U.S. v. Davis

Full title: UNITED STATES OF AMERICA, Plaintiff, v. PAUL EDWARD DAVIS…

Court: United States District Court, D. Kansas

Date published: Mar 19, 2003

Case Nos. 99-40091-JAR, 02-3174-JAR (D. Kan. Mar. 19, 2003)

Opinion

Case Nos. 99-40091-JAR, 02-3174-JAR

March 19, 2003

MEMORANDUM AND ORDER DENYING MOTION TO CHALLENGE EXCEPTANCE OF RESPONSIBILITY — MOTION TO MODIFY A SENTENCE

JULIE A. ROBINSON, District Judge.

This case comes before the Court upon Defendant/Petitioner Paul Edward Davis's pro se "Motion to Challenge Exceptance of Responsibility — Motion to Modify A Sentence under Rule 3535(b) Jurisdiction 3536(b)" (Doc. 90). The Court¹ has thoroughly reviewed Davis's pleadings, and the government's response to the motion (Doc. 96), as well as the entire record. For the following reasons, the Court concludes that Davis is not entitled to relief and the Court therefore denies his motion and dismisses this action.

1 This matter has been assigned to the undersigned Judge, because the Honorable Dale E. Saffels, who sentenced Davis, is now deceased.

I. PROCEDURAL HISTORY

In a Superseding Indictment (Doc. 34) filed on March 16, 2000, petitioner Paul Edward Davis was charged with distribution and possession with intent to distribute crack cocaine. Davis pleaded not guilty and went to trial. After the government presented its evidence, Davis testified. Davis admitted that he had distributed or attempted to distribute drugs and asserted that the government had entrapped him. The jury returned a verdict (Doc. 58) of guilty on all five counts of the Superseding Indictment. Judge Dale E. Saffels sentenced (Doc. 71) Davis to 210 months of imprisonment. Davis prosecuted a direct appeal; on July 16, 2001, the Tenth Circuit affirmed the conviction and sentence (Doc. 87).² After the Tenth Circuit denied Davis's motion for a rehearing en banc, Davis filed a petition for writ of certiorari, which was denied. Davis then timely filed this motion under 28 U.S.C. § 2255.

2 United States v. James, 257 F.3d 1173 (10th Cir. 2001).

II. ANALYSIS

A petitioner can obtain relief under § 2255 on the basis of an error of constitutional magnitude which had a substantial and injurious effect or influence on the verdict or sentence.³ A petitioner can also obtain relief on the basis of non-constitutional error, by showing a fundamental defect in the proceedings that resulted in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process.⁴

3 Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).

4 Reed v. Farley, 512 U.S. 339, 353-354 (1994).

Davis's motion is difficult to read and comprehend. Construing Davis's pro se documents liberally,⁵ and reading the motion with the goal of recognizing every possible argument, ground or theory raised, the Court finds that Davis raises seven grounds for relief. Because the motion and the record conclusively show that none of these grounds has any palpable merit, the Court summarily dismisses this § 2255 petition.⁶

5 Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).

6 United States v. Marr, 856 F.2d 1471, 1472-723 (10th Cir. 1988).

A. Relief under Rule 35(b), Rule 36, Rule 3535, Rule 3536, Title 18 United States Code §§ 3535 and 3536.

Davis cites to several rules and statutes that simply do not exist: Rules 3535 and 3536, and 18 United States Code § 3535 and 3536. He also cites to Rule 36(b), presumably of the Federal Rules of Criminal Procedure, which allows for correction of clerical mistakes in judgments, orders and parts of the record. But, Davis does not identify any such clerical mistakes in this record. Moreover, clerical mistakes are not a ground for relief under 28 U.S.C. § 2255.

Rule 35 of the Federal Rules of Criminal Procedure allows for a "Reduction of Sentence for Substantial Assistance." A motion for substantial assistance must be initiated by the government; and the Court cannot give a defendant any relief under the Rule, absent motion by the government. Davis does not allege, nor does the record show why, Davis would be entitled to any relief under this Rule. In fact, as the Tenth Circuit noted in its Memorandum Opinion on Davis's direct appeal,⁷ Davis "did not confess, cooperate with the police, or engage in conduct that would otherwise demonstrate an acceptance of responsibility prior to trial." Nothing in his motion, pleadings, or the record asserts that Davis cooperated after trial either. In neither the sentencing memorandum (Doc. 68) filed by his counsel, nor in the colloquy at sentencing, is there any mention of Davis cooperating with or assisting law enforcement.

