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Davis v. United States

United States District Court, D. Idaho

November 1, 2016

DANIEL M. DAVIS, Petitioner,


          Edward J. Lodge United States District Judge


         Pending 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.)[1] The Government has filed responses to which Petitioner has replied. The matter is ripe for the Court's consideration.


         The 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.)

         On 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.)

         On 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.)

         On 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.)[2] 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.


         1. Motion for Leave to Amend and/or Supplement the § 2255 Motion

         Petitioner 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.)

         The 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.

         Furthermore, 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.[3] For these reasons, the Court denies this Motion.

         2. Motions for Interlocutory Partial Summary Judgment

         Petitioner 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).

         3. Motion to Correct Presentence Report and Sentencing Memorandum

         Petitioner 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.)

         Criminal 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.

         4. Motions to Unseal, Strike, and/or Provide Copies of the Record

         Petitioner 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.

         Docket 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.

         Docket 22, 26, 29, 32 are all properly filed under seal as they relate to the Petitioner's private medical information.

         Docket 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.

         Docket 75, 78, and 90 are properly sealed as they contain potential attorney-client information.

         Docket 76 is a letter from the Petitioner which includes potentially personal information and is, therefore properly sealed.

         Docket 86 is not sealed.

         As to 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.

         5. Motion for Appointment of Standby Counsel

         Petitioner 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.)

         While 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).

         Having 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.

         6. Section 2255 Motion

         A. ...

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