United States District Court, D. Vermont
REPORT AND RECOMMENDATION (DOC. 39)
JOHN M. CONROY, Magistrate Judge.
James W. Davis, proceeding pro se, has filed a Motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence imposed on him on March 25, 2003, following his plea of guilty to one count of possession of a firearm by a person previously convicted of a crime punishable by a term of imprisonment of one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Doc. 39.) Davis contends that he received ineffective assistance of counsel at the time of his guilty plea and at sentencing. Davis also contends that the District Court committed error in the determination of his sentence. As discussed below, I recommend that Davis's Motion be DENIED because it is barred by the applicable statute of limitations.
I. The Indictment and Plea
On May 13, 2002, a two-count Indictment was filed in this district alleging that on June 27, 2001, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), Davis possessed a Smith and Wesson 9 mm semi-automatic pistol (Count 1); and two other firearms, a Winchester Model 9422.22 caliber rifle and a Marlin Model 60SS.22 caliber rifle (Count 2), having previously sustained the following felony convictions: (1) 1989 assault and burglary in New York; (2) 1993 burglary in New York; and (3) 1995 burglary in Pennsylvania. (Doc. 1.) The Office of the Federal Public Defender was appointed to represent Davis, and he was represented from arraignment through sentencing by Assistant Federal Public Defender ("AFPD") Robert McDowell.
On November 25, 2002, a Plea Agreement signed by Davis and AFPD McDowell was filed, wherein Davis agreed to plead guilty to Count 1 of the Indictment. (Doc. 16.) Therein, Davis acknowledged understanding that by his plea he faced a possible mandatory minimum term of imprisonment of 15 years up to a maximum of life. ( Id . at ¶ 2.) Davis also acknowledged that he entered into the agreement of his own free will with a full understanding of its terms, and that he had had a full opportunity to consult with his attorney concerning the agreement. ( Id. at ¶ 14.) In exchange for Davis's plea, the government agreed to: (1) move to dismiss Count 2 at sentencing; (2) not prosecute Davis for any other offenses known to it relative to his possession of firearms; (3) recommend that Davis be sentenced to a term at the low end of the applicable sentencing guideline range, but not less than 15 years; (4) recommend that Davis receive credit for acceptance of responsibility within the meaning of USSG § 3E1.1. ( Id. at ¶ 6.) The government also agreed to refrain from objecting to the imposition of a federal sentence to run concurrently to a 10- to 15-year state sentence that Davis was serving for a conviction based on a June 27, 2001 burglary involving Davis's theft of firearms which gave rise to the federal prosecution. ( Id . at ¶ 6(e).)
On November 25, 2002, Davis appeared before United States District Judge J. Garvan Murtha to enter his plea of guilty consistent with the Plea Agreement. (Doc. 46.) The transcript of that proceeding reveals that Judge Murtha conducted the complete colloquy required by Rule 11 of the Federal Rules of Criminal Procedure. ( Id. ) Judge Murtha elicited from Davis his understanding that he faced a 15-year mandatory minimum term of imprisonment at the time of sentencing. ( Id. at 11-12.) Davis told Judge Murtha that he had had a full opportunity to discuss his plea of guilty with Attorney McDowell and that he was fully satisfied with the advice and representation he had received from McDowell. ( Id. at 16.) Davis thereupon entered a plea of guilty to having knowingly possessed the pistol alleged in Count 1, having been previously convicted of the three felony convictions for burglary and one conviction for felony assault. ( Id. at 17.) Judge Murtha accepted the plea after concluding it was knowing and voluntary. ( Id. at 17-18.)
II. The Presentence Report and Sentencing
The Presentence Report ("PSR") summarized the predicate convictions that gave rise to application of 18 U.S.C. § 924(e)(1), and the PSR concluded that Davis faced a mandatory minimum term of imprisonment of 15 years to a maximum of life pursuant to § 924(e) and a sentencing guideline range of 188-235 months. (PSR ¶¶ 101-102.) The PSR noted the following facts regarding Davis's past convictions: Davis was convicted of felony assault in 1989 in New York based on his striking of a victim with a club, and was convicted of burglary of a commercial establishment in the same year also in New York ( id. at ¶¶ 46-47); although these offenses were disposed of on the same day, they were committed in distinct episodes separated by a matter of several weeks ( id. ); Davis was convicted of residential burglary in 1993 in New York ( id. at ¶ 49); Davis was convicted of residential burglary in 1995 in Pennsylvania ( id. at ¶ 50). Davis's 2001 burglary conviction in Vermont was not included as a predicate conviction in the § 924(e)(1) determination or his criminal history calculation under the Sentencing Guidelines, as that burglary was included as part of the offense conduct that comprised the federal offenses.
Prior to sentencing, Attorney McDowell filed a Sentencing Memorandum; no objection to the application of § 924(e) was asserted therein. McDowell urged the Court to impose a sentence at the low end of the sentencing guideline range of 188-235 months and asked that the Court impose a sentence that was concurrent to Davis's state-court sentence of 10-15 years. (Doc. 18.)
On March 25, 2003, Davis appeared in the District Court for sentencing. (Doc. 47.) At the hearing, Davis did not assert any objections to the PSR, and the Court concluded that Davis had three prior convictions, as discussed above, making him subject to the 15-year mandatory minimum sentence required by 18 U.S.C. § 924(e)(1). Davis was sentenced to 188 months in prison to run concurrently with the undischarged State of Vermont sentence that he was serving at that time. (Doc. 47 at 5-7.) Davis was advised of his right to an appeal and appointment of counsel for an appeal. No direct appeal was taken.
III. Davis's § 2255 Motion
On June 19, 2014, over 11 years after his conviction became final, Davis filed the pending Motion seeking to vacate his conviction. As mentioned above, Davis makes the following two claims therein: (1) he received ineffective assistance of counsel as guaranteed by the Sixth Amendment to the Constitution; and (2) the District Court erred in his sentencing. Specifically, Davis contends that Attorney McDowell was ineffective for "grossly misinform[ing] Davis of the amount of time he could receive" and for failing to timely file a notice of appeal "after Davis specifically requested counsel to do so." (Doc. 39 at 2.) Davis also contends that the Court erred "by enhancing Davis's sentence with facts that weren't found to be true or listed in the Indictment as addressed in Alleyne v. United States, 133 S.Ct. 2151 (2013)." ( Id. ) Finally, relying on the recent Supreme Court decision in Descamps v. United States, 133 S.Ct. 2276 (2013), Davis asserts that the Court erred "in convicting [him] as a Career Criminal." ( Id .)
The government opposes Davis's Motion, asserting that it is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2255. (Doc. 51.) The government also contends that this is not the rare, exceptional case where equitable tolling might be warranted. ...