7 James, 257 F.3d at 1184-85.

B. Acceptance of Responsibility

Davis filed an objection to the Presentence Report, and his counsel argued at sentencing, that he should receive credit for acceptance of responsibility. The court overruled Davis's objection, stating its reasons in a Memorandum Order (Doc. 69): Davis had denied his guilt at all stages before trial, went to trial, did not stipulate to any element of the offenses, caused the government to prove every element, and only after the government had rested, did Davis admit that he had committed the offenses, but testified that he had been entrapped. Davis raised this ground on his direct appeal. The Tenth Circuit affirmed, explaining that going to trial and raising an entrapment defense is not always fatal to credit for acceptance of responsibility. But, those defendants who have received credit for acceptance of responsibility, did not deny guilt prior to trial and did not force the government to prove every element of the offense.⁸

8 Id.

Moreover, because this issue was raised in Davis's direct appeal, it may not be raised now. Absent an intervening change of law or newly discovered evidence, a petitioner may not raise an issue that has been addressed on direct appeal.⁹ Davis asserts no newly discovered evidence, nor any intervening change in the law.

9 United States v. Cook, 997 F.2d 1312, 1320 n. 6 (10th Cir. 1993); United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994).

C. During the Presentence interview, the Probation Officer misinformed Davis that he was convicted of four counts, when he had actually been convicted of five counts.

Davis contends that he is entitled to an "Exceptance of Responsibility"[sic], a departure and a sentence of no more than five years, all because the probation officer told him that he was accused of four rather than five counts. Of course, the probation officer has no responsibility to advise Davis of the charges and verdict. And, Davis does not show how this would warrant relief under the limited grounds for relief under § 2255.

If in fact the probation officer misinformed Davis, this conversation would have occurred after Davis had been charged, arraigned, tried and convicted of all five counts of the Superseding Indicment. Davis does not explain how any such statement misled him. The record illustrates that Davis, through counsel and through court proceedings, should have been aware that he was charged and convicted of five counts. Davis was represented by counsel at all stages of the criminal proceedings. At the March 20, 2000 motions hearing, Davis's counsel stated that he had just been charged in a superseding indictment "that adds two counts."(Doc. 77, Tr. pp. 5). Davis was arraigned on the superseding indictment by a magistrate judge on March 20, 2000 (Doc. 37). At the commencement of voir dire, the entire five count superseding indictment was read to the potential jurors (Doc. 78, Tr. pp. 7-9). The jury returned a verdict of guilty on all five counts (Doc. 58). And, in Davis's sentencing memorandum (Doc. 68), his counsel discussed the penalties on the five counts.

D. There was false information in the Presentence Report.

Davis does not identify the alleged false information. Perhaps he is asserting that the Presentence Report stated that he was charged with 4 counts, instead of 5. Whether that is the alleged false information, or whether it is some other unspecified statement, Davis had the opportunity to object to the presentence report. In fact, he filed six objections to the presentence report and fails to explain or show why he did not raise this particular objection at that time.

E. Davis was denied his Fifth Amendment right to counsel by the ineffective assistance of his counsel, who failed to ask to "suppress" Davis's statements to the probation officer.

Davis contends that he received ineffective assistance of counsel because his counsel should have sought suppression of statements Davis made to the probation officer during the presentence interview. Of course, to demonstrate ineffective assistance of counsel, Davis must show both prongs of the test in Strickland v. Washington:¹⁰ (1) that counsel's performance was below an objective standard of reasonableness; and (2) that such deficient performance prejudiced the defense by affecting the outcome of the proceeding. Davis cannot show either prong, much less both prongs of the Strickland test. Counsel's failure to seek "suppression" of Davis's statements to the probation officer could hardly be deficient; such a motion would have no basis in law. Furthermore, Davis neither asserts nor shows how not having "suppression" of his statements to the probation officer prejudiced him.

10 466 U.S. 668, 687-690, reh'g denied, 467 U.S. 1267 (1984).

F. Davis was denied his right to have counsel present during the presentence interview.

Davis also contends that he was denied his right to have counsel present during the presentence interview. The presentence report reflects that Davis was interviewed in the presence of his counsel, at the time the probation officer initially interviewed Davis (PSR, p. 9 ¶ 22). In any case, a presentence interview is not a critical stage of a criminal proceeding to which a defendant's Fifth Amendment right to counsel attaches.¹¹

11 United States v. Washington, 11 F.3d 1510, 1517 (10th Cir. 1993).

G. The Court should not have recommended that the Bureau of Prisons designate Davis to a prison outside of Kansas.

Finally, Davis complains that the district court should not have recommended that he be placed in a Bureau of Prisons facility outside of Kansas. Complaints about the place of incarceration are not cognizable under § 2255. And, any recommendation by the court, is merely a recommendation. The court has no power or authority to direct the Bureau of Prisons to designate an inmate to any particular facility. Moreover, at sentencing, Davis spoke on his own behalf and asked to be designated to a prison outside of Kansas: "But I would like to get out of Kansas, because I don't want to compete with Kansas people." (Doc. 80, Tr. p. 19). The court obliged this request by making such a recommendation.

IT IS THEREFORE ORDERED that the Motion to Challenge Exceptance of Responsibility — Motion to Modify A Sentence under Rule 3535(b) Jurisdiction 3536(b) IS DENIED.