United States District Court, D. Montana, Missoula Division
ORDER DENYING § 2255 MOTION, AND DENYING
CERTIFICATE OF APPEALABILITY
L. Christensen, Chief Judge United States District Court.
case comes before the Court on Defendant/Movant Davis's
motion to vacate, set aside, or correct his sentence,
pursuant to 28 U.S.C. § 2255. Davis is a federal
prisoner proceeding pro se.
February 13, 2018, the United States was required to file all
written proposed plea agreements and other writings, such as
e-mails, evidencing proposed terms. The United States
complied on February 22, 2018. Davis was given an opportunity
to respond. On March 16, 2018, he stated that he received the
proposed agreements in the course of the underlying criminal
case. See Resp. to Order (Doc.
64)at 1 ¶¶ 1-2.
the United States is required to file an answer, the Court
must determine whether "the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief." 28 U.S.C. § 2255(b);
see also Rule 4(b), Rules Governing Section 2255
Proceedings for the United States District Courts. A
petitioner "who is able to state facts showing a real
possibility of constitutional error should survive Rule 4
review." Calderon v. United States Dist. Court,
98 F.3d 1102, 1109 (9th Cir. 1996)
("Nicolas") (Schroeder, C.J., concurring)
(referring to Rules Governing § 2254 Cases). But
"it is the duty of the court to screen out frivolous
applications and eliminate the burden that would be placed on
the respondent by ordering an unnecessary answer."
Advisory Committee Note (1976), Rule 4, Rules Governing
§ 2254 Cases, cited in Advisory Committee Note
(1976), Rule 4, Rules Governing § 2255 Proceedings.
jury indicted Davis on one count of dealing in firearms
without a license, a violation of 18 U.S.C. §
922(a)(1)(A) (Count 1); three counts of unlawfully
transferring firearms out of state, a violation of 18 U.S.C.
§ 922(a)(5) (Counts 2, 3, and 4); one count of
possessing firearms with obliterated serial numbers, a
violation of 18 U.S.C. § 922(k) (Count 5); four counts
of possessing, manufacturing, or transferring unregistered
firearms, a violation of 26 U.S.C. §§ 5861(a), (d),
and (e) (Counts 6, 7, 8, and 10); and one count of possessing
and transferring a machine gun, a violation of 18 U.S.C.
§ 922(o) (Count 9). There was also a forfeiture
allegation. See Indictment (Doc. 1) at 2-8.
moved to change his plea to guilty on Counts 1, 8, and 10.
Although there was no written plea agreement, the United
States agreed to dismiss the other counts at sentencing.
Davis pled guilty in open court on June 20, 2016.
sentencing hearing began at 10:30 a.m. Davis contested
forfeiture of some firearms. A few hours' recess was
called so that either the parties could reach an agreement or
witnesses could be brought in to testify at a forfeiture
hearing. During the recess, the parties agreed that 62
Remington rifles would be returned to Davis's brothers
and 81 other firearms would be judicially forfeited. Two
hundred seventeen firearms were identified as having been
administratively forfeited by the ATF. See
Stipulation (Doc. 36); Unopposed Mot. for Forfeiture (Doc.
41); Order (Doc. 44). Fifty-four of the firearms, including
44 that were consigned to Davis for sale, were returned to
innocent owners. See Sentencing Tr. (Doc. 49) at
advisory guideline range was 97 to 121 months. See
Id. at 23:22-26:15. The Court rejected defense
counsel's requests for departures under the guidelines
but varied downward under 18 U.S.C. § 3553(a). See
Id. at 40:20-41:12. Davis was sentenced to serve 48
months in prison, to be followed by three years'
supervised release. See Id. at 50:2-10; Judgment
(Doc. 45) at 2-3.
did not appeal. His conviction became final on October 28,
2016. See Gonzalez v. Thaler, 565 U.S. 134, 150
(2012). He timely filed his § 2255 motion on September
6, 2017. See 28 U.S.C. § 2255(f)(1);
Houston v. Lack, 487 U.S. 266, 276(1988).
Claims and Analysis
alleges that many errors occurred and that counsel was
ineffective for committing them or failing to avoid or
mitigate them. His claims are reorganized here, but all are
of ineffective assistance of counsel generally are governed
by the standards of Strickland v. Washington, 466
U.S. 668 (1984). At this stage of the proceedings, Davis must
allege facts sufficient to support an inference (1) that
counsel's performance fell outside the wide range of
reasonable professional assistance, id. at 687-88,
and (2) that there is a reasonable probability that, but for
counsel's unprofessional performance, the result of the
proceeding would have been different, id. at 694.
