Davis v. United States ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Jonathan Frank Davis, No. CV-20-01717-PHX-DGC (ESW) 11 Petitioner, No. CR-17-00841-PHX-DGC 12 v. (Related Criminal Case) 13 United States of America, ORDER 14 Respondent. 15 16 Jonathan Davis pled guilty to transporting individuals to engage in prostitution in 17 violation of 18 U.S.C. § 2421 and was sentenced to 78 months in prison and five years of 18 supervised release. CR Docs. 155, 156.1 He moves to vacate his sentence pursuant to the 19 federal habeas statute, 28 U.S.C. § 2255. Doc. 1. Magistrate Judge Eileen Willett issued 20 a report recommending that the motion be denied without an evidentiary hearing (“R&R”). 21 Doc. 36. Davis filed a response to the R&R and the government responded. Docs. 37, 38. 22 For reasons stated below, the Court will accept the R&R and deny Davis’s motion. 23 I. Background. 24 Davis was charged in a second superseding indictment with crimes relating to his 25 alleged conspiracy with another individual to recruit one minor female, S.W., and three 26 adult females, R.W., M.S., and B.H., to engage in commercial sex acts in California, 27 1 Citations to “CR Docs.” refer to documents filed in United States v. Davis, No. 28 2:17-cr-00841-DGC-1, the criminal case underlying Davis’s § 2255 motion. 1 Nevada, and Arizona. CR Doc. 130. Davis waived his right to a jury trial and the Court 2 set a bench trial for February 12, 2018, at which the government intended to call minor- 3 victim S.W. and adult victim R.W. as witnesses, among others. Doc. 36 at 6. The day 4 before trial, S.W. contradicted many of her prior statements. CR Doc. 149-1 at 1. The 5 morning of trial, S.W. appeared for her testimony and R.W. did not. Doc. 36 at 6. R.W. 6 sent text messages to the government stating that she was “too scared to do this court thing 7 anymore” and that she was not coming to testify. Doc. 1 at 7. 8 That same morning, the government extended a plea offer to Davis, which he 9 accepted. This was the government’s fifth plea offer in the case; Davis had rejected four 10 others. Doc. 36 at 6. Davis pled guilty to transporting adult victims B.H. and R.W. from 11 California to Arizona with the intent that they engage in prostitution. CR Doc. 156 at 1, 7. 12 The plea agreement stipulated to a term of imprisonment between 60 and 84 months, 13 followed by five years of supervised release. Id. at 3. The Court held a change of plea 14 hearing and found, after a Rule 11 colloquy, that Davis knowingly, intelligently, and 15 voluntarily pled guilty. CR Doc. 178 at 18. The Court accepted Davis’s guilty plea and 16 deferred acceptance of the plea agreement until sentencing. Id. at 19. 17 During the sentencing hearing on June 14, 2018, the Court and Davis discussed a 18 recent letter Davis had written to the Court stating that he wanted to withdraw his guilty 19 plea. CR Doc. 179 at 2-3. Davis explained that he had concerns about the sentence running 20 consecutively to one he was already serving and about a sex-offender-registration provision 21 requested by the government. Id. at 3-4. After consulting with his attorneys during the 22 hearing, Davis elected not to withdraw his guilty plea and continued with the sentencing. 23 Id. at 5. The Court accepted the plea agreement and sentenced Davis to 78 months, 24 followed by five years of supervised release. CR Doc. 155 at 1. The Court dismissed the 25 other counts of the superseding indictment, including those related to minor-victim S.W. 26 CR Docs. 155 at 1; 130. 27 On June 26, 2016, Davis filed a notice of appeal. CR Doc. 158. He argued that “the 28 ‘coercive plea bargaining process’ and possibility of receiving a severe sentence if he 1 proceeded to trial rendered his guilty plea involuntary,” and challenged certain conditions 2 of his supervised release. CR Doc. 192-1 at 2; see also United States v. Davis, 785 F. 3 App’x 374, 375 (9th Cir. 2019) (mem.). The Ninth Circuit dismissed the appeal, finding 4 that the appeal waiver in his plea agreement was valid and enforceable and that his guilty 5 plea was knowing and voluntary. CR Doc. 192-1 at 3. The Supreme Court denied review. 6 Davis v. United States, 141 S. Ct. 178 (2020) (mem.). 7 II. Davis’s § 2255 Motion and Judge Willett’s R&R. 8 Davis asserts three grounds for relief in his motion. Ground one argues that his trial 9 attorneys were ineffective in not informing Davis, before he accepted the plea offer, of 10 S.W.’s last-minute changes to her testimony. Id. at 3. Ground two asserts that Davis has 11 new evidence not previously seen by the Court – text messages regarding R.W.’s non- 12 appearance on the morning of trial and a letter he wrote to his parents about how S.W.’s 13 changes in her testimony would have affected his plea decision. Id. at 3-4. Ground three 14 asserts that the plea bargaining process was “coercive” and that “the possibility of receiving 15 a severe sentence if [he] proceeded to trial rendered [his] guilty plea involuntary.” Id. at 4. 