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United States v. Davies

United States District Court, W.D. Pennsylvania

April 17, 2015

UNITED STATES OF AMERICA
v.
ROBERT DAVIES No. 13-845

OPINION

JOY FLOWERS CONTI, Chief District Judge.

I. Introduction

Pending before the court is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (the "§ 2255 motion") (ECF No. 110), motion to dismiss for lack of jurisdiction (ECF No. 121), motion to appoint counsel (ECF No. 123), motion to expedite (ECF No. 125), motion for leave of court to supplement the § 2255 motion (ECF No. 172), and a redacted version of the motion for leave of court to supplement the § 2255 motion (ECF No. 179) filed by petitioner Robert Davies ("petitioner" or "Davies"). After review of the foregoing motions and other submissions filed by petitioner (ECF Nos. 113, 114, 120, 122, 124, 126, 127, 128, 131, 172, 178, 179), the submissions filed by the government (ECF 111, 130, 174), and other matters of record, the court will deny petitioner's § 2255 motion (ECF No. 110), deny the motion to dismiss the indictment (ECF No. 121), deny the motion for leave of court to supplement the § 2255 motion, deny as moot the motion to appoint counsel (ECF No. 123), and deny as moot the motion to expedite (ECF No. 125), for the reasons set forth below.

II. Procedural History

On December 18, 2007, a federal grand jury returned a one-count indictment charging petitioner with knowingly traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with another person, as defined in 18 U.S.C. § 2423(f)(1), in violation of 18 U.S.C. § 2423 (b) and (e). (ECF No. 14.) On May 27, 2009, petitioner pleaded guilty to count one of the indictment. On October 16, 2009, petitioner-after spending nineteen months incarcerated-was sentenced to a term of imprisonment of time served and a lifetime term of supervised release, with all conditions of release outlined. (ECF Nos. 75, 76, 79.)

On February 5, 2010, petitioner filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (the "first § 2255 motion") (ECF No. 85) and a brief in support of that motion (ECF No. 86.) On April 5, 2010, the government filed its response in opposition to petitioner's first § 2255 motion. (ECF No. 96) On July 23, 2010, the court denied petitioner's first § 2255 motion because the record showed clearly that petitioner voluntarily waived his right to attack collaterally his sentence. (ECF No. 103.) On the same day, petitioner appealed the court's decision denying his first § 2255 motion to the Court of Appeals for the Third Circuit. (ECF No. 106.) On November 15, 2010, the Court of Appeals for the Third Circuit denied petitioner's application for a certificate of appealability and motion to expedite and for summary action. (ECF No. 108.) The court of appeals wrote:

The foregoing application for a certificate of appealability is denied because Appellant has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). For substantially the reasons given by the District Court, Appellant has not shown that jurists of reason would debate the District Court's finding that his collateral waiver was knowing and voluntary. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); United States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008). Nor has he shown that jurists of reason would debate the District Court's finding that enforcement of the collateral waiver would not work a miscarriage of justice. See Mabry, 536 F.3d at 237. In light of our disposition, Appellant's motion to expedite and for summary action is denied.

(ECF No. 108 at 1-2.)

On June 21, 2013, petitioner filed the § 2255 motion currently pending with court. (ECF No. 110). On August 5, 2013, the government filed its response in opposition to petitioner's § 2255 motion. (ECF No. 111.) On August 12, 2013, petitioner filed a reply to the government's response in opposition. (ECF No. 113.) On the same day, petitioner filed an amended exhibit to his reply. (ECF No. 114.) On October 8, 2013, petitioner filed an erratum to exhibit G to his reply. (ECF No. 120.)

