Davis v. United States of America
Filing
59
OPINION AND ORDER: Mykai Davis's motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence is GRANTED IN PART and DENIED IN PART. To the extent the motion is based on a claim of ineffective assistance of counsel or alleged defects in Davis's guilty plea and sentencing proceedings, the motion is DENIED. Therefore, his conviction for conspiring to participate in the affairs of a racketeering enterprise (Count One) must stand. However, as the government acknowled ges, Davis's firearms conviction under Section 924(c) (Count Two) must be vacated in light of United States v. Davis 139 S. Ct. 2319 (2019). That being the case, although there is no basis to vacate Davis's racketeering conspiracy convictio n, his sentence must be vacated and he will be resentenced on the racketeering conspiracy count. The Court schedules a hearing on October 4, 2019, at 11:30 a.m., at which the government will consent to a vacatur of Davis's conviction on Count T wo, and Davis will be resentenced on Count One. The Court directs the Probation Department to prepare a revised and updated Presentence Report. The Court re-appoints Daniel A. Hochheiser, Esq., pursuant to the Criminal Justice Act, as Davis's co unsel for purpose of resentencing. The Court will not enter a judgment in Case No. 18 CV 1308 (VB) at this time. After Davis is resentenced, the Court will enter an amended judgment in the criminal case and a final judgment in the civil case. As pe titioner has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appe al from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Chambers will mail a copy of this Opinion and Order to petitioner at the address on the docket in Case No. 18 CV 1308 (VB). SO ORDERED. (Status Conference set for 10/4/2019 at 11:30 AM before Judge Vincent L. Briccetti.) (Signed by Judge Vincent L. Briccetti on 7/30/2019) Copies Mailed By Chambers. (mml)
Copy Mailed to Petitioner 7-30-19. DH
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MYKAI DAVIS,
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
Respondent.
:
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OPINION AND ORDER
18 CV 1308 (VB)
S2 14 CR 768-05 (VB)
Briccetti, J.:
Petitioner Mykai Davis, proceeding pro se, moves under 28 U.S.C. § 2255 to vacate, set
aside or correct his sentence. Liberally construed, his claims can be fairly summarized as
follows:
1.
His attorney gave him constitutionally ineffective advice at the time of his guilty
plea regarding the merits of his suppression motion as well as his likely sentencing exposure and
the scope of the conduct for which he would be held responsible;
2.
His guilty plea was not knowing and voluntary because (i) he decided to plead
guilty on the morning of his scheduled suppression hearing and did not realize he was giving up
his right to challenge the admissibility of evidence he claims was obtained unlawfully, and (ii) he
was under the influence of medication;
3.
He was improperly sentenced based on (i) his alleged involvement in a shooting
on March 31, 2013, for which there was no factual basis, and (ii) a reference in his plea
agreement to having been convicted of grand larceny on September 4, 2013, when in fact his
conviction was for petit larceny; and
1
4.
His conviction under 18 U.S.C. § 924(c)(1)(A)(i) for using and carrying a firearm
in connection with a crime of violence should be vacated in light of the Supreme Court’s recent
decision in United States v. Davis, 139 S. Ct. 2319 (2019).
For the following reasons, to the extent the motion is based on a claim of ineffective
assistance of counsel or alleged defects in Davis’s guilty plea and sentencing proceedings, the
motion is DENIED. Therefore, his conviction for conspiring to participate in the affairs of a
racketeering enterprise must stand. However, as the government acknowledges, Davis’s firearms
conviction under Section 924(c) must be vacated in light of United States v. Davis. That being
the case, although there is no basis to vacate Davis’s racketeering conspiracy conviction, his
sentence must be vacated and he will be resentenced on the racketeering conspiracy count.
BACKGROUND
Davis’s motion and his numerous later-filed letters, motions, and other submissions; the
government’s memorandum of law in opposition and attached exhibits, and its various
supplemental memoranda; and the record of the underlying criminal proceedings, reflect the
following:
On February 19, 2015, Davis was arrested pursuant to a warrant based on an indictment
that charged him and several co-defendants with, among other things, conspiring to commit
Hobbs Act robberies, and using, carrying, and brandishing firearms during and in relation to the
Hobbs Act robbery conspiracy. On July 1, 2015, the instant superseding indictment (the “S2
indictment”) was filed, charging Davis and others with participating in a racketeering conspiracy,
in violation of 18 U.S.C. § 1962(d) (Count One), using and possessing firearms some of which
were discharged, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) (Count Two), and other offenses,
2
including a Hobbs Act robbery conspiracy and a corresponding firearms offense under Section
924(c).
