Davis v. USA, No. 1:2017cv00071 - Document 10 (E.D. Tenn. 2020)
Court Description: MEMORANDUM AND OPINION. For the reasons stated herein, Petitioner has failed to establish any basis upon which § 2255 relief could be granted, and his § 2255 motion will be DENIED. A certificate of appealability from the denial of his § 2255 motion will be DENIED. A separate judgment will enter. Signed by District Judge Harry S Mattice, Jr on 2/18/2020. (BDG)
Download PDF
<![CDATA[
Davis v. USA Doc. 10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at CHATTANOOGA SHAWN L DAVIS, Petitioner, v. UNITED STATES, Respondent. ) ) ) ) ) ) ) ) ) ) Case Nos. 1:17-cv-71, 1:13-cr-95 J udge Mattice Magistrate J udge Steger MEMORAN D U M OPIN ION Federal inm ate Shawn Davis has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, to which the United States has responded. Davis has not filed a reply, and the deadline to do so has now passed. Having considered the pleadings, the record, and the relevant law, the Court finds there is no need for an evidentiary hearing 1 and Davis’s § 2255 m otion will be denied. I. BACKGROU N D FACTS AN D PROCED U RAL H ISTORY On August 12, 20 14, a jury found Davis guilty of robbery, in violation of 18 U.S.C. § 1951(a) (Count Four); brandishing a firearm in furtherance of a crim e of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count Five); and possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1), and 18 U.S.C. § 924(a)(2) (Count Six). [Crim . Doc. 65; Crim . Doc. 110 at 2]. The Presentence Report categorized Davis as a career offender 1 An evidentiary hearing is required on a § 2255 m otion unless the m otion, files, and record conclusively show that the prisoner is not entitled to relief. See 28 U.S.C. § 2255(b). It is the prisoner’s ultim ate burden, however, to sustain his claim s by a preponderance of the evidence. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 20 0 6). Accordingly, where “the record conclusively shows that the petitioner is entitled to no relief,” a hearing is not required. Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (citation om itted). Dockets.Justia.com under USSG § 4B1.1 due to two prior felony convictions. [Crim . Doc. 89 at 29]. First, when he was eighteen, Davis robbed a wom an at gun point in a parking lot. [Id. at ¶ 34]. Second, Davis was found with “a sm all bag” of m arijuana, and convicted of possession of m arijuana for resale at the age of twenty-five. [Id. at ¶ 38]. Davis objected to the PSR, arguing his conviction under Tennessee’s robbery statute, Tenn. Code Ann. § 39-13-40 1, was not a crim e of violence for the purpose of determ ining his career offender status. [Crim . Doc. 118 at 5]. At sentencing, the Court concluded Davis’s Tennessee robbery conviction was a crim e of violence. [Id. at 10 ]. The Court overruled Davis’s objection and adopted the Presentence Report, as revised. [Id.; Crim . Doc. 111]. As a career offender, Davis had a total offense level of 37 and a crim inal history category of VI, resulting in a guideline im prisonm ent range of 360 m onths to life. [Crim . Doc. 89 at ¶ 63]. Pursuant to 18 U.S.C. § 924(c), Davis’s conviction on Count 5 was required to be consecutive to any other term of im prisonm ent, resulting in an effective guideline range of 444 m onths to life. [Id.]. The Court im posed a 444-m onth sentence, consisting of 240 m onths on Count 4, 84 m onths on Count 5, and 120 m onths on Count 6, with all counts to be served consecutively. [Crim . Doc. 118 at 13; Crim . Doc. 110 ]. Davis tim ely appealed, challenging his career offender designation and corresponding enhanced sentence. [Crim . Doc. 112]. On May 25, 20 16, the United States Court of Appeals for the Sixth Circuit affirm ed Davis’s conviction and sentence. [Crim . Doc. 119]. The court held that because a Tennessee conviction for robbery is a qualifying offense under the elem ents clause of USSG § 4B1.2(a)(1), Davis was properly sentenced as a career offender due to his prior convictions. [Id. at 4-5]. 2 On March 13, 20 17, Davis filed a tim ely 28 U.S.C. § 2255 Motion to Vacate his sentence. [Civ. Doc. 1]. Davis first contends he was denied effective assistance of counsel, in violation of his Sixth Am endm ent rights. Second, he argues a Hobbs Act robbery is not a “crim e of violence” within the m eaning of 18 U.S.C. § 924(c), invalidating his conviction for brandishing a firearm in furtherance of a crim e of violence. Petitioner states his attorneys failed to raise these m atters on direct appeal despite being asked to do so. [Civ. Doc. 1 at 4, 6]. The Governm ent responds, arguing that Petitioner’s legal theories are foreclosed by binding Sixth Circuit precedent, which in turn precludes his ineffective assistance of counsel claim . II. LEGAL STAN D ARD After a defendant has been convicted