Opinion
7:23-CV-00177-FL 7:19-CR-00183-FL
10-31-2023
Jerome Davis, Petitioner, v. United States, Respondent.
MEMORANDUM & RECOMMENDATION
ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE
Petitioner Jerome Davis, proceeding under 28 U.S.C. § 2255, seeks to vacate the 240-month sentence he received after pleading guilty to several drug and firearm offenses. Davis contends that his appellate counsel provided constitutionally deficient representation by failing to argue that his prior North Carolina drug conviction did not qualify as a controlled substance offense for purposes of a career-offender enhancement under the federal sentencing guidelines. He claims circuit precedent at the time of his appeal would have supported that argument. Davis now asks that the court vacate the judgment and requests he be re-sentenced without the career offender enhancement.
The court referred this matter to the undersigned to issue a Memorandum and Recommendation (“M&R”) on Davis's motion and the United States' motion to dismiss. After reviewing the docket, and considering the parties' arguments, the undersigned concludes that Davis is not entitled to the relief he seeks. While this matter has been pending, the Fourth Circuit has rejected the argument he says his attorney should have raised. Since Davis's argument lacked merit his attorney's failure to make it cannot amount to ineffective assistance of counsel. Thus, the undersigned recommends that the court deny Davis's motion to vacate (D.E. 71) and grant the government's motion to dismiss (D.E. 77).
I. Background
In November 2019, a federal grand jury returned a five-count indictment against Davis charging him with several drug and gun offenses. Indictment, D.E. 1. Davis eventually pleaded guilty to all five counts without a plea agreement. See Arraignment Minute Entry, D.E. 30.
In April 2021, the United States Probation Office (“UPSO”) filed a Presentence Investigation Report. D.E. 44. The PSR found that Davis had a total offense level of 29 and fell into criminal history category VI. Id. ¶¶ 32, 70. That combination, along with certain other sentencing requirements, yielded an advisory guideline range of 211 to 248 months in prison. Id. ¶ 73.
But the PSR ultimately suggested that the court sentence Davis to a longer prison term. That recommendation came from the Probation Office's conclusion that Davis qualified as a career offender under the sentencing guidelines due to his criminal history. According to the Probation Office Davis's prior convictions in North Carolina for selling and delivering controlled substances and his conviction in Florida for resisting an officer with violence supported this conclusion. Id. ¶ 67. The career offender enhancement raised Davis's advisory guideline range to 262 to 327 months in prison. Id. ¶ 73.
The court held Davis's sentencing hearing shortly after receiving the PSR. Sentencing Tr., D.E. 61. At that hearing, Davis objected to the career offender designation. He argued that his prior Florida conviction should not count as a crime of violence. Id. at 3:19-7:16. The court overruled the objection, but after applying a downward departure, it sentenced Davis to 240 months in prison. Id. at 40:5-20. Davis appealed the court's judgment in early May 2021. Not. of Appeal, D.E. 55.
Davis also objected to the amount of drugs and his aggravated role based on the claim he directed his girlfriend to be a party to illegal conduct. Id. at 7:20-27:9. The court sustained both objections, but the sentencing guideline remained unchanged. Id. at 31:57-32:02.
While Davis's appeal was pending, but before he filed his opening brief, the Fourth Circuit Court of Appeals decided United States v. Campbell, 22 F.4th 438 (4th Cir. 2022). In that case, the Court of Appeals concluded that West Virginia's law criminalizing delivery of a controlled substance was not a controlled substance offense under the federal sentencing guidelines. Id. at 449. The appellate court found that “the least culpable conduct criminalized by the West Virginia statute is an attempt to deliver a controlled substance.” Id. at 442. Then, after reviewing the language of the sentencing guidelines and its commentary, the panel reached “the conclusion that an attempt offense, and so the West Virginia conviction at issue here, is not a ‘controlled substance offense.'” Id. at 443-44.