The S2 indictment charged that Davis was a member of a Yonkers street gang called
“Cruddy 650.” As set forth in the Presentence Report (“PSR”) prepared prior to Davis’s
sentencing, Davis was one of the founders of the gang and played a leadership role in many of
the gang’s activities (PSR ¶¶ 30, 33); he had access to guns and lent them to fellow gang
members to carry out criminal activities, including armed robberies (PSR ¶ 33); he recruited
others to participate in numerous robberies that he planned and orchestrated (PSR ¶¶ 35-46); and
he helped plan the shooting of a rival gang member on March 31, 2013 (PSR ¶ 34).
Following his indictment, Davis moved to suppress the contents of a cellphone seized
from him on November 3, 2014. On the morning of the scheduled suppression hearing, Davis,
rather than proceed with the hearing, pleaded guilty to Count One of the S2 indictment (the
racketeering conspiracy count), and a lesser-included offense in Count Two, specifically, using
and carrying a firearm during and in relation to a crime of violence, namely the racketeering
conspiracy charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(A)(i). The firearms
count carried a mandatory minimum sentence of 60 months’ imprisonment, which was required
to run consecutively to any other sentence imposed.
The plea was entered pursuant to a written plea agreement, signed by Davis, that included
a Sentencing Guidelines stipulation. Among other things, Davis agreed to a sentencing range of
151 to 188 months’ imprisonment on Count One based, in part, on the March 31, 2013, shooting
incident, as well seven armed robberies and one additional robbery carried out in furtherance of
the racketeering conspiracy. Because the sentencing range on Count Two was 60 months (the
mandatory minimum), the total agreed-upon sentencing range was 211 to 248 months’
3
imprisonment. 1 Davis also agreed not to appeal or challenge collaterally, pursuant to Section
2255 or otherwise, any sentence within or below the stipulated sentencing range of 211 to 248
months. However, the agreement stated that Davis was not waiving his right to assert claims of
ineffective assistance of counsel on appeal or otherwise.
Pursuant to the plea agreement, the government agreed, at the time of sentencing, to
move to dismiss any open counts against Davis, including the Hobbs Act robbery conspiracy and
corresponding Section 924(c) count.
At the guilty plea proceeding, the Court conducted a thorough colloquy pursuant to Rule
11 of the Federal Rules of Criminal Procedure to determine whether the plea was knowing and
voluntary and whether there was a factual basis for the plea. Among other things, the Court
asked Davis about his mental health conditions and any medications he was taking, and whether
those things affected his ability to understand the proceedings. (Plea Tr. 5-9). Davis
acknowledged, under oath, that he was “feeling good,” he knew what he was doing, he was ready
to go forward, his mind was clear, and he understood what was happening in court. (Plea Tr. 69). Davis also said he had been given enough time to discuss his case with his attorney, Bruce D.
Koffsky, Esq.; that he had discussed with Mr. Koffsky the charges and any possible defenses he
had, as well as the consequences of the guilty plea; and that he was satisfied with his attorney’s
representation. (Plea Tr. 9-10). The Court found that Davis was fully competent to enter an
informed guilty plea. (Plea Tr. 10). The Court further advised Davis that by pleading guilty he
was giving up all his trial rights and consenting to the entry of a judgment of guilty, and that he
would be sentenced on the basis of his guilty plea. Davis said he understood. (Plea Tr. 10-13).
1
The parties’ Guidelines stipulation in the plea agreement was not binding on the Court.
(Plea Tr. 26).
4
In addition, Davis said he understood he faced a potential maximum sentence of twenty
years’ imprisonment on Count One; a mandatory minimum of five years’ imprisonment and a
potential life sentence on Count Two that had to run consecutively to the sentence imposed on
Count One; that the decision about what sentence to impose was for the Court alone; and that if
anyone, including his attorney, had attempted to predict what sentence he would receive, that
prediction could be wrong. (Plea Tr. 16-24). In any event, Davis said that no one had made him
a promise as to what his sentence would be. (Plea Tr. 25).
