United States District Court, M.D. Pennsylvania
Malachy E. Mannion, United States District Judge.
before the court is the pro se Motion to Vacate, Set
Aside or Correct, filed by petitioner Willie Davis, pursuant
to 28 U.S.C. §2255, with regard to his 37-month
sentence to imprisonment imposed on June 28, 2016. (Doc.
121). In his motion, Davis claims, without support, that he
is innocent of his convicted charge, namely, possession of
contraband within a prison, in violation of 18 U.S.C.
§1791(a)(2) and (b)(3). He also raises jurisdictional
and constitutional challenges to his conviction. In
considering Davis's motion, the government's
response, and Davis's reply, the motion will be
DENIED without an evidentiary hearing.
Davis's motion for judgment on the pleadings pursuant to
Fed.R.Civ.P. 12(c), (Doc. 128), will also be
DENIED. Davis's motion to file a reply
brief, (Doc. 126), will be GRANTED and his
reply brief, (Doc. 126-1), will be considered by the court.
Davis's motion to take judicial notice of adjudicative
facts, (Doc. 130), will be DENIED. The court
will not issue a certificate of appealability.
26, 2016, a one-count Indictment was filed against Davis
charging him with possessing contraband while confined at
USP-Lewisburg, in violation of 18 U.S.C.
§1791(a)(2). (Doc. 1). Specifically, Davis was
charged with possessing a sharpened piece of plastic about
eight inches long which was allegedly attached to his body by
August 29, 2016, the court denied Davis's pre-trial
motions, (Doc. 12, Doc. 14), in which he claimed that the
indictment was defective and that evidence should be
suppressed. (Doc. 28, Doc. 29).
November 4, 2016, the court issued an Order granting the
government's motion in limine for the court to
take judicial notice that the United States Penitentiary
Lewisburg is a federal correctional facility under FRE 201.
November 9, 2016, the court issued an Order granting the
government's motion in limine to preclude Davis
from arguing to the jury or presenting evidence at trial that
the United States District Court for the Middle District of
Pennsylvania lacks jurisdiction over his case or, that it
lacks subject matter jurisdiction or jurisdiction over the
person of Willie Davis. (Doc. 49).
November 14, 2016, the court denied Davis's motions
challenging the constitutionality of 18 U.S.C.
§1791(a)(2), (Doc. 54), and his motion claiming that the
Speedy Trial Act was violated under 18 U.S.C.
§3161(c)(1). (Doc. 66).
was then convicted of the charged offense under
§1791(a)(2) by a jury on December 14, 2016.
28, 2017, Davis was sentenced by this court to 37 months
imprisonment to run consecutive to the federal sentence he
was serving at the time. Davis appealed his judgment of
sentence on the grounds that the court failed to instruct the
jury that Congress excluded objects specified in 18 U.S.C.
§1791(d)(1)(B). Davis's appeal was denied on April
3, 2018 by the U.S. Court of Appeals for the Third Circuit.
(Docs. 112 & 113-1). See United States v. Davis,
728 Fed.Appx. 125 (3d Cir. 2018).
then petitioned the U.S. Supreme Court to hear his appeal
and, on February 19, 2019, his petition for writ of
certiorari was denied. He then filed a petition for
re-hearing with the Supreme Court which was denied on April
22, 2019. As such, Davis has exhausted his direct appeals
regarding his June 28, 2016 conviction.
filed his initial motion to vacate under §2255 on
January 15, 2019. The court dismissed this motion without
prejudice since Davis's appellate remedies had not yet
been exhausted. (Doc. 117). Davis then filed his instant
motion to vacate under 28 U.S.C. §2255 on May 6, 2019.
(Doc. 121). Davis attached a brief in support to his motion
as well as his affidavit. The government filed its response
on May 17, 2019. (Doc. 123). Davis then filed replies on May
20 and 28, 2019. (Docs. 124, 125 & 126-1).
district court judge imposes a sentence on a defendant who
believes “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, [the
defendant] may move the court which imposed the sentence to
vacate, set aside or ...