United States v. Davis

UNITED STATES OF AMERICA, Petitioner, v. D'ANGELO DOMINICO DAVIS, Respondent.

No. 2:98-cr-0114 KJM DAD P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: July 1, 2014

ORDER AND

FINDINGS AND RECOMMENDATIONS

Movant is a federal prisoner proceeding through counsel with an amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant was convicted of armed credit union and bank robberies with the use of a firearm during and in relation to those robberies. He now seeks post-conviction relief on the following grounds: (1) he is innocent of the charges upon which he was convicted; (2) his counsel rendered ineffective assistance; (3) his conviction is the result of prosecutorial misconduct; and (4) his sentence violates his federal constitutional rights to due process and "equal treatment." Upon careful consideration of the record and the applicable law, the undersigned recommends that movant's § 2255 motion be denied.

I. Procedural Background

Movant was charged in a second superseding indictment filed on August 9, 2000 with: (1) three counts of credit union robbery, in violation of 18 U.S.C. §§ 2113(a) and (d) (Counts 1 (Golden One Credit Union), 3 (First Federal Credit Union), and 7 (Schools Federal Credit Union)); (2) one count of bank robbery, in violation of 18 U.S.C. §§2113(a) and (d) (count 5 (U.S. Bank)); (3) one count of attempted armed credit union robbery, in violation of 18 U.S.C. §§ 2113(a) and (d) (Count 9); and (4) five counts of using or carrying a firearm in connection with all of the crimes listed above, in violation of 18 U.S.C. § 924(c)(1) (Counts 2, 4, 6, 8, and 10). (ECF No. 29.) Jury trial commenced on September 3, 2002. (ECF No. 112.) At the conclusion of the evidence, the jury convicted movant on Counts 1 through 8 and acquitted him on Counts 9 and 10 of the second superseding indictment. (ECF No. 140.)

On January 13, 2003, the District Court sentenced movant to concurrent 188 month sentences on Counts 1, 3, 5, and 7; 60 months on Count 2; and 240 months each on Counts 4, 6, and 8, to run consecutively to each other and to counts 1, 3, 5, and 7, for a total aggregate term of 968 months in the custody of the Bureau of Prisons. (ECF No. 161.)

On appeal of movant's judgment of conviction, the Ninth Circuit Court of Appeals held that the evidence introduced at his trial was insufficient to support movant's conviction on Count 4 for using or carrying a firearm in relation to the First Federal Credit Union robbery. The Court of Appeals remanded the case to the District Court with instructions to modify the judgment by striking the sentence and conviction as to Count 4 and to determine, pursuant to the decision in United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005), whether the District Judge would have imposed the same sentence had he been aware that the U.S. Sentencing Guidelines were advisory rather than mandatory. United States v. Davis, No. 03-10028, 138 Fed. Appx. 914 (9th Cir. July 5, 2005).

On August 14, 2006, the District Court struck movant's conviction and sentence as to count four and declared that it would not have imposed a different sentence on movant had it known that the Sentencing Guidelines were advisory. The court resentenced movant to 300 months imprisonment on each of Counts 1, 3, 5, and 7, with the sentences on Counts 1, 3, and 5to be served concurrently to each other. As to count 7, the court sentenced movant to 273 months in the custody of the Bureau of Prisons with that sentence to run concurrently with the sentences imposed on Counts 1, 3, and 5, and 27 months to run consecutively to Counts 1, 3, and 5, for a total term of imprisonment on Counts 1, 3, 5, and 7 of 327 months. The court also sentenced movant to 60 months imprisonment on Count 2 and 240 months imprisonment on each of Counts 6 and 8, with those sentences to run consecutively to each other, for a total term of imprisonment on Counts 2, 6, and 8 of 540 months. Thus, movant was resentenced to a total aggregate term of imprisonment of 867 months in the custody of the Bureau of Prisons. (ECF No. 211.)

Movant again appealed following his re-sentencing after remand. (ECF No. 210.) On appeal, the Ninth Circuit vacated the District Court's sentence of 867 months imprisonment and directed the District Court to reimpose movant's original sentence, but not to impose any sentence on the dismissed Count 4. (ECF No. 224.) On April 13, 2009, pursuant to the mandate of the Court of Appeals, the District Court resentenced movant to 188 months imprisonment on each of Counts 1, 3, 5, and 7, with those sentences to be served concurrently to each other, for a total term of 188 months on those counts. The District Court also sentenced movant to 60 months imprisonment on Count 2 and 240 months imprisonment on each of Counts 6 and 8, with those sentences to be served consecutively to each other, for a total term of 540 months in prison on Counts 2, 6, and 8. The District Court ordered the sentence imposed on counts 2, 6, and 8 to be served consecutively to the sentences imposed with respect to Counts 1, 3, 5, and 7. As a result, movant received a total aggregate sentence of 728 months in the custody of the Bureau of Prisons. (ECF No. 245.)

