Davis v. United StatesDavis v. United States
Calvin Davis pleaded guilty in 2010 to, a narcotics conspiracy charge pursuant to a written plea agreement providing that he would be sentenced to a term equal to 66 percent of either the low end of the sentencing range advised by the Sentencing Guidelines or the statutory minimum term, whichever. was greater. See Fed. R.Crim.P. 11(c)(1)(C). Davis expectqd to receive a prison term of no more than 80 months. However, the Guidelines range as subsequently calculated by the probation officer and adopted by the district court turned out. to be much longer than the parties had expected it would be. The court ultimately ordered Davis to serve 172 months in prison, a term that was equal to 66 percent of the low end of the Guidelines range and therefore consistent with the plea agreement, but. more than twice what the parties had anticipated when they entered into that agreement. No appeal was filed from the sentence. But more than four years later, following the Supreme Court’s decision in Alleyne v. United States, — U.S. -,
I.
In 2008, Davis became involved with a Rockford, Illinois drug ring led by Hollis Daniels that trafficked primarily in heroin and occasionally crack cocaine. See United States v. Block,
Davis, pleaded guilty to the conspiracy charge pursuant to a written plea agreement. Davis agreed to continue cooperating with the government and to provide truthful testimony in any subsequent proceeding. In exchange for his assistance, the government agreed to ask the court to depart downward from either the applicable statutory minimum term of imprisonment or the low end of the advisory range
The agreement recognized in several ways, however, that the parties’ Guidelines calculations were preliminary and that both the Guidelines range and the final sentence might-ultimately turn out to be different than the parties assumed at the time they entered into the agreement. Thus, iñ recounting the parties’ calculations as to Davis’s criminal history and the anticipated Guidelines range, for example, the agreement noted that the calculations were “based on the facts now known to the government.” R. 300 at 6 ¶ 10(c) & (d). More to the point, the agreement expressly recognized that the parties’ Guidelines calculations were tentative, that the calculations might change following the probation officer’s investigation, and that any such changes would not constitute а basis for a withdrawal of Davis’s guilty plea:
Defendant and his attorney and the government acknowledge that the above Guideline calculations are preliminary in nature, and are' non-binding predictions upon which neither party is entitled to rely. Defendant understands that further review of the facts or applicable legal principles may lead the government to conclude that different or addi- . tional Guideline provisions apply in this case. Defendant' understands that the Probation Office' will conduct its ■ own investigation and that the Court ultimately determines the facts and law relevant to sentencing, and that the Court’s determinations govern" the final Guideline calculation. Accordingly,- the validity of this Agreement is not contingent upon the probation officer’s or the Court’s concurrence with the above calculations, and defendant shall not have a right to withdraw his plea on the basis of the Court’s rejection of these calculations.
R. 300 at 7 ¶ lOe. The agreement similarly acknowledged that any’ errors in correсting or interpreting' the Guidelines could be corrected by either party prior to
As it turned out, the probation officer’s presentence investigation and report produced Guidelines calculations that were much less favorable to Davis than those set forth in the plea agreement. Davis previously had served in the United States Army, and after receiving his military records, the probation officer learned that Davis had, contrary to his representation to her, been discharged from the Army on other than honorable terms
When Davis was sentenced on October 13, 2010, the district court ádopted the Guidelines calculations set forth in the pre-sentence report. Judge Kapala acknowledged that the resulting sentencing range was higher than the parties had anticipated in the plea agreement, but attributed the bulk of the difference to the fact that “the attorneys did not anticipate that [Davis] would lie to the probation officer
Davis did not appeal from the sentence imposed. Indeed, in the plea agreement, Davis had largely waived his right to both appeal his conviction and sentence and to seek collateral relief under section 2255:
Waiver of appellate and collateral rights. Defendant further understands he is waiving all appellate issues that might have been available if he had exercised his right to trial. Defendant is aware that Title 28, United States Code, Section 1291, and Title 18, United States Code, Section 3742, afford a defendant the right to appeal his conviction and the sentence imposed. Acknowledging this, if the government mаkes a motion at sentencing for a downward departure pursuant to Sentencing Guideline § 5K1.1, defendant knowingly waives the right to appeal his conviction, any pre-trial rulings by the Court, and any part of the sentence (or the manner in which that sentence was determined), including any term of imprisonment and fine within the máximums provided by law, in exchange for the concessions made by the United States in this Plea Agreement. Defendant also waives his right to challenge his conviction and sentence, and the manner in which the sentence was determined, and (in any case in which the term of imprisonment and fine are within the máximums provided by statute) his attorney’s alleged failure or refusal to file a notice of appeal, in any collateral attack or future challenge, including but not limited to a motion brought under Title 28, United States Code, Section 2255. The waiver in this paragraph does not apply to a claim of involuntariness, or ineffective assistance of counsel, which relates directly to this waiver or to its negotiation, nor does it prohibit .defendant from seeking a reduction of sentence based directly on a change in the law that is applicable to defendant and that, prior to the filing of defendant’s request for relief, has been expressly made retroactive by an Act of Congress, the Supreme Court, or the United States Sentencing Commission.
R. 300 at 12-13 ¶ 19b.
On May 31, 2014, Davis submitted his pro se motion for relief under section 2255. As relevant here, the motion attacked his guilty plea and sentence on three grounds. First, Davis alleged that he was deprived of the effective assistance of counsel when, at the time of his guilty plea, his lawyer “grossly misinformed” him as to the potential sentence he could receive.
