Davis v. United States of America (INMATE 3)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

OSIE LEE DAVIS, )

)

Petitioner, )

)

v. ) Case No. 2:21-cv-485-ECM-CWB

) [WO]

UNITED STATES OF AMERICA, )

)

Respondent. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

Osie Lee Davis (“Davis”) has filed a motion to vacate, set aside, or correct sentence

pursuant to 28 U.S.C. § 2255 (Doc. 1).1 For the reasons discussed below, the Magistrate Judge

recommends that the § 2255 motion be denied without an evidentiary hearing and that this action

be dismissed with prejudice.

I. Background

In August 2019, Davis was named in an eight-count indictment charging him with:

one count of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1)

(Count 1); six counts of possessing controlled substances with intent to distribute in violation of

21 U.S.C. § 841(a)(1) (Counts 2-5, 7, and 8); and one count of possessing a firearm in furtherance

of a drug trafficking crime in violation of 18 U.S.C. § 924(1)(A) (Count 6). (See Crim. Doc. 22 at

pp. 1-4). At his October 2019 trial, Davis contested only the firearm counts (Counts 1 and 6) and

1 Documents filed in this action are referenced as “Doc.” Documents filed in the underlying

criminal case (No. 2:19-cr-57-ECM) are referenced as “Crim. Doc.” Pinpoint citations refer to

page numbers affixed electronically by the CM/ECF filing system and may not correspond to

pagination on the versions presented for filing.

stipulated to his guilt on the drug distribution counts.2 (Doc. 18-3 at pp. 14, 38). As to the firearm

counts, Davis contended that the loaded handgun police found between the driver’s seat and center

console of his vehicle belonged to his stepson and that he was unaware the handgun was inside the

vehicle.3 On October 22, 2019, a jury found Davis guilty on all eight counts of the indictment.

(Doc. 18-4 at pp. 120-21). On August 28, 2020, the district court sentenced Davis to imprisonment

for 360 months. (Doc. 18-5 at p. 54).

Davis appealed only his firearm convictions, arguing (1) that the district court abused

its discretion by admitting testimony from ATF Special Agent Stacy Van Der Westhuizen that

Davis’s stepson, to whom the handgun belonged, was not in Troy, Alabama when the handgun

was found in Davis’s vehicle; and (2) that Special Agent Van Der Westhuizen’s testimony violated

the Confrontation Clause. (Doc. 4 at pp. 19-27). On May 4, 2021, the Eleventh Circuit issued an

opinion upholding Davis’s convictions and sentence. United States v. Davis, 854 F. App’x 341

(11th Cir. 2021) (per curiam).

On July 15, 2021, Davis filed the pending motion under 28 U.S.C. § 2255 to assert the

following claims:

1. that his trial counsel rendered ineffective assistance by allowing him to

stipulate to guilt on the drug distribution counts without first explaining

the elements of those offenses;

2 The six drug distribution counts consisted of one count of possessing methamphetamine with

intent to distribute, two counts of possessing powder cocaine with intent to distribute,

one count of possessing Clonazepam with intent to distribute, and two counts of possessing

marijuana with intent to distribute. (Crim. Doc. 22 at pp. 1-4).

3 Officer Bryan Baldwin found the handgun after stopping Davis on January 31, 2017 for driving

without headlights. (Doc. 18-1 at p. 5). Also found inside the vehicle were three bags of marijuana

with a total weight of 1.91 grams, seven bags of powder cocaine with a total weight of 2.28 grams,

a bag containing a detectable amount of methamphetamine, 40 methamphetamine pills with a

total weight of 12.86 grams, and 39 Clonazepam pills. (Id.). On October 5, 2018, police pulled

Davis over for another traffic violation—leading to the discovery of more amounts of marijuana

and powder cocaine. (Doc. 18-1 at p. 6).

2. that his trial counsel was ineffective for failing to follow up on a lead

about a photograph allegedly showing Davis’s stepson with the handgun

after Davis purportedly told his stepson the handgun had been stolen;

3. that his trial counsel was ineffective for failing to subpoena the list of

witnesses Davis had provided;

4. that his appellate counsel was ineffective for failing to argue that the

jury should have been instructed on simple possession of controlled

substance instead of possession of controlled substances with the intent

to distribute;

5. that his appellate counsel was ineffective for failing to pursue issues

reserved at trial and sentencing, specifically, the district court’s

(a) allowance of evidence that Davis admitted to another offense and

(b) imposition of sentence against Davis as an armed career criminal and

career offender; and

6. that he was unlawfully sentenced as an armed career criminal and career

offender.

