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United States v. Davis

United States District Court, D. Montana, Missoula Division

April 27, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
JOHN STEWART DAVIS, Defendant/Movant.


          Dana L. Christensen, Chief Judge United States District Court.

         This 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.

         On 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.

         I. Preliminary Review

         Before 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.

         II. Background

         A grand 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.

         Davis 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.

         The 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 7:7-11.

         Davis's 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.

         Davis 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).

         III. Claims and Analysis

         Davis 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 addressed.

         Claims 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.

         A. Voluntary Character of Davis's Guilty Plea

         Many of 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)).

         1. Defense Proffers and Bargaining

         Davis 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).

         Neither prong of the Strickland test is met. This claim is denied.

         2. Sufficiency of the Indictment

         Davis claims the indictment was defective in two respects.

         a. 22 Firearms

         Davis 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.

         The 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).

         Although 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 denied.

         b. Overbreadth

         Davis 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.

         "When 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).

         The 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 himself.

         c. Conclusion

         The indictment was not fatally defective, so the fact counsel did not challenge it does not mean counsel's performance was unreasonable. Davis ...

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