Further, Davis stated that no one had threatened or coerced or forced him to plead guilty
or to enter into the plea agreement. (Plea Tr. 24-25).
As to his understanding of the plea agreement, Davis specifically confirmed that before
he signed the plea agreement, he had read it and discussed every aspect of it with Mr. Koffsky,
and that he understood the agreement at the time he signed it. (Plea Tr. 24-25). He also
confirmed he was giving up his right to appeal or otherwise challenge any sentence of 248
months’ imprisonment (the top of the stipulated Guidelines range) or less. (Plea Tr. 27).
Davis then made a factual allocution in which he stated he had been a member of the
Cruddy 650 gang, and had agreed with other members of the gang to commit crimes, including
robberies of Chase Bank on October 10, 2014, and Webster Bank on October 14, 2014; and that
he was aware handguns were used and carried by the gang in connection with robberies carried
out to further the activities of the gang. (Plea Tr. 31-32). The Court found that that constituted a
sufficient factual predicate for both the racketeering conspiracy and firearms counts. (Plea Tr.
35). Also, although Davis did not specifically allocute to the other six robberies or the March 31,
2013, shooting listed in the plea agreement as having been committed in furtherance of the
conspiracy, his attorney confirmed, consistent with the plea agreement, that Davis agreed he was
5
culpable for sentencing purposes for all of the robberies and the shooting. (Plea Tr. 32-33). In
any event, the March 31 shooting was not the sole basis for the conviction on Count Two, the
firearms count, because many of the robberies referenced in the racketeering conspiracy,
including one of the two bank robberies to which Davis specifically allocuted, involved the use
of a firearm. This was made clear on the record at the guilty plea proceeding. (Plea Tr. 30).
In an affidavit submitted in response to the 2255 motion and after Davis had waived his
attorney-client privilege, Mr. Koffsky described the extensive plea discussions he had with both
Davis and the government in the weeks prior to Davis’s guilty plea. (Koffsky aff. ¶¶ 35-46). He
also said he emailed the proposed plea agreement to Davis prior to the plea, advised him that the
proposed agreement “specified ‘all the robberies,’” and told him the decision whether or not to
plead guilty was Davis’s decision. (Koffsky aff. ¶ 44). A few days later, after he had prepared
for the suppression hearing (Koffsky aff. ¶ 45), Mr. Koffsky met with Davis on the morning of
the scheduled hearing and read him the entire proposed plea agreement, after which Davis said
he intended to plead guilty rather than proceed with the suppression hearing and trial. Davis told
Mr. Koffsky that if he were to proceed to trial, he “would get smoked.” Together, they then
prepared a statement that would constitute Davis’s factual allocution. (Koffsky aff. ¶ 46).
At Davis’s request, the Court subsequently relieved Mr. Koffsky as his attorney, and
appointed Daniel A. Hochheiser, Esq., in Mr. Koffsky’s place.
At sentencing, Davis objected to references in the PSR to his involvement in the March
31, 2013, shooting incident. (Sentencing Tr. 9-10). The Court overruled that objection (Sent. Tr.
37-39), but stated it would impose the same sentence whether the March 31 shooting was
included in the Guidelines calculation or not, and whether Davis was being held responsible for
6
the shooting or not. (Sentencing. Tr. 31-35, 39-41). 2 The Court stated: “[E]ven if I did not
consider the March 31 shooting in calculating the range or in determining what sentence to
impose, I would impose the same sentence.” (Sentencing Tr. 31-32).
With one exception, Davis did not object to the PSR’s description of the numerous
robberies listed in the plea agreement. The Court overruled that one objection. (Sentencing Tr.
38). The Court also overruled Davis’s objection to the PSR’s 4-level upward adjustment based
on his leadership role in the racketeering conspiracy, an adjustment that had been agreed to in the
plea agreement. (Sentencing Tr. 37-38). The PSR calculated the sentencing range as 168 to 210
months’ imprisonment on Count One, and 60 months’ imprisonment on Count Two, for a total
sentencing range of 228 to 270 months’ imprisonment. 3 The Court adopted that calculation.
