United States District Court, D. Idaho
DANIEL M. DAVIS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM DECISION AND ORDER
J. Lodge United States District Judge
before the Court in the above-entitled matter are
Petitioner's § 2255 Motion to vacate, set aside, or
correct sentence and related filings. (CV Dkt. 20, 26-28, 37,
41, 42, and 46.) The Government has filed responses to
which Petitioner has replied. The matter is ripe for the
AND PROCEDURAL BACKGROUND
Indictment in this case charged the Petitioner Daniel M.
Davis with Possession of Sexually Explicit Images of Minors
and Criminal Forfeiture. (CR Dkt. 14.) On June 19, 2008, Mr.
Davis entered a guilty plea pursuant to a written Plea
Agreement at which time he was represented by trial counsel.
(CR Dkt. 52.) Thereafter, Mr. Davis filed a Motion for Self
Representation and his trial counsel requested leave to
withdraw. (CR Dkt. 55, 59.) On September 15, 2008, the Court
held a hearing and new counsel was appointed. (CR Dkt. 66,
72.) Thereafter, Mr. Davis and his new counsel filed various
motions concerning Mr. Davis' representation in this
matter and the Court held hearings on the same. Mr. Davis
also sought to withdraw his plea. Ultimately, the Court
denied Mr. Davis' request to withdraw his plea and for
new appointment of counsel but allowed Mr. Davis to proceed
at his sentencing hearing pro se with the assistance
of standby counsel. (CR Dkt. 93.) Mr. Davis then made several
filings requesting return of property and legal funds, a
motion to suppress, and a motion to dismiss. The Court ruled
on these matters in written Orders. (CR Dkt. 103, 106.)
February 9, 2009, the Court sentenced Mr. Davis to a total of
168 months incarceration to be followed by a term of
supervised release. (CR Dkt. 109, 110.) A Notice of Appeal
was filed on the same day. (CR Dkt. 107.) On appeal, the
Ninth Circuit appointed new appellate counsel to represent
Mr. Davis and denied his later request to represent himself
on appeal. (CR Dkt. 116, 131.) On April 13, 2010, the Ninth
Circuit remanded the case to this Court for reconsideration
of Mr. Davis' request to withdraw his guilty plea. (CR
Dkt. 133.) On September 2, 2010, this Court held an
evidentiary hearing regarding the remand. (CR Dkt. 148.)
Thereafter, on October 6, 2010, the Court issued a written
Order denying Mr. Davis' Motion to Withdraw his Plea. (CR
Dkt. 149, 151.) Mr. Davis filed a Notice of Appeal of that
decision. (CR Dk. 152.)
August 5, 2011, the Ninth Circuit dismissed the appeal for
lack of jurisdiction based on Mr. Davis' waiver of appeal
in the Plea Agreement and further concluded that this Court
correctly denied Mr. Davis' Motion to Withdraw his Plea.
(CR Dkt. 160.) On October 18, 2011, the Ninth Circuit issued
its Mandate. (CR Dkt. 163.)
December 26, 2012, Petitioner filed his § 2255 Motion.
(CR Dkt. 165) (CV Dkt. 1.) The Court struck that Motion as
unduly exceeding the page limitations but granted the
Petitioner leave to file an amended § 2255 Motion which
he did on September 5, 2014. (CV Dkt. 19, 20.) The Government
has responded and Petitioner has filed his reply. (CV Dkt.
31, 34, 35.) Mr. Davis has made several other filings
relating to this matter. The Court finds as follows.
Motion for Leave to Amend and/or Supplement the § 2255
seeks leave to amend his § 2255 Motion to challenge his
“first” conviction - referring to his 2002
conviction for receiving child pornography in interstate
commerce in Case Number 1:01-cr-00188-EJL - as
unconstitutional pursuant to Dubrin v. California,
720 F.3d 1095, 1099 (9th Cir. 2013). (CV Dkt. 37.) Petitioner
argues the 2002 conviction significantly enhanced his
punishment in this case making him subject to a heightened
statutory minimum. Petitioner alleges he is “actually
innocent” of the 2002 violation because the government
failed to prove use of actual minors in alleged images of
sexually exploitative material and that he was entrapped.
Further, Petitioner contends he was not adequately
represented on the first conviction and, therefore, the
conviction should not stand. The Government opposes the
Motion. (CV Dkt. 38.) In his reply, Petitioner maintains he
should be allowed to file an amendment supplementing his
claim because he “was never afforded the opportunity to
challenge the prior conviction used to enhance the subsequent
sentence.” (CV Dkt. 39.)
Petitioner cannot challenge his 2002 conviction in the §
2255 Motion filed in this case. “If...a prior
conviction used to enhance a federal sentence is no longer
open to direct or collateral attack in its own right because
the defendant failed to pursue those remedies while they were
available (or because the defendant did so unsuccessfully),
then that defendant is without recourse. The presumption of
validity that attached to the prior conviction at the time of
sentencing is conclusive, and the defendant may not
collaterally attack his prior conviction through a motion
under § 2255.” See Daniels v. United
States, 532 U.S. 374, 381-82 (2001) (holding that a
defendant may not challenge a sentence in a 28 U.S.C. §
2255 proceeding by collaterally attacking the validity of an
earlier conviction). Despite his arguments to the contrary,
Petitioner unsuccessfully contested his conviction in the
2002 case numerous times before this Court and the Ninth
Circuit. (Case No. 1:01-cr-00188-EJL, CR Dkt. 44, 51, 55, 73,
112, 117.) Therefore, the rule barring collateral attacks on
a prior conviction precludes the argument Petitioner seeks to
raise by amendment/supplement of his § 2255 Motion.
the exceptions to this rule do not apply here.