(Doc. 1 at pp. 4-7).

On September 23, 2021, Davis amended his § 2255 motion to add claims that (1) the

prosecution denied his right to due process by failing to provide him with certain Brady, Giglio,

and Jencks materials, (2) his trial counsel conspired with the government to prevent him from

seeing grand jury testimony, and (3) his sentence under the Armed Career Criminal Act (“ACCA”)

violated the Supreme Court’s holding in Johnson v. United States, 576 U.S. 591 (2015). (Doc. 8

at pp. 1-6).

II. Legal Standard

Relief under § 2255 “is reserved for transgressions of constitutional rights and for that

narrow compass of other injury that could not have been raised in direct appeal and would, if

condoned, result in a complete miscarriage of justice.” Lynn v. United States, 365 F.3d 1225, 1232

(11th Cir. 2004) (citations omitted). A prisoner may obtain relief under § 2255 when the trial court

imposes a sentence that (1) violates the Constitution or laws of the United States, (2) exceeds its

jurisdiction, (3) exceeds the maximum authorized by law, or (4) is otherwise subject to collateral

attack. 28 U.S.C. § 2255; McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011).

If a court determines that a prisoner is entitled to § 2255 relief, it “shall vacate and set the judgment

aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence

as may appear appropriate.” 28 U.S.C. § 2255(b). The burden of establishing that vacatur of a

conviction or sentence is appropriate falls upon the petitioning prisoner. Beeman v. United States,

871 F.3d 1215, 1221-22 (11th Cir. 2017).

III. Discussion

A. Claims for Ineffective Assistance of Counsel

To prevail on an ineffective-assistance of counsel claim, a petitioner must show that

his counsel’s performance was deficient and that the deficient performance prejudiced him. See

Strickland v. Washington, 466 U.S. 668, 687 (1984). Performance is deficient when it falls below

“an objective standard of reasonableness and [is] outside the wide range of professionally

competent assistance.” Johnson v. Sec’y, DOC, 643 F.3d 907, 928 (11th Cir. 2011) (internal

quotation marks omitted). Generally speaking, in order to establish prejudice a petitioner must

demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694. Unless a petitioner

satisfies the showings required under both the performance and prejudice prongs of Strickland,

relief on an ineffective-assistance claim should be denied. Id. at 687. Once a court decides that

one of the requisite showings under Strickland has not been made, it need not decide whether

the other has. Id. at 697; see Clark v. Comm’r, Alabama Dep’t of Corr., 988 F.3d 1326, 1331

(11th Cir. 2021).

A defendant’s right to effective assistance of counsel continues through direct appeal. See

Evitts v. Lucey, 469 U.S. 387, 396 (1985). To assess the performance of appellate counsel, a court

also applies the Strickland two-prong, deficient performance/prejudice test. United States v.

Scripps, 961 F.3d 626, 632 (3d Cir. 2020). To establish ineffective assistance of appellate counsel,

a petitioner must demonstrate “that counsel omitted significant and obvious issues while pursuing

issues that were clearly and significantly weaker[.] ‘Generally, only when ignored issues are

clearly stronger than those presented, will the presumption of effective assistance of counsel be

overcome.’” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Gray v. Greer,

800 F.2d 644, 646 (7th Cir. 1985)).

1. Failure to Explain Elements of Drug Distribution Counts

Davis contends that his trial counsel rendered ineffective assistance by allowing him to

stipulate to guilt on the six drug distribution counts (Counts 2-5, 7, and 8) without explaining the

elements of those offenses to him. (Doc. 1 at p. 4). Davis’s trial counsel, Stephen Ganter, has

submitted an affidavit stating that he explained the elements of each charged offense to Davis and

that “based on the admissible video recordings [of the arresting officer’s discovery of drugs in

Davis’s car], it was a trial strategy to admit to the possessing with the intent to distribute the drugs”

while contesting whether Davis knew of the presence of the handgun found inside the vehicle.

(Doc. 5 at pp. 1-2).