and exhausted his appeal rights, a court m ay presum e that “he stands fairly and finally convicted.” United States v. Frady , 456 U.S. 152, 164 (1982). A court m ay grant relief under 28 U.S.C. § 2255, but the statute “does not encom pass all claim ed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, collateral attack lim its a m ovant’s allegations to those of constitutional or jurisdictional magnitude, or those containing factual or legal errors “so fundam ental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 20 0 6) (citation om itted); see also 28 U.S.C. § 2255(a). III. D ISCU SSION A. In e ffe ctive As s is tan ce o f Co u n s e l Davis claim s his conviction and sentence should be vacated because his lawyer’s assistance was ineffective. [Civ. Doc. 2 at 3]. In Strickland v. W ashington, the Suprem e Court set forth a two-pronged test for determ ining whether a convicted defendant received ineffective assistance of counsel. See Strickland v. W ashington, 466 U.S. 668 3 (1984). Strickland holds that a petitioner cannot establish his counsel was ineffective unless he dem onstrates that (1) counsel’s perform ance was deficient, such that counsel did not render reasonably effective assistance as m easured by prevailing professional norm s; and (2) he was prejudiced by the deficiency, i.e., there is a reasonable probability that but for counsel’s alleged acts or om issions, the results of the proceedings would have been different. Id. at 687-88, 694; Huff v. United States, 734 F.3d 60 0 , 60 6 (6th Cir. 20 13) (applying Strickland test to § 2255 claim s). The failure to satisfy either prong of Strickland requires dism issal of the claim and relieves the reviewing court of a duty to consider the other prong. Nichols v. United States, 563 F.3d 240 , 249 (6th Cir. 20 0 9); see also Strickland, 466 U.S. at 697. Petitioner lists various grounds for his ineffective assistance of counsel claim in his Motion, none of which are discussed in his supporting m em orandum . [Civ. Doc. 1 at 4]. Petitioner states that his trial attorney was ineffective in the following ways: he advised Davis not to testify at trial, failed to subpoena a governm ent witness, failed to reveal evidence such as test results, fingerprints, and DNA sam ples, and failed to file unspecified pretrial m atters on Davis’s behalf. [Id.]. Davis presents no explanation or argum ent in support of these purported deficiencies. The Strickland test requires a greater degree of specificity than this to overcom e the “strong presum ption” that the challenged conduct was professionally reasonable. Strickland “requires the defendant to identify specific acts or om issions by counsel that were ‘outside the wide range of professionally com petent assistance.’” Carter v. Bogan, 90 0 F.3d 754 (6th Cir. 20 18) (quoting Strickland, 466 U.S. at 690 ). Petitioner has not m et this standard with regard to his counsel’s purported errors at trial. 4 In his supporting m em orandum , Petitioner argues his counsel was ineffective for another reason: because they failed “to present objections or appeal of the indictm ent’s failure to state the § 4B1.1 enhancem ent for career offender purposes as it was recognized in Alleyne v. United States, 133 S. Ct. 2151 (20 13).” [Civ. Doc. 2 at 4]. The United States Sentencing Guidelines (“USSG”) provide for longer recom m ended sentences for any defendant who is deem ed a “career offender.” To be a career offender, the defendant m ust have at least two prior felony convictions for either a crim e of violence or a controlled substance offense. USSG § 4B1.1(a). Petitioner appears to argue that in order to be sentenced as a career offender, the indictm ent was required to allege the fact of his prior convictions. Petitioner is correct that “[a]ny fact that, by law, increases the penalty for a crim e is an ‘elem ent’ that m ust be subm itted to the jury and found beyond a reasonable doubt.” Alley ne v. United States, 570 U.S. 99, 10 3 (20 13). But unlike statutory sentencing provisions, “[t]he career-offender guidelines, which are triggered by judicial factfinding, do not require a district court to give a defendant a higher sentence, nor do they allow a judge to im pose a harsher sentence that was necessarily unavailable before.” United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 20 14). Accordingly, “a sentencing court m ay use the fact of a defendant’s recidivism to increase his sentence even if the defendant’s prior convictions are neither alleged in the indictm ent nor found by a jury beyond a reasonable doubt.” United States v. Sm ith, 881 F.3d 954, 960 -61 (6th Cir. 20 18) (citing Alm endarez-Torres v . United States, 523 U.S. 224, 239-247 (1998)). Petitioner’s interpretation of Alley ne is foreclosed by binding Sixth Circuit precedent, as well as the