United States District Court, E.D. Virginia, Richmond Division
A. Gibney, United States Judge.
Curtis Davis, a federal inmate proceeding pro se,
submitted this motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence ("§ 2255 Motion,
" ECF No. 71). Davis contends that he experienced
ineffective assistance of counsel in conjunction with his
criminal proceedings. Specifically, Davis demands relief
Claim One: Counsel failed to challenge the delay in promptly
presenting Davis to the Court to answer to the charges, which
violated: (a) Rule 5(a)(1)(A) of the Federal Rules of
Criminal Procedure (id. at 6); (b) the right to
prompt determination of probable cause under the Fourth
Amendment (id at 8) and, (c) the right to due process
under the Fifth Amendment (id.).
Claim Two: Counsel failed "to raise Speedy Trial Clause
violations of the Sixth Amendment." (Id. at
Claim Three: Counsel failed "to object to violations of
Rule 11(c)(1) [of the Federal Rules of Criminal
Claim Four: Counsel failed to sufficiently review the Plea
Agreement with Davis prior to entry of Davis's guilty
plea. (Id. at 22.)
Claim Five: Counsel failed to contact Davis promptly after
the arraignment regarding pretrial motions. (Id. at
Claim Six: Counsel "failed to file any motions in
preparation for trial, nor did counsel investigate or attempt
to discover exculpatory evidence supported by the record at
the urgent prompting of the petitioner." (Id.
Claim Seven: Counsel failed to file a motion to suppress
eyewitness identification, as well as a motion challenging
the application of the Hobbs Act to Davis's case.
(Id. at 25.)
Government has responded, asserting that Davis's claims
lack merit. (ECF No. 77.) Davis has filed a Reply. (ECF No.
79.) For the following reasons, Davis's § 2255
Motion (ECF No. 71) will be DENIED.
30, 2010, Davis was charged in state court with robbery and
firearms charges in Colonial Heights, Virginia, and
Petersburg, Virginia. (Gov't's Resp. 1, ECF No. 77.)
These charges were ultimately nolleprossed. (Id; see
also § 2255 Mot. 3.)
November 12, 2010, a Criminal Complaint was filed in this
Court, charging Davis with possession of a firearm after
having been convicted of a crime punishable by imprisonment
for a term exceeding one year, in violation of 18 U.S.C.
§ 922(g)(1). (Crim. Compl. 1, ECF No. 1.) On January 7,
2011, Davis was "convicted of Felony Grand Larceny in
Fairfax County [and] was sentenced to a term of incarceration
for two years." (Gov't's Resp. 2.)
March 23, 2011, a grand jury charged Davis with two counts of
robbery affecting commerce, in violation of 18 U.S.C. §
1951(a) (Counts One and Three); two counts of using,
carrying, displaying, brandishing, and possessing a firearm
in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c) (Counts Two and Four), and one count of
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1) (Count Five). (Indictment 1-4, ECF
No. 3.) On November 4, 2011, attorney Michael Gunlicks was
appointed to represent Davis. (ECF No. 6.) Davis appeared
before the Court pursuant to a writ of habeas corpus ad
prosequendum for an initial appearance and arraignment
on November 10, 2011. (See ECF Nos. 7,
November 21, 2011, Gunlicks filed a Motion to Suppress,
seeking to suppress statements made by Davis to law
enforcement on July 30, 2010. (ECF No. 9, at 1.) On November
29, 2011, Davis filed a pro se Motion to Appoint
Counsel and Transfer, requesting, inter alia, that
Gunlicks be removed as counsel of record and that Davis be
allowed to waive his right to a speedy trial so that he could
return to Fairfax County to continue serving his State
sentence. (ECF No. 11, at 1; ECF No. 12, at 1.) The
Government responded to the Motion to Suppress on December 8,
2011, asserting that it did not intend to offer Davis's
statements during its case in chief. (ECF No. 13, at 4.) That
same day, the Government filed a Notice of Penalties for
Charged Offenses. (ECF No. 14.) The Notice stated in relevant
Because the defendant has previously been convicted in
Federal Court with violating Title 18, United States Code,
Section 924(c), the next 924(c) is a subsequent conviction.
The penalty, therefore, if he is convicted of Count Two is a
mandatory minimum term of incarceration of 25 years to
life, which term is to run consecutive to any
term of incarceration that may be imposed if convicted of the
associated robbery charge.
If the defendant is also convicted of the 924(c) charge set
forth in Count Four, he again faces a mandatory minimum
term of incarceration of 25 years to life, which term is
to run consecutive to any other term of
Therefore, if the defendant is convicted of both 924(c)
counts as set forth in Counts Two and Four of the Criminal
Indictment, he faces a mandatory minimum term of
incarceration of fifty (50) years, which term is to
run consecutive to whatever term is imposed if he is
convicted of one or both of the robbery charges set forth in
Counts One and Three.
