Davis v. United States of America

Filing 35

ORDER DISMISSING CASE. Signed by Judge J. Daniel Breen on 11/16/18. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BRAD DAVIS,
Petitioner,
v.

No. 1:13-cv-01225-JDB-egb
No. 1:07-cr-10063-JDB-1

UNITED STATES OF AMERICA,
Defendant.
______________________________________________________________________________
ORDER DISMISSING CASE
______________________________________________________________________________
Before the Court is the report of Petitioner, Brad Davis, informing it of the United States
Supreme Court’s denial of certiorari in Harper v. United States, No. 17-7613. (No. 1:07-cr10063-JDB-1, Docket Entry (“D.E.”) 102.) The Court stayed this case pending the resolution of
Harper on August 24, 2018. (No. 1:13-cv-01225-JDB-egb, D.E. 33.) Because the Court finds
the denial of certiorari in Harper determinative in Petitioner’s civil case, along with the reasons
below, the petition is DISMISSED.
In Claim 1, Petitioner argues that, under Descamp v. United States, 570 U.S. 254 (2013),
and Alleyne v. United States, 570 U.S. 99 (2013), his prior felony convictions no longer qualify
as predicate offenses to enhance his sentence under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). (No. 1:13-cv-01225-JDB-egb, D.E. 1 at 3.) Neither case warrants relief.
In Alleyne, the Supreme Court held that defendants have a Sixth Amendment right to a
jury finding of all facts that increase the statutory minimum sentence. Alleyne, 570 U.S. at 102.
Alleyne was decided after Petitioner’s conviction became final after direct appeal, but “has not

been made retroactive to cases on collateral review by the Supreme Court.” In re Mazzio, 756
F.3d 487, 489–90 (6th Cir. 2014). Petitioner’s reliance on Alleyne is therefore misplaced.
In Descamp, “the Supreme Court clarifie[d]” the categorical and modified categorical
“approach[es] that sentencing courts must use to determine if a prior conviction is a predicate
offense under the ACCA.” United States v. Mitchell, 743 F.3d 1054, 1063 (6th Cir. 2014). See
Descamp, 570 U.S. at 261-62.

Petitioner essentially reasserted his Descamp argument in

advancing his Johnson claim, insisting that his juvenile aggravated assault conviction did not
qualify as an ACCA predicate under the categorical approach. (See No. 1:16-cv-01071-JDBegb, D.E. 9.) 1 Therefore, for the same reason that the Court has denied Petitioner’s Johnson
claim, it rejects that portion of Claim 1 which relies on Descamp.
For these reasons, Claim 1 is DENIED.
In Claim 2, Petitioner asserts that his attorney rendered ineffective assistance by advising
him that he would receive a sentence in the range of 77–96 months. (No. 1:13-cv-01225-JDBegb, D.E. 1 at PageID 13.) He insists that he would not have pleaded guilty had he been properly
advised of his potential sentencing exposure under the ACCA. (Id., D.E. 1 at PageID 14.)
Respondent argues that, even if counsel misadvised her client, Petitioner has not shown that
counsel’s conduct prejudiced him. 2 (Id., D.E. 6 at PageID 35.)

1

The Johnson claim was presented and argued by way of a petition for habeas corpus
under 28 U.S.C. § 2241, filed in No. 1:16-cv-01071-JDB-egb. On August 9, 2017, the Court
found that the claim could not be brought in a § 2241 petition, and dismissed the case. (No.
1:16-cv-01071-JDB-egb, D.E. 16.) By that same order, the Court construed the § 2255 Petition
in the present case as asserting a Johnson claim. (Id., D.E. 16 at PageID 65.)
2

Respondent also argues that Petitioner’s attorney did, in fact, advise him that he could
receive an enhanced sentence under the ACCA (No. 1:13-cv-01225-JDB-eg, D.E. 6 at PageID
35), but failed to file a supporting affidavit from counsel.

A claim that an attorney’s ineffective assistance has deprived a criminal defendant of his
Sixth Amendment right to counsel is controlled by the standards stated in Strickland v.
Washington, 466 U.S. 668 (1984). To succeed on such a claim, a petitioner must demonstrate
two elements: (1) “that counsel’s performance was deficient”; and (2) “that the deficient
performance prejudiced the defense.” Id. at 687.
To establish prejudice in the plea context, a petitioner must show that if his counsel had
not given him erroneous advice, there was a “reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and instead would have insisted on going to trial.” Hill
v. Lockhart, 474 U.S. 52, 59 (1985). The reasonable probability test is objective, not subjective;
the petitioner “must convince the court that a decision to reject the plea bargain would have been
rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
Petitioner, here, has not met Strickland’s prejudice prong. To begin with, his mere
allegation that he would have proceeded to trial but for his attorney’s conduct is not enough to
meet the objective prejudice test. See Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012)
(“Pilla cannot make [the prejudice] showing merely by telling us now that she would have gone
to trial then if she had gotten different advice. The test is objective, not subjective . . . .”).
In addition, the colloquy at the change-of-plea hearing “cured any misunderstanding” that
Petitioner “may have had about the consequences of his plea.” Ewing v. United States, 651 F.
App’x 405, 410 (6th Cir. 2016). This Court advised Davis what his sentencing exposure would
be “if it [were] determined that [he had] three prior violent felonies or serious drug offense
convictions.” (No. 1:07-cr-10063-JDB-egb, D.E. 92, at PageID 292.) The Court asked him
twice if he understood the possible penalties, and he responded “Yes, sir.” (Id., D.E. 92 at
PageID 293.) When asked if anyone had promised or predicted what his sentence would be, he

stated under oath “No, sir.” (Id., D.E. 92 at PageID 296-97.) Petitioner has not submitted any
evidence to undermine his sworn testimony. He has therefore failed to establish a reasonable
probability that, but for counsel’s alleged deficient performance, he would not have pled guilty
and would have insisted on going to trial.
For these reasons, Petitioner has not shown that counsel’s alleged deficient performance
prejudiced him. Claim 2 is therefore DENIED.
For these reasons, the Petition is DENIED.
IT IS SO ORDERED this 16th of November 2018.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT COURT