continuing viability of Alem endarez-Torres. See Sm ith, 881 F.3d at 960 -61 5 (“Alm endarez-Torres is still good law and will remain so until the Suprem e Court explicitly overrules it.”) (citation om itted). Because Davis’s Alley ne argum ent is m eritless, his trial counsel was not ineffective for failing to raise it. See, e.g., Bennett v. Brew er, 940 F.3d 279, 286 (6th Cir. 20 19) (failure to raise a m eritless claim is not ineffective assistance of counsel). Accordingly, Davis’s ineffective assistance of counsel claim fails. B. H o bbs Act Ro bbe ry as a Crim e o f Vio le n ce Davis next challenges his conviction under 18 U.S.C. § 924(c)(1) for brandishing a firearm in furtherance of a crim e of violence. Section 924(c) provides in relevant part: [A]ny person who, during and in relation to any crim e of violence… uses or carries a firearm , or who, in furtherance of any such crim e, possesses a firearm , shall, in addition to the punishm ent provided for such crim e of violence or drug trafficking crim e… if the firearm is brandished, be sentenced to a term of im prisonm ent of not less than 7 years. 18 U.S.C. § 924(c)(1)(A). Section 924(c)(3) defines a “crim e of violence” as “an offense that is a felony” that (A) has as an elem ent the use, attem pted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another m ay be used in the course of com m itting the offense. 18 U.S.C. § 924(c)(3). Pursuant to § 924(c)(1)(D)(ii), “no term of im prisonm ent im posed on a person under this subsection shall run concurrently with any other term of im prisonm ent im posed on the person, including any term of im prisonm ent im posed for the crim e of violence… during which the firearm was used, carried, or possessed.” Id. Count Four of the indictm ent charged Davis with robbery affecting interstate com m erce in violation of the Hobbs Act, 18 U.S.C. § 1951(a). [Doc. 3 at 2-3]. Count Five of the indictm ent charged Davis with using, carrying, and brandishing a firearm during 6 and in relation to a crim e of violence, specifically, the robbery charged in Count Four. [Id. at 3]. The jury found Davis guilty on both counts. Davis argues that Hobbs Act robbery does not constitute a crim e of violence under the elem ents/ use of force clause of § 924(c)(3)(A). [Doc. 2 at 6-10 ]. The Court can quickly dispense with this argum ent as the Sixth Circuit has clearly held that Hobbs Act robbery is a crim e of violence under the elem ents clause of § 924(c)(3)(A). United States v. Gooch, 850 F.3d 285, 292 (6th Cir. 20 17) (“We join our sister circuits in ruling that Hobbs Act robbery constitutes a crim e of violence.”); United States v. Robinson, 70 8 F. App’x 272, 273 (6th Cir. 20 17) (“Thus, in the Sixth Circuit, Hobbs Act robbery is a crim e of violence by way of Section 924(c)(3)(A).”). These rulings were issued after the cases on which Petitioner relies and are binding on this Court. Petitioner’s rem aining argum ents concern whether Hobbs Act robbery can be a crim e of violence under the residual clause of § 924(c)(3)(B). Since Petitioner’s m otion to vacate, the Suprem e Court of the United States has invalidated the residual clause of § 924(c)(3)(B) as unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2324 (20 19). But this ruling does not help Petitioner. Because Hobbs Act robbery constitutes a crim e of violence under the use of force/ elem ents clause, there is no need to address whether it also falls within the now-invalidated residual clause of the statute. IV. CERTIFICATE OF APPEALABILITY When considering a § 2255 motion, this Court m ust “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Petitioner m ust obtain a COA before he m ay appeal the denial of his § 2255 m otion. 28 U.S.C. § 2253(c)(1)(B). A COA will issue “only if the applicant has m ade a substantial showing of 7 the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For cases rejected on their m erits, a m ovant “m ust dem onstrate that reasonable jurists would find the district court’s assessm ent of the constitutional claim s debatable or wrong” to warrant a COA. Slack v. McDaniel, 529 U.S. 473, 484 (20 0 0 ). To obtain a COA on a claim that has been rejected on procedural grounds, a m ovant m ust dem onstrate “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. Based on the Slack criteria, the Court finds that a COA should not issue in this cause. V. CON CLU SION For the reasons stated herein, Petitioner has failed to establish any basis upon which § 2255 relief could be granted, and his § 2255 m otion will be D EN IED . A certificate of appealability from the denial of his § 2255 m otion will be D EN IED . A separate judgm ent will enter. SO ORD ERED this 18th day of February, 20 20 . _ _ _ _ / s/ Harry S. Mattice, Jr._ _ _ _ HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
