Davis v. USA
Filing
17
ORDER DENYING POST-JUDGMENT MOTIONS as to Petitioner Darryl Lamont Davis. Davis motions 4 , 5 , 8 , 15 , and 16 are DENIED. Becausethe Court finds that reasonable jurists would not debate whether Davis Rule 59 motion shouldhav e been resolved differently or that the issues presented herein are deserving of furtherencouragement, the Court denies a certificate of appealability from this decision. Signed by District Judge Pamela L. Reeves on 5/21/19. (c/m to Darryl Lamont Davis 31799-074 HAZELTON F-1 U.S. PENITENTIARY Inmate Mail/Parcels P.O. BOX 2000 BRUCETON MILLS, WV 26525) (ADA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DARRYL LAMONT DAVIS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
)
)
)
)
)
)
Nos.:
3:07-CR-66-PLR-HBG;
3:14-CV-299-PLR
ORDER DENYING POST-JUDGMENT MOTIONS
Before the Court are Petitioner Darryl Lamont Davis’ motions: (1) to alter or amend the
judgment denying his motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 [Doc.
4]; (2) to compel and subpoena evidence [Doc. 5]; (3) to indict various Government officials [Doc.
15]; and (4) to appoint counsel to assist him with his post-judgment motions [Docs. 8,16]. The
United States has filed a response in opposition to Davis’ motion to alter the judgment [Doc. 14].
Upon review of the pleadings and the record in this cause, along with the applicable law, the Court
finds Davis’ motions should be denied.
I.
RELEVANT FACTUAL BACKGROUND
In mid-2007, Davis, a convicted felon, robbed a bank and two convenience stores in
Knoxville, Tennessee, while brandishing a semi-automatic pistol [Doc. 26 in No. 3:07-CR-66;
Doc. 136 p. 7-8, 16-18, 48-52, 98-99 in No. 3:07-CR-66]. While fleeing after the crimes, Davis
discarded two hats and a ski mask, and DNA was recovered from the hats [Doc. 136 p. 10-11, 1617, 32-35, 52-53, 64-66 in No. 3:07-CR-66; Doc. 137 p. 9, 104-10 in No. 3:07-CR-66].
Following Davis’ arrest, his DNA was twice obtained via buccal swabs – first pursuant to
a federal grand jury subpoena, and then after his indictment, pursuant to a federal search warrant
– and both of those DNA samples matched the DNA recovered from the hats [See Doc. 104 p. 2
n.1 in No. 3:07-CR-66; Doc. 137 p. 104-10 in No. 3:07-CR-66; Doc. 160 in No. 3:07-CR-66]. In
the meantime, Davis had persuaded his girlfriend to move the pistol used in the robberies, but
federal agents later found the weapon and recovered it [Doc. 137 p. 46-53, 63-66 in No. 3:07-CR66].
In 2009, a jury convicted Davis of bank robbery, two counts of Hobbs Act robbery, three
counts of brandishing a firearm in furtherance of crimes of violence, possessing a firearm as a
felon, and tampering with evidence with the intent to prevent its availability for use as evidence
against him, all in violation of federal law [Doc. 100 in No. 3:07-CR-66]. Davis was sentenced to
an aggregate term of 762 months’ imprisonment, consisting of the consecutive statutorily
mandated minimum sentences for the use-of-firearms convictions during a crime of violence
(hereinafter “§ 924(c) convictions”), and 78 months’ imprisonment for the other five offenses
[Doc. 125 in No. 3:07-CR-66]. The Sixth Circuit affirmed Davis’ convictions and sentences on
appeal and denied his subsequent petition for rehearing, after which the Supreme Court denied
certiorari [Docs. 149, 150, 153 in No. 3:07-CR-66].
Thereafter, Davis filed a timely § 2255 motion containing claims concerning the buccal
swabs taken from him for DNA analysis [Doc. 154 in No. 3:07-CR-66]. Specifically, Davis
alleged that his attorney rendered ineffective assistance for (1) not moving to suppress all evidence
on the ground that the first DNA swab was illegally obtained; (2) not presenting certain evidence
and arguments regarding the swab during trial; and (3) not alleging government misconduct and
“malicious prosecution” on appeal [Id. at 4-8]. He also alleged that the government prosecuted
him in “bad faith” and suppressed from trial evidence of the first swab, which was allegedly
favorable to the defense [Id. at 8]. The Government responded in opposition to the motion [Doc.
2
160 in No. 3:07-CR-66]. Davis submitted a reply to the Government’s response [Doc. 163 in No.
3:07-CR-66]. On July 27, 2017, this Court denied Davis’ motion, determining that he was not
entitled to § 2255 relief and finding that no evidentiary hearing was necessary [Docs. 175, 176 in
No. 3:07-CR-66].