16 After briefing of Davis’s § 2255 motion had concluded, he requested permission to 17 file a supplement. Doc.32. Judge Willett granted the request and Davis filed additional 18 material. The supplement asserts that the government committed Brady violations by 19 failing to disclose R.W.’s unavailability and S.W.’s retractions before he accepted the plea 20 offer. Doc. 34 at 1. 21 Judge Willett recommends that the Court deny Davis’s § 2255 motion without an 22 evidentiary hearing. Doc. 36 at 1. She found that grounds one and two were reviewable 23 but meritless. Id. at 7. She detailed responses by Davis’s trial attorneys to interrogatories 24 propounded by the government in which the attorneys stated that they did not recall 25 whether they discussed S.W.’s retractions with Davis on the morning of trial, but that they 26 had previously discussed with him, at length, credibility issues with S.W.’s testimony. Id. 27 at 8. Judge Willett found that the attorneys’ inability to remember did not render their 28 performance deficient or deprive Davis of necessary information. Id. at 9. Judge Willett 1 also noted that Davis’s trial attorneys indicated in their interrogatory responses that they 2 advised Davis that the government extended the plea offer because R.W. chose not to 3 testify. Id. at 8. Judge Willett found that Davis’s trial attorneys did not fall below the 4 objective standard of reasonableness by not providing him with a copy of R.W.’s text 5 messages before he accepted the offer. Id. Judge Willett further found that Davis did not 6 adequately show how he was prejudiced by not receiving a copy of the messages. Id. Judge 7 Willett found that Davis’s guilty plea was knowing, intelligent, voluntary, and not the result 8 of ineffective assistance of counsel. Id. at 10. 9 With respect to ground three, Judge Willett noted that Davis asserted on direct 10 appeal that his guilty plea was involuntary as a result of the “coercive plea bargaining 11 process” and “the possibility of receiving a severe sentence” if he went to trial. Id. She 12 concluded that because the Ninth Circuit found that Davis’s plea was knowing and 13 voluntary, he was precluded from raising the issue again in his § 2255 motion. Id. 14 Judge Willett also recommended that the Court deny the Brady claims asserted in 15 Davis’s supplement. Id. at 12. She assumed the claim was reviewable and found it 16 meritless because Davis’s own briefs conceded that the government sent his trial attorneys 17 a copy of S.W.’s witness preparation report the night before trial, and that his attorneys 18 advised him that R.W. would not testify on the morning of trial, demonstrating that the 19 government had timely communicated this fact as well. Id. at 11. 20 III. R&R Standard of Review. 21 The Court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court “must 23 review the magistrate judge’s findings and recommendations de novo if objection is made, 24 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 25 banc). The Court is not required to conduct “any review at all . . . of any issue that is not 26 the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. 27 § 636(b)(1); Fed. R. Civ. P. 72(b)(3). 28 / / / 1 IV. Davis’s Response. 2 Davis filed a response to the R&R rearguing the claims he asserted in grounds one 3 and two of his § 2255 motion and in his supplement. See Doc. 37. The government 4 contends that his response does not make any specific objections, noting that much of it is 5 copied verbatim from the R&R and the remaining portions simply reassert arguments 6 Judge Willett considered and rejected. Doc. 38 at 4. 7 It is true that Davis’s response consists mostly of restatements of the R&R and 8 arguments made before Judge Willett, but the Court is mindful of Davis’s pro se status and 9 its duty to construe his filings liberally. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 10 2010). The Court will assume that Davis objects to Judge Willett’s findings that he did not 11 show ineffective assistance of counsel in grounds one and two as they relate to minor- 12 victim S.W. 13 Davis’s response does not discuss Judge Willett’s findings that his attorneys advised 14 him that the government extended the plea offer because of R.W.’s refusal to testify and 15 that he was not prejudiced by not receiving copies of R.W.’s specific text messages. See 16 Doc. 36 at 8. The Court therefore will not review grounds one and two as they relate to 17 R.W. Thomas, 474 U.S. at 149. 18 Nor will the Court review Judge Willett’s findings as to ground three. Davis does 19 not mention that ground in his response to the R&R. Id. 20 Davis briefly discusses the Brady claims at the end of his response, but not Judge 21 Willett’s findings. He argues that the government withheld a copy of the report 22 memorializing S.W.’s retractions when it extended the plea offer (Doc 37 at 10), but the 23 record clearly shows the government sent the report to his attorneys the day before trial. 