Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Davis v. United States

United States District Court, E.D. Wisconsin

June 30, 2018

MAURICE DAVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING PETITIONER'S MOTION TO AMEND/CORRECT MEMORANDUM OF LAW IN SUPPORT OF §2255 (DKT. NO. 7), DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE (DKT. NO. 1), DISMISSING CASE AND DENYING CERTIFICATE OF APPEALABILITY

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         On November 3, 2016, the petitioner filed a motion to vacate or set aside or correct his sentence under 28 U.S.C. §2255. Dkt. No. 1. This court screened the motion, noting that the petitioner had stated his arguments in Sixth Amendment, ineffective-assistance-of-counsel terms. Dkt. No. 3 at 4. The government filed a response, dkt. no. 4, and the petitioner since has filed a motion to amend/correct his memorandum of law, dkt. no. 7. Because the petitioner's claims are untimely, the court will deny the motion.

         I. Background

         On March 15, 2011, the grand jury indicted the petitioner and five other defendants on one count of conspiracy to distribute 280 grams or more of crack cocaine between 2008 and 2010, in violation of 21 U.S.C. §§841(a)(1), 841(b)(1)(A) and 846. United States v. Maurice Davis, et al., Case No. 11-cr-63 (E.D. Wis.), Dkt. No. 1. That charge carried a mandatory minimum sentence of ten years in prison, and a maximum of life. 21 U.S.C. §841(b)(1)(A).

         Seven months later, the parties filed a plea agreement. Id., Dkt. No. 106. Related to the agreement, the government filed an information, charging the petitioner with one count of conspiracy; the information alleged that between 2008 and 2010, the petitioner had conspired with others to distribute at least twenty-eight grams or more of crack. Id., Dkt. No. 105. That charge carried a mandatory minimum penalty of five years (half of the minimum the petitioner originally had faced). 21 U.S.C. §841(b)(1)(B). In the plea agreement the petitioner voluntarily agreed to waive prosecution by indictment. Id., Dkt. No. 106 at ¶4. The plea agreement explained that the count to which the petitioner had agreed to plead guilty carried a mandatory minimum of five years imprisonment. Id. at ¶7. The petitioner and his lawyer signed the plea agreement on October 7, 2011. Id. at 13.

         On October 19, 2011, Judge Charles N. Clevert, Jr. presided over the petitioner's change-of-plea hearing. Id., Dkt. No. 113. At that hearing, Judge Clevert asked the petitioner what penalties he faced if he was convicted; the petitioner responded, “I think there's a mandatory minimum of five years to 40 year's [sic] imprisonment.” Id., Dkt. No. 188 at 10. After an extended plea colloquy that covered numerous other topics, the defendant answered, “I plead guilty, Your Honor, ” when Judge Clevert asked for his plea. Id. at 26.

         On February 6, 2012, the petitioner's lawyer filed a motion to withdraw; the petitioner had told his lawyer that the petitioner did not believe the lawyer was acting in his best interests. Id., Dkt. No. 170. The next day, the petitioner himself filed a motion, asking the court to remove his lawyer. Id., Dkt. No. 173. The next day, the court received a letter from the petitioner, responding to some of the statements his lawyer had made in the motion to withdraw. Id., Dkt. No. 174.

         On February 10, 2012, the probation office filed the revised presentence investigation report; among other things, it indicated that the charge to which the defendant had pled guilty carried a mandatory minimum penalty of five years. Id., Dkt. No. 175 at ¶85.

         On February 13, 2012, Judge Clevert held a hearing on the two motions to withdraw, granted them both, and asked the Federal Defender to appoint new counsel for the petitioner. Id., Dkt. No. 177.

         On September 21, 2012, the petitioner-acting on his own behalf-filed a motion to withdraw his guilty plea. Id., Dkt. No. 212. The same day, the petitioner's newly appointed counsel filed a memorandum in support of the petitioner's motion, arguing that Judge Clevert should not have taken the guilty plea, because on at least three occasions prior to the date of the plea hearing, the petitioner had expressed dissatisfaction with his lawyer. Id., Dkt. No. 213 at 4. Judge Clevert scheduled an evidentiary hearing and granted the petitioner's motion to proceed with stand-by counsel. Id., Dkt. No. 228. The court received another motion to withdraw the guilty plea-from the petitioner, not his lawyer-on September 21, 2012. Id., Dkt. No. 216. Judge Clevert scheduled an evidentiary hearing. Id., Dkt. No. 217.

         At the October 30, 2012 evidentiary hearing, the petitioner asked to represent himself. Id., Dkt. No. 228 at 1. The court granted that request, but asked counsel to stand by in case the petitioner needed assistance. Id. After hearing from the defendant on the merits of his motions to withdraw his guilty plea (as well as from stand-by counsel regarding the petitioner's competence), Judge Clevert denied the petitioner's motions to withdraw his guilty plea. Id. at 2. The judge also had planned to proceed to sentencing that day, but adjourned the hearing when it was clear that the parties could not agree on the drug amounts for relevant conduct. Id., Dkt. No. 230. The court adjourned the sentencing hearing to December 5, 2012, and set deadlines for the parties to file documents related to the drug amounts. Id.