Voluntary Character of Davis's Guilty Plea
Davis's claims "attack the voluntary and intelligent
character of the guilty plea, " Tollett v.
Henderson, 411 U.S. 258, 267 (1973), by identifying
various instances in which counsel's assistance was
ineffective. The Court notes that none of Davis's claims
asserts a legal reason to believe he had "a right not to
be haled into court at all." See Class v. United
States, __ U.S. __, 138 S.Ct. 798, 803 (2018) (quoting
Blackledge v. Perry, 417 U.S. 21, 30 (1974)).
Defense Proffers and Bargaining
claims counsel was ineffective because he conceded
Davis's guilt early on. Not yet aware that the grand jury
had returned an indictment, counsel wrote a letter to the
prosecutor in October 2015, suggesting the parties agree to
defer prosecution. See Br. in Supp. of § 2255
Mot. (Doc. 54) at 12-13 (referring to Def. Sentencing Mem.
Ex. A (Doc. 33-1) at 2-3, cited in Br. in Supp. at
12). Counsel's letter was an offer to compromise. Such
offers are common, reasonable, and not prejudicial. They are
not admissible to establish a client's guilt.
See Fed. R, Evid. 408(a), 410(a)(4).
prong of the Strickland test is met. This claim is
Sufficiency of the Indictment
claims the indictment was defective in two respects.
claims that the indictment charged "violations of
Federal law with respect to 22 firearms (alleged in the
indictment)." Br. in Supp. (Doc. 54) at 11. He infers
that only those firearms could be forfeited.
indictment fairly notified Davis the United States would seek
criminal forfeiture. The indictment was not required to
specify the property to be forfeited. See Fed. R.
Crim. P. 32.2(a).
further specificity was not required, the grand jury attached
to the indictment a list of 349 firearms. See
Indictment (Doc. 1) at 9-22. By its terms, the indictment
sought forfeiture of "any firearms and ammunition
involved in the commission of the offenses in this
indictment, including, but not limited to, the firearms
listed in the criminal counts of this Indictment and the
firearms and ammunition in the attached list seized from the
defendant on July 28, 2015." Indictment (Doc. 1) at 7
¶ 2 (internal formatting omitted and punctuation
altered). Most of the seized firearms were administratively
forfeited. Others were judicially forfeited by order issued
on an unopposed motion at the time of sentencing. Any claim
that the indictment deprived Davis of notice or an
opportunity to contest forfeiture is meritless. This claim is
also claims the indictment was "ridiculously overbroad
and impossible to defend" because Count 1 alleged he
dealt in firearms without a license to do so "on or
about and before 2014 and continuing until the end of July
2015" in three counties in Montana "and
elsewhere." See Br. in Supp. at 10. Davis also
objects that the United States did not specify "which
firearms" it was "accusing Davis of dealing without
a license." Id. at 10-11.
read in its entirety, construed according to common sense,
and interpreted to include facts which are necessarily
implied, " an indictment must include "adequate
factual detail" to allow a defendant to prepare a
defense. See United States v. Livingston,
725 F.3d 1141, 1148 (9th Cir. 2013) (quoting, in part,
United States v. Givens, 161 F.2d 574, 584 (9th Cir.
1985)) (internal quotation marks omitted).
indictment was not required to allege any specific county,
see Fed. R. Crim. P. 7; United States v.
Mendoza, 108 F.3d 1155, 1156 (9th Cir. 1997); Carbo
v. United States, 314 F.2d 718, 733 (9th Cir. 1963), so
identification of three counties contributed to the factual
detail of the charge. The opening date of the time frame was
vague, but time was not an element of the crime, so lack of
specificity regarding a beginning date did not omit an
element. See United States v. Laykin, 886 F.2d 1534,
1543 (9th Cir. 1989). The grand jury found probable cause to
believe Davis dealt in 349 firearms, each of which was
individually identified. Davis could defend the case by, for
example, showing he had a license or showing that he was not
engaged in the business of buying or selling the firearms in
Attachment A. Davis does not suggest he had a license to deal
in some of the firearms but not others. Count 1 provided
"adequate factual detail" to allow Davis to defend
indictment was not fatally defective, so the fact counsel did
not challenge it does not mean counsel's performance was
unreasonable. Davis ...