II. Factual Background

The following trial testimony and other evidence submitted by movant in support of his pending § 2255 motion provides the following factual background to his claims now before this court.

A. Testimony of William Hernandez

William Hernandez provided the following testimony for the defense at movant's trial. On December 7, 1995, Hernandez was working at a restaurant located next door to the GoldenOne Credit Union in Sacramento. ((Reporter's Transcript on Appeal (RT) at 1590.) On that day he observed a burgundy van driving around the parking lot. (Id. at 1591.) He was blowing leaves and dirt off the parking lot and was trying to work and keep his eyes on the driver of the van at the same time. (Id.) He watched the driver of the van for about 15 minutes. (Id.) Part of the driver's face was covered with a hat. (Id. at 1598.) When the van was at the corner of the parking lot between the restaurant and the credit union, he saw two people get into the van which then left the parking lot. (Id. at 1591-92.) Approximately 15 minutes later, several police officers arrived and asked Hernandez if he had seen anyone at the bank. (Id. at 1593.) He told the police officers that he could identify the driver of the van he had seen. (Id. at 1593-94.) However, when he was asked at movant's trial whether he believed he had gotten a good enough look at the van's driver to identify him, Hernandez testified, "I was very nervous. I can't tell." (Id.)

On July 21, 1997, Hernandez was shown a photo lineup that included a photograph of movant Davis. (Id. at 1598.) He was not able to identify anyone in that lineup as the driver of the van. (Id.) Several weeks later, on August 8, 1997, Hernandez was shown another photographic lineup. This time, he identified a person who looked to him like the driver of the van. (Id. at 1594.) When he first looked at this second lineup, he "shook [his] head saying no, and then [he] pointed to number three saying number three looked like him; but [he] thought the individual driving the van was younger." (Id. at 1597.) Hernandez informed the police officer who was present at the lineup that "he looks like him, but I wasn't sure." (Id. at 1595.) The person Mr. Hernandez picked out of the lineup was Terry Amons.¹

Mr. Hernandez testified at movant's trial that he couldn't remember exact details of the photo lineup he had viewed because "it's very hard for me - seven years. I can't remember." (Id. at 1595.) When asked whether "as you sit here today reflecting back over six years ago, almost seven years ago could you identify the person that was driving the van," Mr. Hernandez stated, "I don't think so." (Id. at 1597.)

B. Testimony of Marcel Swift

Marcel Swift was called as a witness by the prosecution at movant's trial and testified that he had participated in the robberies of the Golden One Federal Credit Union on December 7, 1995, and the First Federal Credit Union on December 12, 1995, along with movant, Jason Smith, and Andre Robinson. (Id. at 1509-10.) Swift also testified that he participated in the robbery of the U.S. Bank on February 20, 1996, along with movant, Erik Chukes, and Andre Robinson. (Id. at 1510.)

Swift testified that prior to the robbery of the Golden One Credit Union, he met with movant, Andre Robinson, and Jason Smith at Andre Robinson's apartment to discuss "what we was going to do, who was going to do what . . . ." (Id. at 1511.) He testified that both he and movant brought a MAC-11² firearm to that meeting, presumably for use in that robbery. (Id. at 1511-12.)

In his testimony Mr. Swift explained that a planning meeting was also held prior to the robbery of the First Federal Credit Union. This meeting was attended by Jason Smith, Andre Robinson, and movant. (Id.at 1516.) Swift testified that both he and Jason Smith brought guns to the pre-meeting and that "everybody knew" that guns would be used to facilitate that robbery. (Id. at 1516-17.) Swift identified movant's role in that robbery as driving the getaway car (a stolen van). (Id. at 1515-16.) Swift also testified that both he and Jason Smith were armed during the First Federal Credit Union robbery. (Id. at 1515, 1517.) According to Swift, after the robbery of the First Federal Credit Union the stolen money was divided among all the participants. (Id. at 1518-19.)

Mr. Swift also testified that movant entered the U.S. Bank with him and participated in the robbery of that bank. (Id. at 1519.) According to Swift, movant was carrying either a MAC-11 or a 380 firearm and Swift was armed with the other. (Id. at 1520.) Swift stated that Erik Chukesdrove the getaway van in connection with that robbery. (Id. at 1521.) Mr. Swift had...