Davis v. United States

SHELTON DENARD DAVIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 14-00278-CG

CRIMINAL ACTION NO. 11-00272-CG-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

August 3, 2015

REPORT AND RECOMMENDATION

Shelton Denard Davis ("Davis"), a federal prisoner proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 68¹) and supporting memorandum (Doc. 68-1) challenging this Court's judgment against him in the above-styled criminal action. The United States of America ("Respondent") has filed a response in opposition (Doc. 71) to the § 2255 motion, and Davis has timely filed a reply (Doc. 72) to the response, along with a motion for an evidentiary hearing (Doc. 73) with supporting memorandum (Doc. 74) and a motion to amend his § 2255 motion (Doc. 75) with supporting memorandum (Doc. 76).

Davis's § 2255 motion is now under submission and is ripe for adjudication. This matter has been referred to the undersigned Magistrate Judge for the holding of an evidentiary hearing, if necessary, and for entry of a report and recommendation as to the appropriate disposition, in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, SD ALA LR 7 S.D. Ala. GenLR 72(a)(1), (2)(R)(effective Aug. 1, 2015; under old SD ALA LR 72.1(c) prior to that time). Upon consideration, and for the reasons stated herein, the undersigned RECOMMENDS that the motion to amend (Doc. 75) be GRANTED but that Davis's § 2255 motion (Doc. 68), as amended (see Docs. 75, 76), be DENIED without an evidentiary hearing and that this matter be DISMISSED with prejudice. The undersigned further RECOMMENDS that Davis be found not entitled either to a Certificate of Appealability or to proceed in forma pauperis on appeal.

I. Applicable Background

On September 30, 2011, the Grand Jury of this district court issued a three-count indictment against Davis, charging as follows:

Count One - conspiracy to possess with intent to distribute over 5 kg of cocaine and more than 280 grams of crack cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2.

Count Two - possession with intent to distribute approximately one kg of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

Count Three - attempt to manufacture crack cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2.

(Doc. 1 [Indictment]).

On October 19, 2011, attorney Tim W. Fleming, Esq., a member of this Court's CJA Panel, was appointed to represent Davis, and Davis entered a plea of not guilty as to all counts. (Docs. 10 - 11) On November 21, 2011, Davis changed his plea and entered a "blind" plea (i.e. one without a written plea agreement) of guilty to Count Two of the indictment, while maintaining his plea of not guilty as to Counts One and Three. (Doc. 25). That same day, the Government filed a notice ofintent to offer evidence under Federal Rule of Evidence 404(b) - specifically, Davis's prior arrest relating to his possession with intent to distribute crack cocaine and possession of a firearm on February 23, 2011. (Doc. 24).

On November 22, 2011, Davis changed his plea and entered a "blind" plea of guilty to Count One of the indictment (Doc. 26), with the Government agreeing on the record at the time of the plea only to dismiss Count Three in exchange for the plea. (See Doc. 57 at 2). The Probation Office issued a draft presentence investigation report (PSI) for Davis (Doc. 27), to which both Davis and the Government filed objections. (Docs. 28, 29). On March 21, 2012, the Court sentenced Davis to 168 months imprisonment as to each of Counts One and Two, to be served concurrently, followed by a term of supervised release with special conditions. (Doc. 37). Count Three was dismissed on the Government's motion. (See id.).

Fleming, on behalf of Davis, filed a notice of appeal of the criminal judgment (Doc. 39), along with a motion to withdraw as counsel on appeal, citing a breakdown in the attorney-client relationship (Doc. 40). Fleming was permitted to withdraw, and Robert Ratliff, Esq., another member of the Court's CJA Panel, was appointed as appellate counsel for Davis. (Doc. 43). On appeal, Davis challenged only his sentence, and on April 23, 2013, the U.S. Court of Appeals for the Eleventh Circuit affirmed Davis's sentence in an unpublished opinion, (Doc. 64); United States v. Davis, 517 F. App'x 841 (per curiam), with the Eleventh Circuit's mandate issuingMay 23, 2013 (Doc. 65). On October 7, 2013, the U.S. Supreme Court denied Davis's petition for a writ of certiorari. (Doc. 66); 134 S. Ct. 269.

On May 12, 2014 (the date Davis declares under penalty of perjury that it was delivered to prison officials for mailing), Davis filed the present § 2255 motion² (Doc. 68).