(Sentencing Tr. 41-42).
Regarding Davis’s larceny conviction on September 4, 2013, which the plea agreement
mistakenly described as a grand larceny, the PSR correctly described that conviction as a petit
larceny. (PSR ¶ 94). In any event, because Davis ultimately served a 90-day prison sentence for
that conviction, such that the PSR correctly assessed two criminal history points, the mistake in
the plea agreement in describing that conviction as a felony had no impact on the Guidelines
calculation.
2
At sentencing, the Court made a hypothetical calculation of Davis’s Guidelines range if
the March 31 shooting was disregarded, which came out to 170 to 197 months’ imprisonment.
(Sentencing Tr. 32-33).
3
The PSR’s Guidelines range calculation was higher than the stipulated Guidelines range
in the plea agreement because the PSR correctly included, in the computation of Davis’s criminal
history category, one additional prior sentence that was not included in the plea agreement.
(Sentencing Tr. 7-9; PSR ¶ 93).
7
After hearing from the government and defense counsel, and from Davis as well, the
Court imposed a sentence of 60 months’ imprisonment on the racketeering conspiracy count and
60 months’ imprisonment on the firearms count, to run consecutively, for a total sentence of 120
months’ imprisonment. That sentence constituted a substantial downward variance from the
applicable 228 to 270 month sentencing range. 4
The judgment in this case was entered on July 14, 2017. Davis did not appeal his
conviction or sentence. Instead, on February 18, 2018, he filed the instant 2255 motion.
DISCUSSION
I.
Counsel’s Performance Was Not Ineffective
Under the familiar ineffectiveness of counsel standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), to prevail in this case Davis must (i) demonstrate that
counsel’s performance fell below an “objective standard of reasonableness,” meaning it
amounted to incompetence under “prevailing professional norms,” id. at 688, 690, and (ii)
affirmatively prove actual prejudice, meaning “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different,” id. at 694, not
merely that an error “had some conceivable effect on the outcome.” Id. at 693. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Moreover, “[j]udicial scrutiny of counsel’s performance must be highly deferential,” and the
Court “must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689. Indeed, this Court will not second-guess
strategic or tactical decisions made by counsel. This is because there are many ways to provide
4
It also constituted a substantial downward variance from the agreed-upon Guidelines
range of 211 to 248 months, and from the Court’s hypothetical Guidelines range of 170 to 197
range assuming the March 31 shooting was disregarded.
8
effective assistance in a given case. “Rare are the situations in which the ‘wide latitude counsel
must have in making tactical decisions’ will be limited to any one technique or approach.”
Harrington v. Richter, 562 U.S. 86, 106 (2011) (quoting Strickland v. Washington, 466 U.S. at
689).
In the context of plea negotiations, a defendant must establish that his attorney either
failed to communicate a plea offer or failed to provide objectively reasonable advice about the
decision to plead guilty. See Purdy v.United States, 208 F.3d 41, 45 (2d Cir. 2000). Counsel’s
determination as to how best to advise a client in this area “enjoys a wide range of
reasonableness because ‘[r]epresentation is an art,’ and ‘[t]here are countless ways to provide
effective assistance in any given case.’” Id. (quoting Strickland v. Washington, 466 U.S. at 689,
693). And of course a defendant would also have to show actual prejudice; here, that but for his
attorney’s claimed ineffectiveness, he would have gone to trial and been acquitted, or that he
would have gotten a sentence lower than the one he actually received.
Under these legal standards and the facts of this case, Davis’s ineffective assistance claim
is plainly without merit.
Davis does not claim his attorney failed to communicate a plea offer. At most, he claims
Mr. Koffsky failed to provide objectively reasonable advice.
As to the claim that Mr. Koffsky gave Davis unreasonable advice regarding the merits of
his suppression motion, and if Davis had been properly advised, he would not have waived his
hearing and pleaded guilty, Davis asserts that Mr. Koffsky “knew” Davis’s Fourth Amendment
rights were violated when law enforcement seized his cellphone on November 3, 2014, but he
nevertheless advised Davis to forego the hearing and plead guilty. First, although Mr. Koffsky
did file a motion to suppress, there is no evidence he “knew” the motion would succeed. Indeed,
9
the government’s response to the motion was that law enforcement officers seized Davis’s
cellphone incident to an arrest for which they had probable cause. According to the government,
that probable cause was based on a tip from a confidential informant that Davis was planning to
rob a bank, which led them to surveil Davis and three other persons, including the informant.