         Over the next couple of months, the petitioner filed a motion for access to information, dkt. no. 239; a motion for disclosure of informants, dkt. no. 240; and a motion to dismiss the case, dkt. no. 243. On December 5, 2012, Judge Clevert denied the motion to dismiss the case and the motion to disclose informants, as well as an earlier motion the petitioner had filed regarding the prosecutor and the grand jury, dkt. no. 226. Id., Dkt. No. 245. He granted the petitioner's request for an extension of time, but otherwise denied the motion for access to information. Id. The judge set the next sentencing date for January 25, 2013 at 9:30 a.m. Id.

         The petitioner continued to file pleadings-a response to the government's exhibit, dkt. no. 244; a sentencing memorandum, dkt. no. 246. Judge Clevert adjourned the sentencing hearing to February 25, 2013 at 9:30 a.m. The petitioner then filed a motion to impeach tainted evidence, dkt. no. 248; a motion to set aside or vacate the plea agreement, dkt. no. 250; a memorandum in support of a motion for discovery of grant jury minutes, dkt. no. 251. At this point, Judge Clevert rescheduled the sentencing to April 3, 2013. The petitioner then filed a memorandum in support of his motion to impeach tainted evidence, dkt. no. 248; a memorandum of law in support of a Brady claim, dkt. no. 253; a “notice of concern, ” dkt. no. 254; a motion to compel response, dkt. no. 255. Judge Clevert rescheduled sentencing to April 17, 2013.

         At the April 17, 2013 sentencing hearing, Judge Clevert denied the petitioner's various motions. Id., Dkt. No. 260. Regarding sentencing, the government agreed (after extensive argument) to recommend a weight of 196 to 280 grams, a guideline range of 130 to 162 months and a below-guidelines sentence of 120 months (which was consistent with the terms of the plea agreement, dkt. no. 106 at 5-7). Id. The court calculated the guidelines by starting with a base offense level of 30, id. at 4, then applying a 3-level reduction for acceptance of responsibility, id. The revised offense level of 27 in criminal history category of VI resulted in the sentencing range of 130 to 162 months. Id. Judge Clevert correctly stated the mandatory minimum during the sentencing proceeding, commenting that “one thing is crystal clear, there's a mandatory minimum sentence of five years that must be imposed here.” Id., Dkt. No. 274 at 63. Judge Clevert imposed a below-guidelines sentence of 120 months' imprisonment and four years of supervised release. Id. at 66.

         In the Statement of Reasons he signed on April 17, 2013, Judge Clevert adopted the presentence report (which had referenced the five-year mandatory minimum) without change. Id., Dkt. No. 262 at 1. He marked Box B under “Court Finding on Mandatory Minimum Sentence, ” the box that stated, “Mandatory Minimum Sentence Imposed.” Id. He marked the box under Section IV that said that he was imposing a sentence outside the guidelines. Id. at 2. He marked the box under Section VI that said he was imposing a sentence below the guideline range. Id. at 3. In the section where he explained why he believed a below-guidelines sentence was warranted, Judge Clevert wrote, “The court adopts the government's recommendation for the 10 year mandatory minimum sentence. A below guideline sentence is warranted to account for the ongoing disparity in the guidelines between powder cocaine versus crack cocaine. This sentence also avoids sentencing disparities among the defendants.” Id.

         The petitioner filed a notice of appeal, arguing that the government had violated the plea agreement. Id., Dkt. No. 263. He did not argue that Judge Clevert had imposed an illegal sentence. He did not argue that his sentencing lawyer provided ineffective assistance of counsel. Because the petitioner received the full benefit of the agreement, the Seventh Circuit affirmed the judgment on August 1, 2014. United States v. Davis, 761 F.3d 713, 716 (7th Cir. 2014).

         II. Motion to Amend/Correct Memorandum (Dkt. No. 7)

         The court will begin with the petitioner's “request to amend” his memorandum of law. Dkt. No. 7. He filed this request after the court gave him an extension of time to file his brief; the “request to amend” is really the petitioner's brief in support of his motion to vacate, set aside or correct sentence. Id. In the eight-page request to amend, the petitioner addresses the respondent's arguments that his petition is time-barred, and his own argument that Judge Clevert lacked subject-matter jurisdiction to impose a ten-year mandatory minimum sentence. Id. The court will grant the request to amend. It has considered all of the arguments in the petition, as well as the arguments in the request for leave to amend, in reaching its decision to deny the §2255 motion.

         III. Motion to Vacate, Set Aside, or Correct Sentence (Dkt. No. 1)

         A. Standard

         Section 28 U.S.C. §2255 allows a federal prisoner to ask the court that imposed his sentence to vacate, set aside or correct that 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).

         Section 2255(f) contains a one-year limitations period, which runs from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or law of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. §2255(f)(1)-(4).

         The law allows a petitioner to ask the court to “toll, ” or pause, the one-year clock. The one-year limitations period is subject to two different “tolling” procedures-statutory tolling and equitable tolling. Subsection (d)(2) of the statute provides for “statutory tolling, ” stating that “the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. §2244(d)(2). As for equitable tolling, a court may invoke that doctrine only if the petitioner shows “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” Holland v. Fla., 560 U.S. 631, 649 (2010). “Equitable tolling is an extraordinary remedy and so ‘is rarely granted.'” Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013) (quoting Simms v. Acevedo, 595 F.3d 774, 781 (7th Cir. 2010)). “The petitioner seeking equitable tolling bears the burden of establishing that it is warranted.” Id. (citing Williams v. Buss, 538 F.3d 683, 685 (7th Cir. 2008)).

         Even if a petitioner timely files his petition within the one-year limitations period, he is not entitled to relief under §2255 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.