II. Claims for Relief³

Claim 1 - ineffective assistance of counsel by trial counsel, Fleming, due to his alleged:

A. failure to challenge the indictment as "multiplicious;"

B. failure to "submit a motion seeking discovery," by which he "would have learned that Mr. Davis was being double charged for conduct listed in count one and three;"

C. failure to inform Davis of his right to a bench trial, as "had he presented his issues before the judge, the outcome of his case would have been different, such as the presiding judge would have noticed that the indictment was flawed, and that Mr. Davis was being charged twice for the same conduct in counts one, and three" and "would have corrected the error by dismissing Count Three, leaving the government only with Count One, and Two, to negotiate a plea agreement;"D. "failure to read and review documents disclosed which contained potentially exculpatory materials," as "had his counsel adequately, and thoroughly reviewed the discovery/records involved in his case, then the fact of he (Mr. Davis) being charged twice for the same conduct would have been exposed, and presented to the judge and the indictment would have been dismissed, or count three would have been dismissed, due to double jeopardy;"

E. failure to file opposition to the Government's Rule 404(b) notice;

F. failure to file any pretrial motions, has "had counsel filed either motion listed from [claims] A-E Mr. Davis [sic] sentence would have been different, because count three would have been officially dismissed;"

G. failure to "move for an evidentiary hearing to properly assess the allege [sic] evidence being brought against Mr. Davis[,]" as "had counsel sought an evidentiary hearing in regards to Mr. Davis [sic] case and evidence, the proceedings would have displayed to each party in open court before the judge that Mr. Davis was being charged twice for the same conduct[;]"

H. providing "erroneous advice on several occasions encouraging [Davis] to abandon legitimate meritorious arguments" - more specifically:

i. advising Davis "to agree to what ever the judge was saying during the plea arraignment regarding the conduct and arrest of Alvarez, prior to [Davis's] arrest. Counsel knew thatMr. Davis was not aware of what took place during Alvarez's arrest because he wasn't there. Counsel knew that Alvarez had given the officers an [sic] lengthy list of allege [sic] drug activities of his involvment [sic] with other individuals in the drug trade. Counsel knew or should have known that by having his client to just agree/stipulate to what allegedly took place would ultimately erroneously add more drugs to what Mr. Davis was responsible for;"

ii. "strongly advis[ing]" Davis "to abandon his legitimate objection to the erroneous application of two extra levels to his offense level in relation to an allege [sic] firearm violation, which was in no way related to the underline [sic] offense;"

iii. advising Davis "early in the proceedings of his case...to agree to a document, later identified as a stipulation[,]" without "fully explain[ing] what the document entailed, but assur[ing] Mr. Davis that it would not affect his case;"

I. "agree[ing] to the accuracy of the governments [sic] evidence with out first conducting his own assessment of all the evidence being presented against Mr. Davis," from which "several meritorious claims would have been detected, claims such as multiplicity, etc."

J. failure to prepare for sentencing, as counsel "did not do his own investigation regarding Mr. Davis's prior conviction, or offered [sic] anyevidence to support the use or statues [sic] of Mr. Davis [sic] prior convictions;"

Claim 2 - Prosecutorial misconduct, as the Government allegedly "committed the act of duplicity by submitting an [sic] multiplicious indictment, to obtain an [sic] conviction" and "induce/force [Davis] into entering a less favorable plea agreement."

Claim 3 - Davis's indictment was multiplicitous, in violation of the Fifth Amendment to the United States Constitution.

Claim 4 - ineffectiveness of appellate counsel, Ratliff, for failing to raise on appeal the issue of ineffective assistance of trial counsel for the reasons stated in Claims 1(A) through 1(J), see supra (correspondingly identified as Claims 4(A) through 4(J)).

Claim 5 (raised in Davis's reply and motion to amend) - (A) The Government improperly used the unproven, hearsay statements of a co-conspirator to indict Davis, and (B) counsel was ineffective for not challenging the indictment on this ground.

Davis also alleges that, even if none of the alleged errors individually would warrant relief under § 2255, their cumulative effect would.

III. Applicable Law

A. General Standards Under § 2255

Title 28 U.S.C. § 2255 "permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct thesentence." Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). Specifically, § 2255 provides:

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

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