Daniels, 532 U.S. at 381-82; see also Lackawanna
Cnty. Dist. Attny. v. Coss, 532 U.S. 394, 405 (2001)
(extending Daniels to § 2254 habeas petitions
brought by state prisoners); Dubrin, 720 F.3d at
1099. The Petitioner was represented in his 2002 case, there
is no newly-discovered evidence or law that could not have
been raised in his earlier challenges, and he fully contested
his prior conviction. For these reasons, the Court denies this
Motions for Interlocutory Partial Summary Judgment
has filed Motions for Interlocutory Partial Summary Judgment
seeking to vacate the “48 month sentence” imposed
based on undisclosed revisions to the presentence report
contained in the Government's sentencing memorandum and
used by the Court when imposing sentence. (CV Dkt. 41, 46.)
The claims underlying these Motions are raised in the §
2255 Motion which the Court addresses elsewhere in this
Order. These Motions, therefore, are deemed moot as the
arguments and claims made therein have been decided.
Alternatively, the Motions are denied as improper attempts to
amend/file a successive § 2255 Motion. See 28
U.S.C. § 2255(h).
Motion to Correct Presentence Report and Sentencing
seeks to correct errors and misrepresentations he alleges are
contained in the presentence report which prejudicially
affected his sentencing. (CV Dkt. 42.) Petitioner claims the
presentence report was modified from the October 15, 2008
report without his being notified, he was not allowed to
“elucidate” on the changes, and he has set forth
a number of proposed corrections. In addition, Petitioner
proposes corrections to the Government's Sentencing
Memorandum. Wrapped up in these arguments are
Petitioner's claims of ineffective assistance of counsel,
prosecutorial misconduct, sentencing errors, and the like.
Petitioner also again asks that the Court reevaluate his 2002
conviction and reconsider the sentence imposed in this case.
The Motion cites to both Federal Rule of Criminal Procedure
36 and Federal Rule of Civil Procedure 60. The Government
opposes the Motion. (CV Dkt. 44.)
Rule 36 allows the Court to correct any clerical error in a
judgment, order, or other part of the record. Fed. R. Crim.
P. 36. It does not allow substantive corrections to the
record as sought by Petitioner on this Motion. Civil Rule 60
also does not afford Petitioner the relief he seeks here.
Fed.R.Civ.P. 60. The arguments made in this Motion seek to
supplement, amend, and/or file a successive § 2255
Motion. Such relief is not provided for in Civil Rule 60.
Furthermore, the Court has addressed the substance of these
arguments in its ruling on the § 2255 Motion as stated
herein. For these reasons, the Motion is denied.
Motions to Unseal, Strike, and/or Provide Copies of the
has filed two Motions asking that certain documents contained
in the criminal case docket be unsealed, provided to him,
and/or stricken. (CV Dkt. 26, 28.) The Court addresses each
of Petitioner's requests below.
69 relates to a Motion to Withdraw as counsel in this matter.
It has no bearing on this § 2255 proceeding and is
appropriately sealed as it concerns attorney/client material.
22, 26, 29, 32 are all properly filed under seal as they
relate to the Petitioner's private medical information.
23 is a Notice of Appearance of John E. Sutton and Charles C.
Crafts. Those attorneys were retained and appeared on
Petitioner's behalf in this matter. (CR Dkt. 17, 23.) As
such, the Motion to Strike is denied.
75, 78, and 90 are properly sealed as they contain potential
76 is a letter from the Petitioner which includes potentially
personal information and is, therefore properly sealed.
86 is not sealed.
Petitioner's request for copies of certain documents,
Docket Numbers 26, 39, 69, and 75, the Court denies the same.
For the reasons stated in this Order, Petitioner's claims
are frivolous and without merit. Copies of the requested
documents would not assist the Petitioner in pursuing his
frivolous claims. These Motions are denied.
Motion for Appointment of Standby Counsel
asks for appointment of standby counsel pursuant to 18 U.S.C.
§ 3006A to assist him in his legal research,
interviewing witnesses, developing testimony, conducting
discovery, and completing depositions and interrogatories.
(CV Dkt. 27.)
there is no constitutional right to habeas counsel, an
indigent petitioner seeking relief under 28 U.S.C. §
2255 may move the court for appointment of representation to
pursue that relief. See 18 U.S.C. §
3006(A)(2)(B); Pennsylvania v. Finley, 481 U.S. 551,
555 (1987); Nevius v. Sumner, 105 F.3d 453, 460 (9th
Cir. 1996). The court has discretion to appoint counsel at
any stage of a case “if the interests of justice so
require.” 18 U.S.C. § 3006(A)(2); see
also Rule 8(c) of the Rules Governing § 2255
Proceedings; United States v. Harrington, 410 F.3d
598, 599 (9th Cir. 2005). The interest of justice so requires
where the complexities of the case are such that denial of
counsel would amount to a denial of due process. See
Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980).
“In the absence of such circumstances, a request for
counsel in proceedings under section 2255 is addressed to the
sound discretion of the trial court.” Dillon v.
United States, 307 F.2d 445, 446-47 (9th Cir. 1962).
Further, “[i]n deciding whether to appoint counsel in a
habeas proceeding, the district court must evaluate the
likelihood of success on the merits as well as the ability of
the petitioner to articulate his claims pro se in
light of the complexity of the legal issues involved.”
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
reviewed the record in this case, the Court denies the
request for appointment of counsel. This case is not one that
is so complex that denial of counsel would amount to a denial
of due process. Further, the record clearly shows the
Petitioner is able to represent himself based on his filings
articulating his legal and factual position/arguments.
Moreover, Petitioner has failed to show a likelihood of
success on the merits of his § 2255 Motion. The Motion
for Appointment of Counsel is denied.
Section 2255 Motion