The record reflects that Ganter informed the district court and the government at the last

pretrial conference on October 16, 2019 that Davis intended to take responsibility for the drug

distribution charges and to contest only the firearm charges. (Doc. 18-2 at pp. 3, 11). Shortly

before the jury was struck on October 21, 2019, the district court confirmed on the record with

Davis that he indeed concurred with Ganter’s trial strategy of admitting guilt on the drug

distribution counts while challenging the firearm counts. (Doc. 18-3 at p. 14). In his opening

statement to the jury, Ganter thus stipulated to Davis’s guilt on the drug distribution counts.

(Doc. 18-3 at p. 38). And Ganter did so again in his closing argument. (Doc. 18-4 at p. 97).

Davis does not explain what he failed to understand about the elements of the drug

distribution counts; nor does he suggest any defense that might have been mounted based upon

a more full understanding of the elements. Moreover, nowhere in his § 2255 motion does Davis

assert that he was innocent of the drug distribution charges. As reflected in Ganter’s affidavit and

Davis’s presentence report (see Doc. 18-1 at pp. 5-6), the evidence of guilt on the drug distribution

counts was strong. Davis does not contend otherwise.

On this record, Davis has failed to demonstrate deficient performance or resulting prejudice

due to Ganter’s alleged failure to explain the elements of the drug distribution charges.

2. Failure to Follow Up on Lead about Photograph

The handgun police found in Davis’s vehicle at the time of his January 2017 arrest in Troy,

Alabama belonged to Taylor—who was living in Florida at the time. (See Doc. 18-2 at pp. 4-5;

Doc. 18-3 at p. 95). Davis maintained that he did not know the handgun was in his vehicle and

that it must have been left there by Taylor. (Doc. 18-2 at pp. 4-5). Taylor testified that he had not

seen the handgun since late 2016 and that Davis told him in December 2016 that the handgun had

been stolen from his Troy residence. (Doc. 18-3 at pp. 94-95). Davis asserts that Ganter rendered

ineffective assistance by failing to follow up on a lead regarding a photograph allegedly showing

Taylor with the handgun a month after Davis stated the handgun had been stolen. (Doc. 1 at p. 5).

In his affidavit, Ganter states that he did follow up on the lead about Taylor’s possessing of the

handgun. (Doc. 5 at p. 2).

To show prejudice based on defense counsel’s allegedly inadequate investigation, a

defendant must show what information would have been obtained through further investigation

and a reasonable probability that it would have produced a different outcome in the proceedings.

Palmer v. Clarke, 408 F.3d 423, 445 (8th Cir. 2005); United States v. Price, 357 F. Supp. 2d 63

(D.D.C. 2004). Davis provides no details about the alleged photograph showing Taylor with the

subject handgun; nor does he show how such a photograph would have cleared him of knowingly

having the handgun inside his vehicle. He thus has failed to demonstrate that Ganter’s actions

were professionally unreasonable or that he was prejudiced.

3. Failure to Subpoena Witnesses

Davis next asserts that Ganter was ineffective for failing to subpoena “a list of witnesses”

he says he provided to Ganter—although Davis identifies no specific witness he wanted Ganter to

subpoena. (Doc. 1 at p. 5). Addressing Davis’s claim, Ganter states:

Petitioner alleges that I failed to subpoena a list of witnesses he provided me.

Counsel recalls subpoenas for Mr. Davis’s sister, Michelle Thomas, who traveled

from Florida, and another witness, Henry Haynes II, the owner of the firearm.

Counsel does not have independent recollection of a list of witnesses. Counsel does

recall the Petitioner providing us with names of witnesses which we followed up

with during pretrial investigation.

(Doc. 5 at p. 2).

Ineffective-assistance claims based on uncalled witnesses are disfavored. Sanders v.

United States, 314 F. App’x 212, 213 (11th Cir. 2008). “Which witnesses, if any, to call, and when

to call them, is the epitome of a strategic decision, and it is one that [courts] will seldom, if ever,

second guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). “This is especially true

because allegations of what a witness would have testified are largely speculative.” Jones v.