On or about August 25, 2017, Davis filed a motion to alter or amend judgment under
Federal Rule of Civil Procedure 59(e) [Doc. 4]. In his Rule 59 motion, Davis alleges that the Court
erred by denying his § 2255 motion, but he also seeks to litigate several new issues for the first
time – specifically, whether his § 924(c) convictions were invalidated by Johnson v. United States,
135 S. Ct. 2551 (2015) and Welch v. United States, 136 S. Ct. 1257 (2016), and whether his
sentence for the “underlying offenses” was invalidated by Dean v. United States, 137 S. Ct. 1170
(2017). Davis also filed concomitant motions to compel evidence, to indict government officials,
and to appoint counsel [Docs. 5, 8, 15, 16]. In the meantime, Davis also filed a notice of appeal
from the denial of his § 2255 motion, which is being held in abeyance pending resolution of Davis’
Rule 59 motion [Doc. 10; see also Docs. 186, 191 in No. 3:07-CR-66].
II.
MOTION TO ALTER OR AMEND
Rule 59(e) of the Federal Rules of Civil Procedure allows a petitioner to move to alter or
amend a judgment within twenty-eight days after entry of the judgment. See Fed. R. Civ. P. 59(e).
Such a motion may only be granted “to correct a clear error of law; to account for newly discovered
evidence or an intervening change in the controlling law; or to otherwise prevent manifest
injustice.” Volunteer Energy Servs., Inc. v. Option Energy, LLC, 579 F. App’x 319, 330 (6th Cir.
2014) (quoting Doran v. Comm’r of Soc. Sec., 467 F. App’x 446, 448 (6th Cir. 2012)). A Rule 59
motion may not be used to relitigate issues out of dissatisfaction with the Court’s initial ruling, nor
may it be used to offer a new, independent basis for a criminal defendant to challenge his sentence.
3
See, e.g., Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008) (explaining that Rule 59(e)
“allows for reconsideration; it does not permit parties to effectively ‘reargue a case’”); see also
Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 477 (6th Cir. 2007) (noting “Rule 59(e)
motions ‘are aimed at reconsideration, not initial consideration’”) (citation omitted).
A.
Davis’ challenges to the Court’s conclusions
Davis alleges four discrete errors in this Court’s denial of his § 2255 motion. In his first
two claims of error, he contests the accuracy of this Court’s statements that “the Supreme Court .
. . has not addressed whether DNA samples obtained from grand jury subpoenas are permissible,”
and that “analysis of the first swab had not been completed before the Government obtained the
warrant and the second swab” [Doc. 4 p. 3]. Next, he faults the Court for not conducting an
evidentiary hearing and for not requiring the Government to produce the grand jury subpoena for
the initial buccal swab [Id. at 4].
First, Davis has not shown any error in the Court’s statement that “the Supreme Court. . .
has not addressed whether DNA samples obtained from grand jury subpoenas are permissible,” as
he has failed to identify a Supreme Court case involving the factual scenario addressed by the
Court. [Doc. 175 p. 5 in No. 3:07-CR-66]. Rather, he only argues that the Fourth Amendment
demands that evidence from warrantless searches not falling under an exception to the warrant
requirement usually be excluded [Doc. 4 p. 11-13]. His arguments have no bearing on the question
posed in this case, however. Because the initial buccal swab was not precluded by controlling
precedent at the time, suppression of the evidence would not have been required even if the swab
had been illegally obtained. See United States v. Master, 614 F.3d 236, 242 (6th Cir. 2010)
(finding “the decision to exclude evidence is divorced from whether a Fourth Amendment
4
violation occurred”). Accordingly, this claim fails to warrant reconsideration of the Court’s
judgment.
Next, Davis disputes the Court’s factual finding that “analysis of the first swab had not
been completed before the Government obtained the warrant and second swab” [Doc. 4 p. 3].
According to Davis, this conclusion was erroneous, because an FBI report indicated that
“preliminary results” from the initial buccal swab were “back from the laboratory” at the time the
second buccal swab was taken from him [Doc. 4 p. 13-14]. However, the report’s use of
“preliminary” confirms the Court’s conclusion that analysis was not yet complete. Indeed, the FBI
laboratory did not issue a report regarding analysis of the first swab until July 31, 2017, nine days
after the second buccal swab had been obtained from Davis [See, e.g., Doc. 15 p. 8-11]. Therefore,
this claim offers no basis for relief under Rule 59(e).
Third, Davis has not demonstrated that an evidentiary hearing was necessary in this case,
and therefore, he cannot prove that the Court erred by not conducting one. The claims in his §
2255 motion do not involve disputed facts; they involve disputes about the legal significance of
undisputed facts. See, e.g., Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007) (holding
hearing required to resolve factual dispute).