(Id. at 2.) On December 16, 2011, the Court heard
argument on both the Motion to Suppress and Davis's pro
se Motion to Appoint Counsel. (ECF No. 16.) By Order
entered on December 19, 2011, the Court granted Davis's
Motion to Suppress. (ECF No. 17, at 1.) In that same Order,
the Court noted that Davis had "expressed concern about
the time frame in which to file motions in anticipation of
trial." (Id.) The Court therefore granted the
defense a ten-day extension within which to file motions.
(Id.) Davis "advised that this schedule
modification resolve[d] his concerns with his current
counsel." (Id.) The Court also denied
Davis's pro se Motion to Appoint Counsel.
January 13, 2012, Davis entered into a Plea Agreement in
which he agreed to plead guilty to Counts Three and Five of
the Indictment. (Plea Agreement ¶ 1, ECF No. 19.) Under
Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure,
the parties agreed to recommend "a total sentence of 20
years imprisonment on Counts Three and Five ..., consisting
of 20 years on Count Three and 10 years on Count Five to run
concurrently." (Id. ¶ 5.) The Plea
Agreement stated that Davis was "satisfied that [his]
attorney ha[d] rendered effective assistance."
(Id. ¶ 4.)
agreed that "no threats, promises, or representations
ha[d] been made, nor agreements reached, other than those set
forth in writing in th[e] plea agreement, to cause [Davis] to
plead guilty." (Id. ¶ 15.) Davis appeared
before the Court for Rule 11 proceedings that same day. At
the beginning of the proceedings, counsel for the Government
represented that if Davis chose not to plead guilty and go to
trial, he faced a minimum term of 50 years of imprisonment
should he be convicted of Counts Two and Four. (Jan. 13, 2012
Tr. 7-8, ECF No. 32.) The Court recessed to provide Davis
more time to talk to counsel about whether or not he wanted
to go forward with his guilty plea. (Jan. 13, 2012 Tr.
10-13.) After the recess, Gunlicks represented to
the Court that Davis had decided to accept the Plea
Agreement. (Jan. 13, 2012 Tr. 14.) During the Rule 11
proceedings, Davis indicated that he was "satisfied with
the services and advice provided to [him] by [counsel]."
(Jan. 13, 2012 Tr. 19.) He understood that the parties agreed
to recommend to the Court that Davis should receive a
sentence of 20 years of incarceration. (Jan. 13, 2012 Tr.
19-20.) When asked, Davis denied that anyone had made any
other promises or had threatened him in an attempt to have
him plead guilty. (Jan. 13, 2012 Tr. 23.) At the end of the
Rule 11 proceedings, the Court determined that Davis was
"aware of the consequences of the plea" and that
his guilty plea was "knowing and voluntary." (Jan.
13, 2012 Tr. 33.)
on March 9, 2012, Davis filed a pro se Motion to
Withdraw Guilty Plea (ECF No. 22), as well as a Motion to
Appoint New Counsel (ECF No. 24). By Order entered on March
28, 2012, the Court directed counsel for Davis and the
Government to submit briefs "explaining their respective
positions on these motions . . . ." (ECF No. 26, at 1.)
Gunlicks responded that he was "willing and able to
continue representing [Davis]" (ECF No. 28, at 2), but
that the Court should consider granting Davis's request
for new counsel (id. at 3). Gunlicks also
represented that given Davis's request for new counsel,
"it might best further judicial fairness and efficiency
... to appoint new counsel and hold an evidentiary hearing on
[Davis's] allegations regarding the voluntariness of his
plea." (ECF No. 29, at 8.)
Court held a hearing on Davis's Motion to Appoint New
Counsel on April 17, 2012. At that time, Gunlicks indicated
that Davis primarily wished to withdraw his guilty plea based
upon his belief that the Court had violated Rule 11(c)(1) of
the Federal Rules of Criminal Procedure by coercing Davis
into pleading guilty on January 13, 2012. (Apr. 17, 2012 Tr.
5, ECF No. 56.) Davis also represented that he
"wholeheartedly believe[d] Mr. Gunlicks'
representation . . . ha[d] fallen below objective standards
of reasonableness, without a doubt." (Apr. 17, 2012 Tr.
10.) Davis believed that Gunlicks had been "unreliable,
unresponsive, [and] inattentive to his client's
prompting, and did not respect deadlines of the court."
(Apr. 17, 2012 Tr. 11.) The Court recognized that Davis had
been "complaining about Mr. Gunlicks" from the
beginning of his criminal proceedings. (See Apr. 17,
2012 Tr. 17-18.) The Court explained that "the level of
communication between Mr. Davis and Mr. Gunlicks has reached
the stage where they just ...