McNeil, No. 07-22367-CIV, 2009 WL 1758740, at *6 (S.D. Fla. Jun. 22, 2009). “[E]vidence about

the testimony of a putative witness must generally be presented in the form of actual testimony by

the witness or an affidavit. A defendant cannot simply state that the testimony would have been

favorable; self-serving speculation will not sustain an ineffective assistance claim.” United States

v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (footnotes omitted). Further, “[c]ounsel cannot be

deemed deficient for failing to call an unavailable witness.” Brown v. McNeil, No. 09-61055-CIV,

2010 WL 6405670, at *10 (S.D. Fla. July 12, 2010). And a petitioner cannot maintain an

ineffective assistance of counsel claim “simply by pointing to additional evidence that

could have been presented.” Id. (quoting Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1324

(11th Cir. 2002)).

Davis proffers no testimony, in any form, of an uncalled witness he wanted Ganter to

subpoena. He fails even to identify a specific witness on the list he says he provided to Ganter—

whose sworn affidavit reflects efforts to subpoena two witnesses to testify in Davis’s defense.

On this record, the court finds no deficient performance by Ganter, and Davis has failed to

demonstrate any prejudice.

4. Failure to Argue for Simple Possession of Controlled Substances

Davis appears to contend that his appellate counsel, Thomas M. Goggans, was ineffective

for failing to argue that the district court should have instructed the jury on simple possession of

controlled substances and not possession of controlled substances with the intent to distribute.

(Doc. 1 at pp. 7-8).4 According to Davis, “the arresting officer clearly stated” that he found Davis

with only “a personal use amount of drugs” such that he should have been charged with no more

than simple possession. (Id. at p. 7).

4 Davis’s presentation of this claim is vague. While he asserts it as a substantive claim in his

motion (Doc. 1 at p. 7), he appears also to assert that Goggans should have raised the claim on

appeal (id. at p. 8).

Because of the conclusory fashion in which Davis asserts his claim, it is unclear whether

he is arguing that the district court failed to give a jury instruction it should have given, or whether

he objects to a jury instruction that the district court in fact gave. Davis points to no specific jury

instruction, however, and the defense made no argument that the jury should be instructed on

simple possession and not possession with the intent to distribute. Because no such issue was

raised in the district court, it would have faced plain error review on appeal. And Davis presents

nothing in his motion to demonstrate plain error. Indeed, an argument that Davis merely was guilty

of simple possession would have been contrary to the trial strategy in which Davis concurred.

Finally, Davis mischaracterizes the testimony of the arresting officer. The officer did not, as Davis

maintains, “clearly state” that Davis was found with only “a personal use amount of drugs.” To

the contrary, the officer testified that he would not say the drugs were packaged for personal use.

(Doc. 18-3 at p. 59: “I would say it’s packaged to sell.”). Davis therefore has failed to present

specific facts to support his claim.

5. Failure to Pursue Issues Raised at Trial and Sentencing

Davis also claims that Goggans was ineffective for failing to pursue issues he says

were reserved at trial and sentencing, specifically, the district court’s allowance of evidence of

his admission to another offense and the imposition of his sentence as an armed career criminal

under the ACCA and as a career offender under the sentencing guidelines. (Doc. 1 at p. 5).

a. Evidence of Earlier Gun Possession

In a motion for new trial, Davis argued that the district court erred by allowing evidence

that he admitted during a custodial interrogation following his January 2017 arrest to having

possessed a firearm during another traffic stop that occurred approximately three months before

the traffic stop that led to discovery of the handgun at issue in the indictment. (Crim. Doc. 78 and

Crim. Doc. 56). The gun Davis possessed during the November 2016 traffic stop, which officers

discovered when it fell to the ground from Davis’s pants, was not the handgun police found in

Davis’s car during the January 2017 stop and was not the handgun that was the basis of the charges

in the indictment. (See Doc. 18-1 at p. 5). Before trial, Ganter moved in limine seeking exclusion

of any evidence that Davis admitted to police during his January 2017 interrogation that he

knowingly possessed the gun found during the November 2016 stop. Ganter argued that such

evidence was irrelevant and prejudicial under Federal Rules of Evidence 404(b) and 403.

(See Crim. Doc. 27). The district court, over Ganter’s objection, permitted introduction of the

evidence at trial, finding that because the question of knowing possession was at issue the

government could present evidence that Davis had knowingly possessed a firearm under similar

circumstances on another occasion, i.e., November 2016.

In denying Davis’s motion for new trial, the district court reasoned as follows:

[T]he Eleventh Circuit considers 404(b) to be a rule of inclusion, [United States v].