Yet Davis's opening brief to the Court of Appeals only raised the issue of whether his Florida conviction for resisting an officer with violence qualified as a crime of violence. United States v. Davis, No. 21-4217, 2022 WL 12338485, at *1 (4th Cir. Oct. 21, 2022); Mem. in Supp. of Mot. to Vacate at 2, D.E. 71-2.
But after the parties completed their briefing, Davis asked to submit a supplemental brief. Davis, 2022 WL 12338485, at *1; Mem. in Supp. of Mot. to Vacate at 2-3. That brief sought to challenge whether, after Campbell, “his North Carolina drug convictions count as a ‘controlled substance offense' for purposes of the career-offender provision.” Davis, 2022 WL 12338485, at *1.
The Fourth Circuit affirmed the judgment against Davis. Id. at *3. The court held that the resisting an officer with violence conviction qualified as a crime of violence for purposes of the career offender enhancement. Id. at *2-3.
The court also rejected his attempt to file a supplemental brief. Id. at *3. The appellate court explained that he abandoned his Campbell-based argument by not including it in his opening brief. Id. (citing United States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004)).
In March 2023, Davis moved to vacate his sentence under 28 U.S.C. § 2255. Mot. Vacate, D.E. 71. Davis claims that his lawyer provided constitutionally ineffective assistance by failing to include a Campbell-based argument against his career offender status in the opening brief. Id.
According to Davis, if his lawyer had made the Campbell-based argument “it is more likely than not” his prior drug convictions would not have qualified as a controlled substance offense. Id. If he won the appeal, his case would have been remanded for re-sentencing without the career offender enhancement. Id. And without that enhancement, Davis's advisory sentencing guideline range would have decreased substantially. PSR, ¶ 73, D.E. 44.
In his motion to vacate Davis provides a range of 111 to 123 months. Mot. to Vacate at 4. There is no report filed reflecting this sentence recommendation.
One month after Davis moved to vacate, the Fourth Circuit decided United States v. Groves, 65 F.4th 166 (4th Cir. 2023). The court addressed whether a federal drug distribution conviction under 21 U.S.C. § 841(a) is a controlled substance offense that can support a career offender enhancement. Id. at 172-74. Groves argued that the federal statute defined “deliver” similarly to the West Virginia statute in Campbell, and thus the court had to find that his federal conviction could not support a career offender enhancement. Id. at 172.
But the court differentiated the two regimes. Id. at 172-74. It noted that federal law contains a separate statute criminalizing drug-related attempt offenses. Id. at 172. And adopting Groves's argument would render that statute superfluous and “absurdly exclude . . . quintessential drug trafficking crimes . . . from treatment as a ‘controlled substance offense'” under the Guidelines. Id. at 173. So it held that his federal conviction could support a career offender enhancement. Id. at 174.
In June 2023, the United States asked this court to dismiss Davis's motion to vacate. Mot. to Dismiss, D.E. 77. The government argued that Groves required a ruling in its favor because the language of the North Carolina statute Davis violated tracks the language in the federal statute in that case. Mem. in Supp. of Mot. to Dismiss at 12-13, D.E. 78. So, according to the United States, Davis's claim fails because he cannot demonstrate a reasonable probability that he would have succeeded on appeal. Id. at 13-14.
Then, one month later, in United States v. Miller, 75 F.4th 215, 230 (4th Cir. 2023), the Fourth Circuit addressed whether, after Campbell and Groves, a conviction under North Carolina law for selling or delivering a controlled substance qualified as a controlled substance offense under the guidelines. . The court found that “like the federal statutory scheme at issue in Groves, North Carolina separately criminalizes attempt offenses from drug offenses.” Id. And it concluded that “construing North Carolina's controlled-substance-delivery statute not to be a controlled substance offense under the Guidelines would be” inconsistent with the Sentencing Commission's intent. Id. So the appellate court held that a conviction under North Carolina General Statutes § 90-98 qualified as a controlled substance offense under the Guidelines. Id. at 230-31.