24 Doc. 35-1 at 2 (email sent at 8:17 PM on February 11, 2018, from government to Davis’s 25 attorneys with report detailing S.W.’s changes to her testimony). Indeed, Davis’s own 26 filings acknowledge that his attorneys received the report before trial. Doc. 1 at 3 (“[L]ate 27 on the Sunday before trial my defense received an e-mail where the prosecution witness 28 S.W. retracted almost all of the statements against me.”); Doc. 37 at 7 (same). The Court 1 will not address Davis’s Brady claims given this record and the absence of any argument 2 regarding Judge Willett’s findings. Thomas, 474 U.S. at 149. 3 V. Grounds One and Two Regarding S.W.’s Retractions. 4 Davis contends that his trial attorneys’ statements that they do not recall whether 5 they discussed S.W.’s last-minute changes to her testimony with him “definitely render[ed] 6 trial counsel’s performance deficient and [deprived him] of the information necessary to 7 render his plea truly knowing.” Doc. 37 at 9. But the fact that Davis’s lawyers do not 8 recall whether they discussed the changes with Davis does not show that they did not do 9 so, only that they can’t recall. And the Court approaches this argument with some doubt 10 in light of the fact that Davis’s two defense attorneys have practiced before the Court for 11 many years and are as diligent and thorough as any attorneys the Court has encountered, 12 ever. The Court nonetheless will consider Davis’s arguments carefully. 13 The two-prong Strickland test applies to ineffective-assistance claims arising out of 14 the plea process. Hill v. Lockhart, 474 U.S. 52, 57 (1985). Strickland requires a defendant 15 to show both (1) objectively deficient performance by counsel and (2) resulting prejudice. 16 Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong requires a showing 17 that counsel’s actions related to the guilty plea fell outside the range of competence 18 demanded of attorneys in criminal cases. Hill, 474 U.S. at 56. On the second prong, Davis 19 must show a “reasonable probability that, but for counsel’s errors, he would not have 20 pleaded guilty and would have insisted on going to trial.” Id. at 59. “Judicial scrutiny of 21 counsel’s performance must be highly deferential,” and there is “a strong presumption that 22 counsel’s conduct falls within the wide range of reasonable professional assistance.” 23 Strickland, 466 U.S. at 689. 24 The Court may address either of the Strickland prongs first, and finds in this case 25 that Davis has not met the high standard required for the prejudice prong. See id. at 697 26 (“[A] court need not determine whether counsel’s performance was deficient before 27 examining the prejudice suffered by the defendant as a result of the alleged 28 1 deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack 2 of sufficient prejudice, which we expect will often be so, that course should be followed.”). 3 Davis argues that a letter he sent to his parents shows he would not have pled guilty 4 had he known of S.W.’s retractions. But Davis has not provided the Court with a copy of 5 the letter and the Court cannot locate it in the electronic docket. Davis asserts that the letter 6 can be found in “the file” (Doc. 37 at 8; see also Doc. 1 at 3), but he does not say which 7 file or where, and it is not in the Court’s docket. On this record, the Court cannot rely on 8 the letter as evidence of prejudice. 9 Nor does the evidence available to the Court support Davis’s assertion that he would 10 have declined the plea offer had he known of S.W.’s changes to her testimony. The record 11 shows that Davis knew of the changes before his sentencing hearing and yet did not cite 12 them as a basis for withdrawing his guilty plea when that topic was discussed at the hearing. 13 Objections to the presentence report filed by Davis’s lawyers on May 9, 2018 – more than 14 one month before the sentencing – detailed S.W.’s last-minute changes and attached a copy 15 of the government’s report documenting them. CR Docs. 149 at 3, 149-1. This is the same 16 copy of the report that Davis attaches to his supplement in this case. See Doc. 34 at 8. And 17 yet at the sentencing hearing on June 14, 2018, when the Court discussed with Davis his 18 letter stating that he wanted to withdraw his guilty plea, Davis made no mention of S.W.’s 19 changes. CR Doc. 179 at 2-5. He focused instead on consecutive sentences and sex 20 offender registration. Id. After conferring with his lawyers, Davis retracted his request to 21 withdraw from the guilty plea and affirmed his desire to proceed with sentencing. Id. at 5. 