Sanders, 668 F.3d [1298,] at 1314 [(11th Cir. 2012)]. ... Here, the uncharged

possession occurred on November 1, 2016—approximately three months before the

Defendant’s January 31, 2017 arrest for the charged firearm possession. On both

occasions, the Defendant was found in his car with a firearm—in the uncharged

event, the firearm was in his waistband, and in the charged event, the firearm was

located between the driver’s seat and the center console. Thus, the circumstances

of the two offenses are very similar, and the events occurred only a few months

apart. This Court allowed introduction of evidence related to the 2016 gun

possession because it was offered to show knowledge or lack of mistake. The

Government introduced evidence of the uncharged conduct to prove an important

element of its case, and it was not unduly prejudicial.

. . .

The Government was entitled to present evidence that the Defendant previously

possessed a firearm in order to show knowledge or intent. Thus, the evidence did

not constitute propensity evidence. While the evidence was not favorable to the

Defendant, it was not unduly prejudicial because it supported a crucial part of the

Government’s case—that the Defendant knowingly possessed the firearm.

(Crim. Doc. 82 at pp. 8-9).

Davis points to no error in the district court’s analysis. If pursued on appeal, the claim

would not have succeeded. Davis therefore has failed to demonstrate that it was professionally

unreasonable for Goggans not to raise the claim or that he was prejudiced by Goggans’s failure.

b. Sentence under ACCA and as a Career Offender

Davis claims that Goggans should have pursued arguments at sentencing to challenge

imposition of his sentence as an armed career criminal under the ACCA, 18 U.S.C. § 924(e), and

as a career offender under the sentencing guidelines, U.S.S.G. § 4B1.1. (Doc. 1 at p. 5). Though

he does not clearly identify the arguments he believes Goggans should have pursued, Davis

maintains elsewhere in his § 2255 motion that his sentence as an armed career criminal and

career offender was “illegal” because it contravened provisions of the First Step Act. (See Doc. 1

at p. 6). The First Step Act of 2018 modified the enhancement provisions of 21 U.S.C. § 851

to change what qualifies as a predicate offense triggering a recidivist enhancement under

21 U.S.C. §§ 841(b)(1)(A) & (B) for convictions under 21 U.S.C. § 841(a)(1). Under § 401 of the

First Step Act, only a “serious drug felony” or “serious violent felony,” defined as an offense for

which an offender served a term imprisonment of more than one year, now qualifies as a § 851

predicate offense, rather than the previously included “felony drug offense,” defined as an offense

punishable by imprisonment of more than one year. See 21 U.S.C. § 851 (as amended by the

First Step Act, § 401(a)); see also 21 U.S.C. §§ 802(57)(A) and (58)(A) (defining “serious drug

felony” and “serious violent felony,” respectively).5 This statutory change applies to conduct that

5 Section 401 of the First Step Act also reduced the mandatory enhanced minimum penalties

applicable to offenders with one or more prior predicate offenses. See First Step Act § 401(a)(2).

Section 401 reduced the mandatory minimum penalty from 20 years to 15 years for defendants

convicted under 21 U.S.C § 841 with one prior qualifying offense, and from life imprisonment to

25 years for defendants with two prior qualifying offenses. Id.

occurred before the First Step Act’s enactment—December 21, 2018—“if a sentence for the

offense has not been imposed as of [December 21, 2018].” See id. at § 401(c).

Davis’s counsel at sentencing, James Matthew Williams, argued that several of Davis’s

prior controlled substance convictions, for which the government gave § 851 notice of its intent to

use for purposes of enhancing Davis’s sentence on the drug distribution counts, were excluded

from use under provisions of the First Step Act. (See Crim. Doc. 104 at pp. 6-7, 9-11; Doc. 18-5

at pp. 41-42). Williams cited provisions of the First Step Act defining “serious drug felony” to

mean an offense for which an offender actually served a term imprisonment of more than one year.

He argued that Davis served less than 12 months’ imprisonment for some of the prior convictions.

(Crim. Doc. 104 at pp. 6-7, 9-11; Doc. 18-5 at pp. 41-42).

The district court overruled Williams’s First Step Act objection. (Doc. 18-5 at p. 43).