On December 6, 2013, petitioner filed a motion to dismiss the indictment. (ECF No. 122.) On January 2, 2014, petitioner filed a motion to appoint counsel and a brief in support of that motion. (ECF Nos. 123, 124.) On the same day, petitioner filed a motion to expedite disposition and brief in support of the motion. (ECF Nos. 125, 126.) On January 3, 2014, petition filed proposed orders with respect to his motion to expedite and motion to appoint counsel. (ECF Nos. 127, 128, 129.) On January 29, 2014, the government filed an omnibus response to petitioner's motions. (ECF No. 130.) On the same day, petitioner filed a reply to the government's response. (ECF No. 131.) On March 17, 2015, petitioner filed a motion for leave of court to supplement his § 2255 pleading. (ECF No. 172.) On April 1, 2015, the government filed a response in opposition to petitioner's motion. (ECF No. 174.) On April 13, 2015, petitioner filed a reply to the government's response in opposition and a redacted version of his motion for leave to supplement the § 2255 motion. (ECF Nos. 178, 179.)

Petitioner's motions are now ripe to be decided by the court.

III. The § 2255 Motion (ECF No. 110)

A. Standard of Review

A district court is required to hold an evidentiary hearing on a motion to vacate sentence filed pursuant to 28 U.S.C. § 2255 unless the motion, files and records of the case show conclusively that the movant is not entitled to relief. 28 U.S.C. § 2255 ("Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). The threshold the petitioner must meet to obtain an evidentiary hearing is considered to be "reasonably low." Id. at 546. With this in mind, in considering a motion to vacate a defendant's sentence, the "district court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'" Johnson v. United States, 294 F.Appx. 709, 710 (3d Cir. 2008) (quoting Booth, 432 F.3d at 545-36). The district court, however, without further investigation may dispose of "vague and conclusory allegations contained in a § 2255 petition.'" Johnson, 294 F.Appx. at 710 (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).

Under 28 U.S.C. § 2255, a federal prisoner in custody may move the court which imposed the sentence to vacate, set aside or correct the sentence

upon the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."

28 U.S.C. § 2255(a). In Hill v. United States, 368 U.S. 424 (1962), the Supreme Court of the United States read the statute as stating four grounds upon which relief can be granted:

(1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" or (4) that the sentence "is otherwise subject to collateral attack."

Id. at 426-27 (quoting 28 U.S.C. § 2255(a)). The statute provides as a remedy for a sentence imposed in violation of law that "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).

B. Discussion

Criminal defendants may waive the right to file a motion to vacate, set aside, or correct a sentence under § 2255. The waiver, however, will be enforced only if it is knowing and voluntary. United States v. Mabry, 536 F.3d 231, 237 (3d Cir. 2008); United States v. Gwinnett, 483 F.3d 200, 205 (3d Cir. 2007); United States v. Clive, No. 05-0383, 2008 WL 3889726, at *6-7 (W.D. Pa. Aug. 19, 2008). If the waiver is enforceable, the court refrains from exercising subject-matter jurisdiction to consider the merits of the motion, unless the result would work a miscarriage of justice. Mabry, 536 F.3d at 237 n.4; United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001).

The court denied petitioner's first § 2255 motion because petitioner agreed not to collaterally attack his sentence in his plea agreement with the government. The court explained:

Here, petitioner knowingly and voluntarily entered into the Plea Agreement after negotiations took place between his attorney and the government's attorney. Under the Plea Agreement petitioner agreed, among other things, to plead guilty to a felony charge. The government agreed to move that the offense level be reduced for petitioner's acceptance of responsibility and to consider filing a 5K motion for substantial assistance to the government - which it did. The Plea Agreement set forth various stipulations agreed to by both parties and set forth the applicable maximum penalties which could be imposed on petitioner. The court informed petitioner that the court was not bound by the terms of the Plea Agreement and that petitioner could be sentenced up to thirty years imprisonment, $250, 000.00, and a lifetime of supervised release.
Most significant, the Plea Agreement contained an express waiver of plaintiff's right to attack collaterally his sentence, which was reviewed in open court. Petitioner benefitted from the Plea Agreement, particularly with respect to the government's filing of a 5K1.1 motion for substantial assistance, which warranted the court varying significantly from the low end of the sentencing guideline range, i.e., sixty-three months. Although petitioner was sentenced to the maximum term of supervised release - which was consistent with the policy statement contained in § 5D1.2(b)(2) United States Sentencing Commission Guidelines - he was sentenced to time served of nineteen months.
Enforcing petitioner's waiver of his right to file to a § 2255 motion does not work a miscarriage of justice because petitioner knowingly and voluntarily entered into the Plea Agreement. He was not coerced into entering the Plea Agreement. Petitioner's receipt of the benefits of the Plea Agreement, particularly the government's agreement to consider filing a 5K motion - as it did - constitutes valuable consideration for the waiver. Because petitioner's waiver is enforceable, the court refrains from exercising subject-matter jurisdiction.