While the officers were surveilling Davis, he went into a nearby building to, according to the
informant, obtain a firearm. Davis then came out of the building and met again with the other
persons. The officers then saw the other persons head toward a bank, stopped them, and found a
note demanding $100 and $50 bills and “no dye packs.” No firearm was recovered. Shortly
thereafter, one of the officers located Davis, wearing a ski mask on his head despite the mild
temperature, rummaging around in a corner inside a nearby bodega. Davis was taken into
custody, and a cellphone was recovered from his pocket. Ultimately, the officers decided not to
file charges against Davis and released him, but they kept the cellphone. Subsequently, a
magistrate judge issued a warrant authorizing a search of the cellphone. Text messages
appearing to relate to the October 10, 2014, Chase Bank robbery were found in the cellphone.
(Government’s memorandum in opposition to pretrial motions, at 22-25; Doc. #129 in Case No.
14 CR 768).
If light of the government’s proffer, it certainly would not have been clear to a reasonable
defense attorney that Davis would, in fact, have prevailed at the suppression hearing. Perhaps he
would have prevailed, perhaps not. In any event, Mr. Koffsky’s conduct in advising his client to
accept the plea deal being offered—which, of course, took into consideration many other factors,
such as the benefit of being sentenced after a guilty plea pursuant to a plea agreement in which
the government agreed to accept a plea to a lesser-included offense under Section 924(c) and
drop other counts, rather than after a conviction at trial—was not incompetence “under
10
prevailing professional norms.” Strickland v. Washington, 466 U.S. at 690. Instead, viewing
counsel’s performance deferentially, as the Court must, counsel’s conduct clearly fell “within the
wide range of reasonable professional assistance.” Id. at 689. Moreover, Mr. Koffsky’s credible
assertions that he was prepared for the suppression hearing in the event Davis chose not to plead
guilty, that Davis himself said he “would get smoked” if he went to trial, and that Davis (not Mr.
Koffsky) made the ultimate decision to plead guilty (Koffsky aff. ¶¶ 44-46), further demonstrate
that the advice to forego the hearing and take the plea was objectively reasonable.
As to the claim that Mr. Koffsky misadvised Davis about his likely sentencing exposure,
it is clear from Davis’s own statements made under oath at the guilty plea proceeding that he
understood he faced a potential sentence of up to twenty years’ imprisonment on Count One, and
up to life imprisonment on Count Two—which, of course, were substantially in excess of the
120 month (10 year) sentence he actually received. Davis also clearly understood the decision of
what sentence to impose was the Court’s alone, and that if anyone, including his attorney, had
attempted to predict what the sentence would be, that prediction could be wrong.
And as to the allegation that his attorney misadvised him as to the particular conduct for
which he would be held responsible—specifically, that he would be held responsible for the
March 31, 2013, shooting—Davis confirmed at the guilty plea proceeding that he had read and
understood the plea agreement and had discussed it with his attorney. That plea agreement
explicitly referenced the March 31 shooting, as well as eight robberies, seven of which were
armed robberies, as conduct for which he was being held responsible. And, although it was not
necessary, given the explicit inclusion of these crimes in the plea agreement, in response to the
Court’s inquiry, Davis’s attorney confirmed on the record, consistent with the plea agreement,
11
that his client understood he was being held responsible for sentencing purposes for the robberies
and the shooting.
A defendant’s statements at his plea allocution “carry a strong presumption of verity”—
i.e., that they are true. Blackledge v. Allison, 431 U.S. 63, 74 (1977); accord, United States v.
Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (defendant’s statements at plea allocution are
conclusive absent reasons “justifying departure from their apparent truth”). In light of Davis’s
statements at his guilty plea proceeding, Davis’s claim that his attorney misadvised him about his
sentencing exposure and the scope of the conduct for which he would be held responsible are
plainly without merit.
