Davis v. United States of America
MEMORANDUM OPINION-The Magistrate Judge filed his R&R 31 , recommending that Petitioner's motion to vacate or set aside sentence be denied and dismissed with prejudice. The court is of the opinion that the Report is due to be and hereby is ADOPTED and the Recommendation is ACCEPTED. Signed by Judge R David Proctor on 9/19/2012. (AVC)
2012 Sep-20 AM 08:50
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOHN STELLIOS DAVIS,
UNITED STATES OF AMERICA,
On March 3, 2011, the Magistrate Judge filed his Report and Recommendation in the abovestyled case, recommending that Petitioner’s motion to vacate or set aside sentence filed pursuant to
28 U.S.C. § 2255 be denied and dismissed with prejudice. (Doc. #31). Petitioner filed objections
to the Report and Recommendation.1 (Doc. #34).
Petitioner also filed a number of motions after the Magistrate Judge entered his Report and
Recommendation. (See Docs. #32, 33, 36, 37, 38, and 40). Petitioner’s application to proceed
without prepayment of the filing fee (Doc. #33) is MOOT. The other motions Petitioner filed make
various requests to amend and/or supplement his § 2255 petition (Docs. #32, 37), amend and
supplement his objections to the Report and Recommendation (Docs. #36, 38), and supplement the
record by filing a transcript (Doc. #40). Each of those motions are GRANTED. However, although
the court has considered each of the arguments advanced by Petitioner, the court has determined that
those arguments do not warrant the relief he requests here, primarily for two reasons. First,
Petitioner’s guideline arguments are off the mark because the guidelines are not controlling and, in
any event, the court sentenced Petitioner based upon the factors that Congress has provided at 28
U.S.C. § 3553(a) irrespective of the Guideline calculations. (See Doc. # 10-11, at p. 26 lines 1-5).
Second, the court finds that, notwithstanding his additional arguments — most of which parrot (or
are substantially similar to) his initial objections — Petitioner is not entitled to the relief he seeks
In his Report, the Magistrate Judge efficiently and thoroughly addressed each of Petitioner’s
claims.2 The court has carefully reviewed and considered de novo all the materials in the court file,
including the Report and Recommendation and objections thereto, and the court is of the opinion
that the Report is due to be and hereby is ADOPTED and the Recommendation ACCEPTED.
Consequently, Petitioner’s motion to vacate or set aside sentence filed pursuant to 28 U.S.C. § 2255
The court adds a single comment to the Magistrate Judge’s thorough analysis: Petitioner
argues that there was no evidence he sent child pornography across state lines. That argument
ignores his acknowledgment and admission of that fact during his consent hearing:
All right. Mr. Davis, what I want you to do is to listen carefully to
what the Assistant U.S. Attorney is about to say because I’m going to
ask him to outline for both of us some of the evidence he would offer
to a jury should this case go to trial, and I’ll ask the government to tell
me what it would expect to prove beyond a reasonable doubt if this
case were to proceed to trial.
Your Honor, should this case proceed to trial, the government would
expect the evidence would show that on or about August the 1st,
2005, the defendant John Stellios Davis sent at least four images of
child pornography, as that term is defined under Section 2256 of Title
18. He sent those images by computer via the Internet from his
residence in Asheville, North Carolina to an undercover officer who
was located in Birmingham, Alabama which is in Jefferson County
within the Northern District of Alabama.
All right. Mr. Davis, you have heard the Assistant U.S. Attorney
briefly outline the facts that the government would expect to prove at
trial. Are those facts substantially correct?
Yes, Your Honor.
Did you hear him say anything that’s incorrect?
No, Your Honor.
Did you do the things he said you did?
Yes, Your Honor.
And did you know you were violating the law when you did those
Yes, Your Honor.
(Doc. #10-7 at p. 16, line 16 to p. 17, line 21) (emphasis added).
is due to be denied. A separate order in accordance with this Memorandum Opinion will be entered.
DONE and ORDERED this
day of September, 2012.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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