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United States v. Davis

United States District Court, E.D. Virginia, Richmond Division

April 11, 2017



          John A. Gibney, United States Judge.

         Francis 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).[1] Davis contends that he experienced ineffective assistance of counsel[2] in conjunction with his criminal proceedings. Specifically, Davis demands relief because:

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)[3] and, (c) the right to due process under the Fifth Amendment (id.).[4]
Claim Two: Counsel failed "to raise Speedy Trial Clause violations of the Sixth Amendment."[5] (Id. at 6.)
Claim Three: Counsel failed "to object to violations of Rule 11(c)(1) [of the Federal Rules of Criminal Procedure]." (Id.)
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 24.)
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. Sit 24-25.)
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.)

         The 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.


         On July 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.)

         On 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.)

         On 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, 8.)[6]

         On 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 part:

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 incarceration imposed.
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. (Id.)[7]

         On 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.)

         Davis 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.)[8] 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.)

         Subsequently, 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.)

         The 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 ...

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