Davis v. USA-2255
Filing
2
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 2/19/2021. (c/m 2/19/2021 heps, Deputy Clerk)
Case 8:18-cv-01463-DKC Document 2 Filed 02/19/21 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JIMMY REED DAVIS, Jr.
:
v.
:
Criminal No. DKC 10-0707
Civil Action No. DKC 18-1463
:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Jimmy Reed Davis, Jr. (“Petitioner”) filed a motion to vacate,
set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
Petitioner pled guilty to intent to distribute 28 grams or more of
cocaine base in violation of 28 U.S.C. § 841 and possession of a
firearm in furtherance of a drug trafficking crime in violation of
18 U.S.C. § 924(c) and was sentenced by Judge Titus 120 months’
imprisonment.
(ECF Nos. 42 and 43).
This conviction became final
on November 14, 2011 when Petitioner’s right to appeal the final
judgment expired, as detailed more fully in the previous opinion
and order in this matter.
1463,
2019
WL
1641160,
at
Davis v. United States, No. DKC 18*1
(D.Md.
Apr.
16,
2019)
(citing
Whiteside v. United States, 775 F.3d. 180. 182-83 (4th Cir. 2014)).
I.
Procedural History
The motion was received by the Clerk for filing on May 21,
2018, and is dated May 17, 2018.1
The motion acknowledged that it
1
Petitioner, who was incarcerated, gets the benefit of the
“prison mailbox rule.” A paper is deemed “filled” when it was
Case 8:18-cv-01463-DKC Document 2 Filed 02/19/21 Page 2 of 5
would be otherwise untimely except that Sessions v. Dimaya, 138
S.Ct. 1204 (2018), on which it relies (in part), was decided on
April 17, 2018, and therefore rendered his petition timely in being
filed within one year of this decision. (ECF No. 46).
The government’s response, filed on October 11, 2018, argued
that
Dimaya
and
the
other
Supreme
Court
cases
relied
on
by
Petitioner do not apply to Petitioner’s conviction and thus cannot
provide grounds for timeliness under § 2255(f)(3).
(ECF No. 48).
On March 1, 2019, with the death of Judge Titus, the case was
subsequently transferred to this member of the court on March 1,
2019.
An opinion and order was issued on April 16, 2019, largely
agreeing with the government’s position and placing Petitioner on
notice that of the three major cases cited he cited as the basis
for relief — Dimaya, Mathis v. United States, 136 S.Ct. 2243
(2016), and Descamps v. United States, 570 U.S. 254 (2013) — all
were inapplicable as Petitioner was charged with use of a firearm
in furtherance of a drug trafficking crime under §924(c)(2), not
a crime of violence; redgardless, Mathis and Descamps “did not
establish a new rule” to allow Mr. Davis relief under § 2255(f)(3).
Mr. Davis was informed that his § 2255 motion would be dismissed
as untimely based on these findings unless he provided the court
delivered into the prison mail system. This (at most) four-day
difference, however, does not affect the timeliness of the motion,
and thus the day the motion was docketed will be used for
simplicity’s sake.
2
Case 8:18-cv-01463-DKC Document 2 Filed 02/19/21 Page 3 of 5
with information that established that he is either entitled to
the benefit of other timeliness exceptions provided in 28 U.S.C.
§ 2255, or that he is entitled to equitable tolling of the statute
of limitations.
Davis, 2019 WL 1641160, at *2 (citing Day v.
McDonough, 547 U.S. 198, 202 (2006) and United States v. Sosa, 364
F.3d 507 (4th Cir. 2004), as establishing the expectation that
Petitioner be warned in this way).
Petitioner has not filed a
response, despite being re-mailed a copy of the opinion and order
on August 6, 2019.
(See notes on ECF No. 50).
During the pendency of this motion, Mr. Davis was released
from prison into supervised release. This does not moot the matter
as “custody” is determined when the petition is filed, United
States v. Swaby, 855 F.3d 233, 238-39 (4th Cir. 2017) (citing
Carafas v. LaVallee, 391 U.S. 234, 238 (1968)), and, moreover, “a
prisoner on supervised release is considered to be ‘in custody’
for the purposes of a § 2255 motion.”
Id. (quoting United States
v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999)).
II.
Analysis
As stated in the previous opinion and order, the various cases
cited
by
Petitioner
conviction.
are
entirely
inapplicable
to
Mr.
Davis’
With his purported basis for timeliness found to be
meritless, he was warned that his claims, filed many years after
his conviction became final, were at risk of being time-barred
without a viable basis for timeliness.
3
Despite this warning, Mr.
Case 8:18-cv-01463-DKC Document 2 Filed 02/19/21 Page 4 of 5
Davis did not provide a viable “new rule,” new fact, or grounds
for equitable tolling as the basis for bringing a timely motion
and his claims are therefore time-barred.
III. Conclusion
The motion to vacate, set aside, or correct sentence filed
pursuant to 28 U.S.C. §2255 by Petitioner Jimmy Reed Davis will be
dismissed.
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. §§ 2254 or 2255, the court is also required to
issue or deny a certificate of appealability when it enters a final
order adverse to the petitioner.
A certificate of appealability
is a “jurisdictional prerequisite” to an appeal from the court’s
order.
United States v. Hadden, 475 F.3d 652, 659 (4th Cir. 2007).
A certificate of appealability may issue “only if the applicant
has made a substantial showing of the denial of a constitutional
right.”
28 U.S.C. § 2253(c)(2).
Where the court denies the
petitioner’s motion on its merits, a petitioner satisfies this
standard by demonstrating that “reasonable jurists would find the
court’s
wrong.”
assessment
of
the
constitutional
claims
debatable
or
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also
Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003). Where a motion
is denied on a procedural ground, a certificate of appealability
will not issue unless the petitioner can demonstrate both “(1)
that jurists of reason would find it debatable whether the petition
4
Case 8:18-cv-01463-DKC Document 2 Filed 02/19/21 Page 5 of 5
states a valid claim of the denial of a constitutional right and
(2) that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.”
Rose v.
Lee, 252 F.3d 676, 684 (4th Cir. 2001) (internal marks omitted).
After review of the record, it is clear that Petitioner does
not satisfy the above standard.
appealability will not issue.
Accordingly, a certificate of
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
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