(ECF No. 105 at 28-29.)

The Court of Appeals for the Third Circuit affirmed the court's decision, holding petitioner failed to show "that jurists of reason would debate the District Court's finding that his collateral waiver was knowing and voluntary" or "that jurists of reason would debate the District Court's finding that enforcement of the collateral waiver would not work a miscarriage of justice." (ECF No. 108 at 1-2.) Accordingly, petitioner knowingly and voluntarily waived his right to collaterally attack his sentence, which includes attacking it based upon the grounds raised in the § 2255 motion. The waiver is, therefore, enforceable, as long as enforcement of the waiver does not amount to a miscarriage of justice.

The court looks to the underlying facts to determine whether enforcing the waiver would give rise to a miscarriage of justice. Mabry, 536 F.3d at 243.[1] Relevant factors include:

"the clarity of the error, its gravity, its character (e.g., whether it concerns a fact issue, a sentencing guideline, or a statutory maximum), the impact of the error on the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced in the result...[.]"

Id. at 242-43 (quoting United States v. Teeter, 257 F.3d 14, 25-26 (1st Cir. 2001)). Waivers are meant to "preserve the finality of judgments and sentences imposed pursuant to valid pleas of guilty." Khattak, 273 F.3d at 561. In addition, "[a]llowing defendants to retract waivers would prolong litigation, affording defendants the benefits of their agreements while shielding them from their self-imposed burdens." Id . Further, waivers of the right to appeal may extend to meritorious claims. Id . A waiver of the right to appeal must logically extend to an appeal of difficult or debatable legal issues; otherwise, the waiver would be nearly meaningless if it included only matters that border on the frivolous. Id. at 562.

Petitioner in support of his § 2255 motion asserts several arguments. He argues the dismissal of a prior conviction warrants granting him relief and his conviction was obtained by fraud.

1. Dismissal of Prior Conviction

Petitioner in his § 2255 motion argues:

On February 8, 2013, the Eleventh District Court of Appeals, Ohio remanded a subject-matter jurisdiction issue back to the Ashtabula Western County Court, Ohio. On April 15, 2013, the criminal complaint was dismissed and the conviction therefrom was voided. The government [in this case] used Petitioner's prior conviction:
1) to prove intent, preparation, plan, identity, absence of mistake, or lack of accident;
2) as to probable cause, in part, for the complaint, arrest warrant and search warrants;
3) to deny bail on "danger to the community" grounds;
4) to calculate two criminal history points;
5) to calculate a guidelines range of 63 to 78 months; and
6) as a factual basis, in part, for the sentence of 19 months followed by a lifetime of supervised release.

(ECF No. 110 at 4.) According to petitioner, "[w]ithout the prior conviction, the government has zero evidence to prove Mr. Davies' specific, subjective intention was to engage in sexual activity." (ECF No. 113 at 12.) The prior conviction referred to by petitioner is a conviction for "sexual imposition M-3" in the Ashtabula County Court to which petitioner pleaded guilty. According to petitioner's presentence investigation report, petitioner when he was twenty-four years old "admitted to having sexual contact with two female minors ages 16 and 17, during a party, " and "initially met one of the minors via the Internet and at some point in time, arrangements were made for the defendant to come to her home." (Presentence Investigation Report, dated Aug. 19, 2009, at 7-8.)

On April 15, 2013, the Ashtabula County Court dismissed petitioner's case "on Motion of the State for judicial and prosecutorial economy." (ECF No. 110-1.) Petitioner seems to argue that the government relied upon the prior conviction throughout this case, and, therefore, he is entitled to relief under § 2255. A review of petitioner's allegations, however, shows that enforcing petitioner's knowing and voluntary waiver of his right to collaterally attack his conviction and sentence would not ...


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