a petitioner's "claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail." Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per curiam).

"Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted. An evidentiary hearing 'is not necessary when a [§] 2255 petition (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.'" Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (citation omitted) (quoting DiCarlo, 575 F.2d at 954 (quotation marks omitted)).

Summary dismissal of a motion is permitted when the allegations are "'vague, conclusory, or palpably incredible,'" even "'if the record does not conclusively and expressly belie [the] claim.'" David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). A court can reasonably require a petitioner to supply the court with salient details of the claim prior to permitting discovery or a hearing. Id. (holding that "the district court did not abuse its discretion in refusing to license a fishing expedition").

B. Claims and Analysis

1. Career Offender Enhancement

Petitioner again challenges his career offender designation, but this time on new grounds. Relying on United States v. Townsend, 897 F.3d 66 (2d Cir. 2018), Petitioner argues that one of his two relevant prior convictions cannot serve as a predicate offense forthe career offender enhancement because the particular New York drug distribution statute, NYPL § 220.31, applies to one or more substances not listed under the federal Controlled Substances Act, 21 U.S.C. § 801 et seq.

"The Supreme Court has held that a sentencing court should use a categorical or modified categorical approach when considering sentencing enhancements based on prior offenses." United States v. Mohamed, 920 F.3d 94, 101 (1st Cir. 2019) (citing Mathis v. United States, 136 S.Ct. 2243, 2249 (2016); Taylor v. United States, 495 U.S. 575, 588 (1990). "In short, [courts] look to the statutory definition of the offense in question, as opposed to the particular facts underlying the conviction." United States v. Davila-Felix, 667 F.3d 47, 56 (1st Cir. 2011) (internal quotations omitted). A state statute of conviction can only serve as a predicate offense "if the statute's elements are the same as, or narrower than" the federal elements. See Descamps v. United States, 570 U.S. 254, 257 (2013).

When a state statute "sets out a single (or 'indivisible') set of elements" the straightforward categorical approach applies, but when a state statute has "a more complicated (sometimes called 'divisible') structure . . . list[ing] elements in the alternative, and thereby defin[ing] multiple crimes" courts use the modified categorical approach. Mathis v. United States, 136 S. Ct. 2243, 2248 - 49 (2016). Under the modified categorical approach, "a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. at 2249 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)). The modified categorical approach, however, "gives a sentencing court no special warrant to explore the facts of an offense, rather thanto determine the crime's elements and compare them with the generic definition." Id. at 2251.

For purposes of the career offender guideline enhancement, U.S.S.G. § 4B1.1(a), the term "controlled substance offense" means:

an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the

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