22 Davis argues that his discussions with his lawyers about S.W.’s credibility problems 23 are not relevant to his motion, but the Court disagrees. The premise of Davis’s § 2255 24 argument is that he pled guilty because of the risks he faced if S.W. testified, and yet the 25 record shows that S.W. had severe credibility issues. His lawyers’ objections to the 26 presentence report contain this detailed discussion of S.W.’s credibility: 27 S.W. gave her first statements about Mr. Davis to law enforcement 28 and a SANE examiner on November 23, 2014, after she was arrested in Scottsdale with Reshay Williams. In her recorded forensic interview with 1 Det. Parrott of Scottsdale PD, she described Mr. Davis, who she called “Chris,” as her boyfriend and her pimp of six months. She said she was the 2 “bottom bitch” because she had been with him the longest – six months – and 3 she had to bring in $1,500 every night. She said “Chris” was age 19, going on 20. She said she met him in Las Vegas and had been with him since 4 September of 2013 when she got out of jail. She said they talked for six 5 months straight, and he was there when she had her son. She said her “baby daddy” was not with her and so Mr. Davis put his name on her son’s birth 6 certificate instead. She said they started dating in July 2014. She said she 7 had known him since high school—that he is from Nevada and they went to school together at Cimarron and Western. 8 9 The unreliability of these statements is mostly self-evident, and many of them are contradicted by other witnesses, documents, or S.W. herself. 10 First, Mr. Davis was not age 19 or 20 in November 2014. He was 35 years 11 old. Second, Mr. Davis is not from Nevada, did not go to high school in Nevada, and could not possibly have gone to high school in Nevada with 12 S.W. He is from Florida, and he would have been in high school during the 13 mid-1990s, which is certainly nowhere close to when S.W. was in high school. Third, review of a certified copy of the certificate of livebirth from 14 Nevada for S.W.’s son born in the fall of 2014 shows that Mr. Davis is not listed on the birth certificate—indeed, there is no father listed—which is 15 contrary to S.W.’s claim in her statement to Det. Parrott. Fourth, S.W.’s 16 claims that she had worked for Mr. Davis as a prostitute for six months, was his “bottom bitch,” and brought in $1,500 a day are contradicted by other 17 witnesses and, moreover, by S.W. herself. For example, in a July 8, 2015 18 interview with FBI Task Force Officer and case agent, Det. Carpenter, S.W. stated that she met Mr. Davis in Los Angeles through Reshay Williams. She 19 said she thought she met Mr. Davis in October 2014, and she said she was 20 only with him for three or four weeks before she got locked up down in Arizona. 21 22 CR Doc. 149 at 4-5 (citations omitted). 23 These significant credibility issues were known to Davis and his lawyers before trial 24 and before he accepted the government’s plea offer. Given the already questionable nature 25 of S.W.’s testimony, the Court is not persuaded that Davis would have declined the 26 government’s plea offer had he known S.W. made additional inconsistent statements 27 shortly before trial. See CR Doc. 149-1 (report of S.W.’s pretrial changes). 28 1 Finally, as the government notes, Davis did not plead guilty to a crime involving 2|| S.W. Doc. 38 at 6. He pled guilty to count 6 of the second superseding indictment, which || charged transportation of individuals to engage in prostitution under 18 U.S.C. § 2421. CR Doc. 156 at 1. The factual basis of the plea agreement named only B.H. and R.W., not S.W. Id. at 7. All other counts were dismissed, including those related to sex trafficking || of aminor. CR Doc. 155. 7 In conclusion, Davis has not shown prejudice with respect to ground one — the claim 8 || that his lawyers failed to advise him of S.W.’s last-minute changes to her testimony. Nor 9|| has he shown prejudice with respect to ground two — the “newly discovered evidence” of || R.W.’s text messages cancelling her appearance at trial and the unproduced letter to his 11 || parents. Davis has not shown a “reasonable probability that, but for counsel’s [alleged errors], he would not have pleaded guilty and would have insisted on going to trial.” Hill, 13 || 474U.S. at 59. This is particularly true given the “highly deferential” approach the Court must bring to ineffective assistance claims and the “strong presumption” of Davis’s || lawyers’ competence. Strickland, 466 U.S. at 689. 16 IT IS ORDERED: 17 1. Judge Willett’s R&R (Doc. 36) is accepted. 18 2. Davis’s § 2255 motion (Doc. 1) is denied. 19 3. Davis has not shown a denial of a constitutional right, and the Court 20 || concludes that no reasonable jurist would find that his claims warrant federal habeas relief. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). A certificate of || appealability is therefore denied. 23 4. The Clerk of Court is directed to enter judgment accordingly and terminate 24 || this action. 25 Dated this 8th day of August, 2022. Saul D and □□ Cou pel 28 David G. Campbell Senior United States District Judge -9-