When making its ruling, the district court observed that the cited provisions of the First Step Act

applied only to sentences enhanced under 21 U.S.C. §§ 841(b)(l)(A) and (b)(l)(B), while Davis’s

enhanced sentence was governed by 21 U.S.C. §§ 841(b)(l)(C), (D), and (E). (Doc. 18-5 at

pp. 41-42). The district court therefore found that the First Step Act did not apply to Davis’s

sentence on his drug count convictions. (Id. at p. 43).

Davis presents nothing to undermine the district court’s finding and is entitled to no relief

on a substantive claim that his sentence was “illegal” because it contravened provisions of the

First Step Act. For the same reasons, Davis’s appellate counsel did not render ineffective

assistance by failing to pursue arguments concerning the First Step Act, i.e., counsel is not

ineffective for failing to pursue meritless claims. See United States v. Winfield, 960 F.2d 970,

974 (11th Cir. 1992).

While presenting no supporting argument or evidence, Davis appears to claim further that

the district court erred by sentencing him as a career offender under the sentencing guidelines and,

relatedly, that Goggans was ineffective for failing to pursue such a claim on appeal. (See Doc. 1

at pp. 5-6). The career offender provisions of the sentencing guidelines, U.S.S.G. § 4B1.1-.2,

provide for enhanced sentences for certain defendants. Under § 4B1.1, a defendant is a career

offender if (1) he was at least 18 years old when he committed the instant offense of conviction,

(2) the instant offense of conviction is a felony that is either a crime of violence or a controlled

substance offense, and (3) the defendant has at least two prior felony convictions of either a crime

of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a) (emphasis added). At

sentencing, Davis’s counsel (Williams) raised the issue of whether the convictions cited in

paragraphs 42, 46, and 47 of the PSR counted toward a finding of career offender status.

(Doc. 18-5 at pp. 32-39). The conviction cited in paragraph 42 of the PSR was a 1999 Florida

conviction for aggravated battery. (Doc. 18-1 at p. 12). The convictions cited in paragraphs 46

and 47 were two separate 2012 Alabama convictions for possession of marijuana in the first degree.

(Id. at pp. 13-14). As for the 1999 Florida conviction, Williams argued that the government did

not prove Davis served a sentence for that conviction within the 15-year period set out in U.S.S.G.

§ 4A1.2(e)(1). (Doc. 18-5 at pp. 32-37). Williams additionally argued that Davis’s Alabama

convictions for possession of marijuana in the first degree should not be counted as two separate

convictions. (Id. at pp. 36-37). The district court heard the arguments of counsel, reviewed all

relevant documentation, and found that “two prior convictions, those referenced in paragraphs 46

and 47, possibly paragraphs 42 ... are predicate offenses for the purposes of the career offender

enhancement under the guidelines.” (Id. at p. 38). Davis fails to show he was wrongly sentenced

as a career offender, and Davis is entitled to no relief on his related claim of ineffective assistance

of counsel.

Davis also claims he was wrongly sentenced as an armed career criminal under the ACCA

because he did not have the requisite number of prior convictions for “serious drug offenses”

(see Doc. 8 at p. 6) and that appellate counsel (Goggans) should have pursued the issue on appeal

(see Doc. 1 at p. 5). A conviction for being a felon in possession of a firearm normally carries a

statutory maximum sentence of ten years’ imprisonment. 18 U.S.C. § 922(g), § 924(a)(2). The

ACCA, however, carries an enhanced penalty of at least fifteen years’ imprisonment if a defendant

has three or more prior convictions that qualify as either a “violent felony” or a “serious drug

offense.” See 18 U.S.C. § 924(e). “Serious drug offense” is defined as including “an offense under

State law, involving manufacturing, distributing, or possessing with intent to manufacture or

distribute, a controlled substance ..., for which a maximum term of imprisonment of ten years or

more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A). At sentencing, the district court found that

Davis’s prior convictions cited in paragraphs 35, 37, 42, 46, and 47 of the PSR (see Doc. 18-1 at

pp. 9-13) were all qualifying predicate offenses under the ACCA.6 (Doc. 18-5 at p. 32).

Davis specifically contends that two of his prior Alabama convictions for possession of

marijuana in the first degree in violation of Ala. Code § 13A-12-213—those cited in paragraphs

46 and 47 pf the PSR—were not “serious drug offenses” useable for enhancement under the

ACCA.7 But a conviction for possession of marijuana in the first degree for other than personal

under Ala. Code § 13A-12-213(a)(l) carries a statutory maximum sentence of 10 years and

6 The conviction cited in paragraph 35 of the PSR was a 1991 Florida conviction for robbery.

(Doc. 18-1 at p. 9). The convictions cited in paragraph 37 were 1995 Florida convictions for

delivery of cocaine and possession of cocaine with the intent to deliver. (Id. at p. 10).