Moreover, the Court found that the record
conclusively showed that Davis was not entitled to relief, and therefore, no hearing was necessary.
See Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). Accordingly, the absence of
an evidentiary hearing in this case offers no basis for reconsideration of the denial of Davis’ §
2255 motion.
Fourth, Davis faults the Court for not requiring the Government to produce the grand jury
subpoena for the initial buccal swab, arguing that the evidence was presumptively favorable to the
defense [Doc. 4 p. 4, 14-15]. However, Davis did not raise this claim in his § 2255 motion. Instead,
5
he claimed that the Government had allegedly suppressed “K1,” the first buccal sample [Doc. 154
p. 8 in No. 3:07-CR-66].
After reviewing the record, this Court found Davis’ allegation
“inconsistent with the trial record,” noting that Davis received “all of the testing results of his
DNA” and that he had not shown that “any evidence was withheld that could have either
exculpated him or impeached the forensic analyst or any other Government witness” [Doc. 175 p.
15]. Davis has not demonstrated that this conclusion was erroneous, and this claim provides no
further basis for review.
B.
Davis’ new claims
Also in his Rule 59(e) motion, Davis seeks relief in light of the Supreme Court’s decisions
in Johnson, Welch, and Dean, which held, respectively, that the residual clause of the Armed
Career Criminal Act was unconstitutionally vague (Johnson, 135 S. Ct. at 2563), that the ruling
was retroactively applicable to cases on collateral review (Welch, 136 S. Ct. at 1265), and that
sentencing courts may consider the mandatory minimums required by § 924(c) when selecting the
sentence for a predicate offense (Dean, 137 S. Ct. at 1176-77). However, Davis’ motion for
reconsideration is “actually a second or successive § 2255 motion in disguise,” and requires Sixth
Circuit authorization before the Court may consider it. See In re Nailor, 487 F.3d 1018, 1023 (6th
Cir. 2007) (noting post-judgment criminal motion attempting to raise new claim is effectively a §
2255 motion); see also 28 U.S.C. §§ 2244(2) and 2255(h).
Regardless, none of the cited authority justifies relief in this case. Davis was not sentenced
as an armed career criminal, so his reliance on Johnson and Welch is misplaced. Additionally,
Dean merely altered the factors a court may consider at sentencing, thereby announcing a
procedural rule with no retroactive effect. See Schriro v. Summerlin, 542 U.S. 348, 351, 353
(2004) (explaining that a rule is deemed substantive and “generally appl[ies] retroactively” only if
6
it “alters the range of conduct or class of person that the law punishes”); see also United States v.
Clark, No. 2:14-CR-20199, 2018 WL 3207975, at *4 (E.D. Mich. June 29, 2018) (holding “Dean’s
new rule is not eligible for retroactive application on collateral review”). Therefore, this newly
presented claim fails to offer Davis relief.
C.
Summary
Davis has failed to identify any legal or factual issue that the Court failed to consider or
erroneously decided, and the Sixth Circuit has not authorized him to litigate new claims under
Johnson, Welch, or Dean. Accordingly, Davis’ Rule 59(e) motion will be denied. Likewise, the
Court finds Davis’ attendant motions to compel records and subpoena witnesses [Doc. 5] and to
indict various government officials1 [Doc. 15] void of merit, and they will be denied.
III.
MOTION TO APPOINT COUNSEL
Davis has filed two motions seeking the appointment of counsel to assist him in this and
future proceedings [Docs. 8, 16]. However, this Court has found that Davis’ allegations are
meritless, and that an evidentiary hearing is not warranted. Accordingly, Davis’ motions for the
appointment of counsel will be denied. See 18 U.S.C. § 3006A(a)(2) (authorizing court to appoint
counsel for § 2255 applicant when it “determines that the interests of justice so require”); Rule
8(c) of the Rules Governing Section 2255 Proceedings in the United States District Courts
(requiring court to appoint attorney to indigent defendant in § 2255 proceeding if evidentiary
hearing is warranted).
1
The Court otherwise notes that private citizens have no authority to initiate federal
criminal proceedings. See, e.g., Diamond v. Charles, 476 U.S. 54, 64-65 (1986).
7
IV.
CONCLUSION
For the reasons stated above, Davis’ motions [Docs. 4, 5, 8, 15, 16] are DENIED. Because
the Court finds that reasonable jurists would not debate whether Davis’ Rule 59 motion should
have been resolved differently or that the issues presented herein are deserving of further
encouragement, the Court denies a certificate of appealability from this decision. See Miller-El v.
Cockrell, 537 U.S. 322, 326 (2003).
IT IS ORDERED.
ENTER:
________________________________________
__ _ __
__
_
__
_
________________________________________
CH
CHIEF UNITED STATES DISTRICT JUDGE
S
JUDGE
CHIEF
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?