Moreover, Davis has not shown actual prejudice. First, Davis has not shown he would, in
fact, have prevailed at a suppression hearing. As set forth above, the government proffered that
the evidence at a hearing would show the agents had probable cause to arrest Davis, and thus the
seizure of the cellphone incident to the arrest was lawful. And, even if the cellphone evidence
had been suppressed, Davis has not shown that the government’s case against him would have
been materially weakened. The government represents that at trial, it would have called four of
Davis’s co-conspirators as cooperating witnesses, each of whom would have testified he
participated with Davis in at least one robbery, and that the cooperators’ testimony would have
been corroborated by telephone toll records, surveillance videos (some of which depicted Davis
engaging in the charged conduct), and Davis’s own confession made at the time of his 2015
arrest. Given the Court’s intimate familiarity with this case—since it presided over the case for
several years and sentenced approximately ten of Davis’s co-conspirators following their guilty
pleas to various offenses committed by and behalf of the Cruddy 650 gang—the Court is
12
confident the government would likely have obtained a conviction against Davis had this case
gone to trial, even without the cellphone evidence.
Next, the sentence imposed—120 months’ imprisonment—was substantially below the
Guidelines range agreed to in the plea agreement (211 to 248 months), and substantially below
the applicable range (228 to 270 months). It was even substantially below the hypothetical
Guidelines range the Court calculated assuming the March 31 shooting was disregarded (170 to
197 months). Moreover, the Court made clear at sentencing that it would have imposed the same
sentence—120 months—even if Davis was held responsible only for the robberies, and not the
March 31 shooting.
In short, Davis has not come close to demonstrating that he would have prevailed at the
suppression hearing, or that he would have negotiated a better plea deal that would have resulted
in a sentence lower than the one he actually received, or that had he gone to trial he would have
been acquitted. Therefore, he has not shown prejudice.
II.
The Guilty Plea Was Knowing and Voluntary
Davis’s claim that his guilty plea was not knowing and voluntary because he decided to
plead guilty on the morning of his scheduled suppression hearing and did not realize he was
giving up his right to challenge the admissibility of evidence he claims was obtained unlawfully,
and also because he was under the influence of medication, is without merit.
First, Davis is barred from making these claims in a collateral proceeding because he did
not raise them on direct appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998).
But even if these claims had been preserved, the record conclusively refutes them. The
Court asked Davis about his mental health conditions and the medication he was taking, and
whether those things affected his ability to understand the proceedings. Davis said he was
13
“feeling good,” he knew what he was doing, he was ready to go forward, his mind was clear, and
he understood what was happening in court. He also confirmed that he had had enough time to
discuss his case with his attorney, he had discussed with him the charges and any possible
defenses he had, as well as the consequences of the guilty plea, and he was satisfied with his
attorney’s representation. Thus, there is no question Davis was fully competent to enter an
informed guilty plea, as the Court so found. (Plea Tr. 10).
Again, a defendant’s statements at his plea allocution “carry a strong presumption of
verity”—i.e., that they are true. Blackledge v. Allison, 431 U.S. at 74. “Absent credible reasons
for rejecting [Davis’s] statements, they establish that the plea was entered knowingly and
voluntarily.” United States v. Arias, 166 F.3d 1201 (2d Cir. 1998) (summary order). Here,
based on the statements he made at his guilty plea proceeding, Davis well understood the nature
and consequences of his decision to plead guilty. Nothing in the voluminous papers he has
submitted in support of his petition suggests his statements at the time of the plea were not true.
Moreover, Davis’s claim that by pleading guilty, he unknowingly waived his right to
challenge the admissibility of the cellphone evidence he claims was obtained unlawfully, is
frivolous. He absolutely knew he was giving up that right. He pleaded guilty on the day his
suppression hearing was scheduled—in other words, he decided to plead guilty instead of
proceeding with the hearing and trial. Mr. Koffsky’s credible assertions in this regard confirm
that that was exactly Davis decided to do. The Court finds and concludes that, by pleading
guilty, it was abundantly clear to Davis that he was giving up his right to challenge the seizure of
his cellphone and thus the admissibility of that evidence at trial. The Court specifically advised
Davis that if he pleaded guilty, he was waiving all his trial rights—including the right to require
the government to prove at a trial that he was guilty based on competent evidence beyond a
14
reasonable doubt. (Plea Tr. 11). The Court told Davis that if he went forward with the guilty
plea, “there will be no trial, and I will enter a judgment of guilty and sentence you on the basis of
your guilty plea.” When asked if he understood, Davis replied, “Yes, sir.” (Plea Tr. 13).