The district court dismissed Davis’s section 2255 request on its own motion as
We granted Davis a certificate of ap-pealability with respect to the claim that his counsel was ineffective for failing to file a notice of appeal, and we also appointed counsel to represent Davis in this appeal. In briefing the appeal, Davis’s counsel has addressed other aspects of Davis’s request for relief under section 2255, which may be construed as an implicit request to expand the certificate of appealability. It is not strictly necessary for us to rule on that request because, as we explain below, the district court correctly concluded that Davis’s section 2255 motion was untimely.
II.
We would be remiss if we did not begin our analysis by noting the first and most obvious- potential obstacle to relief for Davis, which is his waiver of the right to appeal his conviction and sentence and to seek collateral relief under section 2255. We have repeatedly enforced such waivers in the face of claims, not unlike Davis’s, that a defendant was sentenced to a term of imprisonment significantly greater than he was led to expect at thе time of his guilty plea. See United States v. Smith,
We start with the Alleyne claim. Indubitably, this claim, which is based on a change in law post-dating Davis’s plea and sentence, is one' that is not barred by the plea agreement’s waiver. R. 300 at 13 ¶ 19b; see also § 2255(f)(3). But there are, nonetheless, multiple problems with the claim. Alleyne holds that any factual determination that increases the statutory mandatory minimum term to which a defendant is subject (in that case, the fact that a defendant “brandished” a gun) must be -charged in the indictment and proven beyond reasonable doubt to .the factfinder.
This brings us to the timeliness of the other claims presented in Davis’s section 2255 motion. Section 2255(f) imposes a one-year time limit on the claims asserted in a section 2255 motion. Although that period may have begun at different times for different aspects of Davis’s 2255 motion, we cannot discern a scenario under which any of the other claims were timely. To the extent Davis is complaining of errors madе at his sentencing or his attorney’s ineffectiveness with respect to the plea agreement, those claims were known to Davis at the time his conviction became final — which as the district court noted, was on October 27, 2010, when the 14-day time to file an appeal from his conviction and sentence expired. Thus, Davis had until October 27, 2011, to seek collateral relief on those claims.. See § 2255(f)(1). As to claims based on subsequent changes in Supreme Court jurisprudence, the period begins to run on the date that the Supreme Court recognizes a right or (as relevant here) deems the right applicable to cases on.‘ collateral review. See § 2255(f)(3). With respect to the claim of attorney ineffectiveness based on the failure of Davis’s counsel to follow his instruction and file a timely appeal following his sentencing, we may assume that Davis did not immediately realize, at the conclusion of the 14-day period in which such an appeal could have been filed, that his counsel had, in fact, filed no appeal. Still, our cases recognize that a defendant bears a duty of. diligence in monitoring the status of his appeal. See Ryan v. United States,
III.
For all of the reasons we have discussed, the district court properly denied/dismissed Davis’s section 2255 motion.
AFFIRMED
Notes
. Citations to the record in Davis’s criminal prosecution take the form of "R.-.” Citations to the record in Davis's section 2255 proceeding take the form of "2255 R.-.”
. The probation officer characterized Davis's discharge as dishonorable.. Davis’s counsel represents that, upon further investigation, it appears that Davis actually received a so-called "bad conduct” discharge, which is a somewhat less serious, although still negative, form of discharge.
. The probation officer also noted that Davis had failed to appear at a meeting convened to discuss the discrepancy, but the district court did not consider that absence when it imposed the enhancement for obstruction of justice. R. 875 at 9, 11.
. Counsel suggests that because Davis served more than one term in the, military, Davis may have been confused as to which discharge the probation officer was asking him about rather than deliberately attempting to misrepresent the circumstances of his discharge, However, any error as to the enhancement for obstruction of justice would fall within the scope of the appeal and collateral relief waiver we- discuss below. The .same is true with respect to counsel’s additional representation that Davis had disclosed and discussed his bigamy conviction with the probation оfficer.
.The probation officer and the district judge agreed that despite the enhancement for obstruction of justice, Davis should still receive credit for acceptance of responsibility given the extent of his cooperation with and assis- ' tance to the government. See U.S.S.G. § 3É1.1, comment, (n.4).
. On September 22, 2015, Davis's sentence was reduced by agreement to 138 months pursuant to Guidelines amendment 782, which lowered the offense level for his narcotics-related offense. See 18 U.S.C. § 3582(c)(2).
. Davis suggests that he should be able to claim thе benefit of Alleyne without the Supreme Court first declaring Alleyne retroactive because his case never had the airing that it would have had in a direct appeal (whether as a result of' the appeal waiver in the plea agreement or his attorney’s alleged ineffectiveness in not filing an appeal). Davis Br. at. 18-19. But one has nothing to do with the other. . Alleyne was decided several years after Davis’s conviction .became final. And as our decision in Simpson makes clear, we'simply do not have the authority to declare Alleyne applicable retroactively on collateral review — oiily the Supreme Court "hаs that power.
. We previously left this question open. Taylor v. Michael,
. See 28 U.S.C. § 2241(d)(1), setting forth time limits for a petition under section 2254 which parallel those of section 2255(f).
. Davis has suggested in his reply brief that the government breached the plea agreement by advocating for the sentencing enhancements (including the enhancement for obstruction of justice) that substantially lengthened the advisory Guidelines range. See Davis Reply at 7-8. We find nothing in the plea agreement that bars the government from agreeing with enhancements proposed by the probation officer, however. See R. 300 at 7 ¶ lOe. And, of course, the government did move for the section 5K1.1 departure from the bottom of tire Guidelines range as anticipated by the agreement.