Both Davis and the government filed additional briefs after Miller. Davis argues the court should only rely on Campbell in assessing his attorney's performance. Surreply to Mot. to Dismiss D.E. 84. The government maintains that Miller compels a ruling against Davis because it shows that he was not prejudiced by his attorney's conduct. Reply in Supp. of Mot. to Dismiss, D.E. 83.
II. Discussion
Davis claims his attorney rendered ineffective assistance by failing to challenge the career offender enhancement based on Campbell in his opening appellate brief. Mot. to Vacate at 4. He argues this failure resulted in the abandonment of a meritorious argument that would have led him to receive a lesser sentence. Id. But even if his attorney failure to make the argument was objectively unreasonable, Davis was not prejudiced by this failure because the Fourth Circuit has since rejected the very argument he wanted to raise.
Davis says that his appellate attorney violated his constitutional rights by providing ineffective assistance of counsel. The Sixth Amendment explains that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI. An attorney violates a defendant's right to assistance of counsel if he fails to provide adequate legal assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984). The right to counsel extends to all critical stages of a criminal proceeding, including plea negotiations, trial, sentencing, and appeal. See, e.g., Missouri v. Frye, 566 U.S. 134, 140 (2012); Lafler v. Cooper, 566 U.S. 156, 164-65 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001).
In Strickland, the Supreme Court held that a petitioner must satisfy a two-pronged test to establish an ineffective assistance claim. 466 U.S. at 686-87. First, the petitioner must show that his attorney's performance fell below an objective standard of reasonableness. Id. at 688. In assessing reasonableness, courts must be “highly deferential” to counsel's performance and must make every effort to “eliminate the distorting effects of hindsight[.]” Id. at 689. And courts cannot expect “defense counsel to pursue every claim or defense, regardless of its merit, viability or realistic chance of success.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In sum, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Strickland, 466 U.S. at 689.
Second, the petitioner must show that he was prejudiced by his attorney's unreasonable performance. Id. at 693. To establish prejudice, a petitioner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is one “sufficient to undermine confidence in the outcome.” Id. And the difference in outcome as a result of the unprofessional errors must have harmed the petitioner. Id. at 693.
Whatever the outcome of the first prong of the Strickland test, Davis cannot prevail on the second, prejudice-focused prong. He claims that after Campbell, his multiple convictions under North Carolina law for selling or delivering controlled substances do not qualify as controlled substance offenses for purposes of a career offender enhancement under the Guidelines. When faced with this argument in Miller, the Fourth Circuit rejected it. 75 F.4th at 230-31. And it has consistently applied Miller when the question resurfaced at that court. United States v. Shine, No. 22-4143, 2023 WL 5928158 (4th Cir. Sept. 12, 2023); United States v. Scotland, No. 22-4630, 2023 WL 5745361 (4th Cir. Sept. 5, 2023). So Davis cannot show that had his attorney made this argument on appeal that it would have resulted in a different outcome. Thus he was not prejudiced by his attorney's actions and his ineffective assistance claim fails.
Davis argues that the court should disregard Miller and focus instead on the state of the law when his attorney filed the opening brief. He says that whether his attorney's performance was inadequate must be determined based on the state of the law when his attorney acted. Surreply to Mot. to Dismiss at 1-2.
But this argument misses the point. Miller precludes Davis from establishing that he was prejudiced by his appellate counsel's performance. And that fact dooms his claim, no matter what conclusion the court would reach on Strickland's performance-based prong. Davis has pointed to no reason why the court should disregard Miller when assessing Strickland's prejudice-focused prong. And the undersigned's independent research establishes that it would be inappropriate to do so. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (rejecting an attempt to apply the rule of contemporary assessment to Strickland's prejudice prong). Thus Davis cannot prevail on his ineffective assistance claim.
III. Conclusion
For the reasons discussed above, the district court should deny Davis's motion to vacate his sentence (D.E. 71) and grant the government's motion to dismiss (D.E. 77).
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.