In any event, there is no basis for the Court to find the government’s case against Davis
would have been materially weakened had the cellphone evidence been suppressed. As
explained above, the government represents that it would have called four of Davis’s coconspirators as cooperating witnesses at trial, each of whom would have testified he participated
with Davis in at least one robbery, and that the cooperators’ testimony would have been
corroborated by telephone toll records, surveillance videos, and Davis’s own confession made at
the time of his arrest. The Court is confident the government would likely have obtained a
conviction against Davis had this case proceeded to trial, even without the cellphone evidence.
III.
Davis Was Properly Sentenced
First, to the extent Davis contends that his conviction on Count Two under 18 U.S.C. §
924(c) was based solely on the March 31, 2013, shooting, Davis is not correct. The 924(c)
conviction was predicated on the racketeering conspiracy charged in Count One, and the core of
that conspiracy was the numerous robberies that Davis planned and orchestrated in which guns
were used and carried. The prosecutor confirmed these facts on the record at the guilty plea
proceeding. (Plea Tr. 30). In fact, Davis specifically allocuted to his participation in an armed
robbery of a branch of Webster Bank in Yonkers on October 14, 2014, during which a gun was
brandished. (PSR ¶¶ 41-44). Thus, Davis was convicted on Count Two based on the use of
firearms during the course of the conspiracy’s activities, not just the March 31 shooting.
15
In any event, as explained below, in light of the Supreme Court’s decision in United
States v. Davis, 139 S. Ct. 2319 (2019), the conviction on Count Two must be vacated, and
Davis will be resentenced on Count One alone.
Second, to the extent Davis contends he was improperly sentenced based on the March
31, 2013, shooting, that contention is rejected for the following reasons: (i) his responsibility for
the March 31 shooting is clearly spelled out in his plea agreement, which, as explained above, he
read and understood before he signed it; and (ii) the Court explicitly stated at sentencing that the
sentence would be the same whether or not Davis was being held responsible for the March 31
shooting.
Third, to the extent Davis contends he was improperly sentenced based on the plea
agreement’s mistaken description of his September 4, 2013, conviction as grand larceny, that
contention is incorrect. As explained above, the PSR correctly described that conviction as a
petit larceny and, in any event, Davis ultimately served a 90-day prison sentence for that
conviction, such that the PSR correctly assessed two criminal history points. (PSR ¶ 94). See
U.S. Sentencing Guidelines §§ 4A1.1(b), 4A1.2(d)(2)(A). Therefore, the mistake in the plea
agreement in describing that conviction as a felony had no impact on the Guidelines calculation,
and it also had no impact on the Court’s ultimate sentencing decision.
IV.
The Conviction on Count Two Must Be Vacated and Davis Must Be Resentenced on
Count One
Under the reasoning of United States v. Davis, 139 S. Ct. 2319 (2019), as the government
acknowledges, Davis’s firearms conviction under Section 924(c) must be vacated. This is
because a conspiracy to commit racketeering qualifies as a “crime of violence” only under the
so-called residual clause of that statute, 18 U.S.C. § 924(c)(3)(B), which the Supreme Court has
now declared unconstitutionally vague. United States v. Davis, 139 S. Ct. at 2336. Since
16
Davis’s 924(c) conviction on Count Two was based on the racketeering conspiracy charged in
Count One, and since racketeering conspiracy is no longer a crime of violence under the statute,
the firearms conviction is invalid.
Davis has argued that if his 924(c) conviction is vacated, his total sentence would be 60
months’ imprisonment, which is the sentence the Court imposed on the racketeering conspiracy
count. Davis is incorrect. It is the Court’s obligation to impose a total sentence that comports
with the requirements of 18 U.S.C. § 3553(a), which includes taking into account, when
imposing a sentence on any count that does not carry a mandatory sentence, the effect of a
mandatory minimum consecutive sentence. See Dean v. United States, 137 S. Ct. 1170, 1175-78
(2017). The Court did exactly that in this case—it decided that after considering the whole of
Davis’s conduct, as well as his personal history and characteristics, a total sentence of 120
months’ imprisonment was sufficient but not greater than necessary to satisfy the sentencing
objectives of Section 3553(a). (Sentencing Tr. 57-67). The Court then structured the sentence to
comply with the requirements of Section 924(c); namely, the Court imposed a sentence of 60
months’ imprisonment on Count One, and a mandatory minimum sentence of 60 months’
imprisonment on Count Two, to run consecutively to the sentence on Count One, for a total of
120 months’ imprisonment. (Sentencing Tr. 67).
Since the 924(c) conviction, which carries a mandatory minimum consecutive sentence,
will be vacated, and since the conviction on the racketeering conspiracy count is not being
vacated, Davis will have to be resentenced on the racketeering conspiracy count after taking into
consideration all of his conduct as well as his personal history. See United States v. Davis, 139
S. Ct. at 2336 (“[D]efendants whose § 924(c) convictions are overturned by virtue of today's
ruling will not even necessarily receive lighter sentences: As this Court has noted, when a
17
defendant's § 924(c) conviction is invalidated, courts of appeals ‘routinely’ vacate the
defendant's entire sentence on all counts ‘so that the district court may increase the sentences for
any remaining counts’ if such an increase is warranted.) (quoting Dean v. United States, 137 S.
Ct. at 1176)).
The Court will direct the Probation Department to prepare a revised Presentence Report,
principally to recalculate the Guidelines range without reference to the Section 924(c) firearms
conviction on Count Two, although the Probation Department will be free to consider any
additional factors it deems relevant and to make any sentencing recommendation it deems
appropriate.
The Court will also re-appoint Mr. Hochheiser as Davis’s counsel for purposes of
resentencing.
V.
Davis Is Not Entitled to an Evidentiary Hearing
Finally, as to all of Davis’s various claims, there is no reason to hold an evidentiary
hearing in this case. In light of this Court’s intimate familiarity with the underlying criminal
proceedings, Mr. Koffsky’s detailed and credible affirmation, and the fact that petitioner’s
“highly self-serving and improbable assertions” are contradicted by the trial record and common
sense, no purpose would be served by adding to the combined written submissions on the 2255
motion or by otherwise expanding the record. Chang v. United States, 250 F.3d 79, 85-86 (2d
Cir. 2001); see Raysor v. United States, 647 F.3d 491, 494 (2d Cir. 2011).
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CONCLUSION
Mykai Davis’s motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence
is GRANTED IN PART and DENIED IN PART.
To the extent the motion is based on a claim of ineffective assistance of counsel or
alleged defects in Davis’s guilty plea and sentencing proceedings, the motion is DENIED.
Therefore, his conviction for conspiring to participate in the affairs of a racketeering enterprise
(Count One) must stand. However, as the government acknowledges, Davis’s firearms
conviction under Section 924(c) (Count Two) must be vacated in light of United States v.
Davis139 S. Ct. 2319 (2019). That being the case, although there is no basis to vacate Davis’s
racketeering conspiracy conviction, his sentence must be vacated and he will be resentenced on
the racketeering conspiracy count.
The Court schedules a hearing on October 4, 2019, at 11:30 a.m., at which the
government will consent to a vacatur of Davis’s conviction on Count Two, and Davis will be
resentenced on Count One.
The Court directs the Probation Department to prepare a revised and updated Presentence
Report.
The Court re-appoints Daniel A. Hochheiser, Esq., pursuant to the Criminal Justice Act,
as Davis’s counsel for purpose of resentencing.
The Court will not enter a judgment in Case No. 18 CV 1308 (VB) at this time. After
Davis is resentenced, the Court will enter an amended judgment in the criminal case and a final
judgment in the civil case.
As petitioner has not made a “substantial showing of the denial of a constitutional right,”
a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2).
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The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Chambers will mail a copy of this Opinion and Order to petitioner at the address on the
docket in Case No. 18 CV 1308 (VB).
Dated: July 30, 2019
White Plains, NY
SO ORDERED:
____________________________
Vincent L. Briccetti
United States District Judge
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