7 See Amendment to § 2255 Motion. (Doc. 8 at p. 6).

therefore satisfies ACCA’s “serious drug offense” definition. See United States v. Robinson,

583 F.3d 1292, 1296-97 (11th Cir. 2009); 18 U.S.C. § 924(e)(2)(a)(i). At sentencing, the

government provided certified convictions, including Shepard documents (see Doc. 8 at p. 6),

showing that Davis’s prior convictions for possession of marijuana in the first degree were for

possession for “other than personal use,” i.e., under § 13A-12-213(a)(l). (Doc. 18-5 at p. 30).

Thus, those convictions were “serious drug offenses” useable for sentencing under the ACCA,

and Davis has failed to show that he was wrongly sentenced under the ACCA when the

district court counted his two Alabama convictions for possession of marijuana in the first degree

as qualifying predicate offenses.

Davis additionally claims that use of his Alabama convictions for possession of marijuana

in the first degree as predicate offenses under the ACCA violated the Supreme Court’s holding

in Johnson v. United States, 576 U.S. 591 (2015). (Doc. 8 at p. 6). But in Johnson, the

Supreme Court addressed the issue of unconstitutional vagueness as to what constitutes a “violent

felony” for purposes of the ACCA, a term defined by 18 U.S.C. § 924(e)(2)(B)’s “residual clause”

to include any felony that “involves conduct that presents a serious potential risk of physical injury

to another.” The Supreme Court was not addressing what constitutes a “serious drug offense” for

purposes of the ACCA. Because Davis is challenging what constitutes a serious drug offense, not

a violent felony under § 924(e)(2)(B)’s residual clause. Johnson simply does not apply.

B. Alleged Prosecutorial Misconduct

Davis claims that (1) the prosecution denied his right to due process by failing to provide

him with certain Brady, Giglio, and Jencks materials8 and (2) his trial counsel “conspired” with

8 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (due process requires that the government disclose

to the accused any favorable evidence in its possession that is material to guilt or punishment);

Giglio v. United States, 405 U.S. 150, 154 (1972) (the due process requirements enunciated in

Brady include the right of defendants to secure from the prosecution disclosure of materials

the government to prevent him from seeing grand jury testimony. (Doc. 8 at pp. 1-5). Davis’s

claim concerns the government’s alleged failure to provide him with the supposed grand jury

testimony and statements of Tanya Perez and the supposed grand jury testimony of his stepson,

Christopher Taylor. The record reflects, however, that the government complied with all of the

disclosure mandates of Brady, Giglio, and Jencks. Moreover, neither Perez nor Taylor even

testified before the grand jury. And Perez did not testify at trial. Although Taylor did testify at

trial, the substance of his testimony was made known to the defense well in advance, and all Brady,

Giglio, and Jencks materials were timely provided. Finally, Davis points to no evidence that

Ganter “conspired” with the government to prevent him from seeing any grand jury testimony.

Such an allegation is nothing more than unsupported speculation. Because his claims are

“merely conclusory allegations in search of nonexistent facts” (Doc. 18 at p. 20), Davis can show

no prosecutorial misconduct or resulting prejudice.

IV. Conclusion

For the reasons stated above, it is the RECOMMENDATION of the Magistrate Judge that

the § 2255 motion be DENIED without an evidentiary hearing and that this case be DISMISSED

with prejudice.

It is ORDERED that any objections to this Recommendation must be filed no later than

May 29, 2024. An objecting party must identify the specific portion(s) of all factual findings or

legal conclusions to which the objection is made and must describe in detail the basis for each

objection. Frivolous, conclusive, or general objections will not be considered.

affecting the credibility of government witnesses); Jencks Act, 18 U.S.C. § 3500, codifying Jencks

v. United States, 353 U.S. 657 (1957) (generally requiring the government, on motion of a

defendant, to produce statements in its possession of witnesses who testify at trial).

Failure to file a written objection to this Recommendation shall bar a party from a de novo

determination by the District Judge of any factual findings or legal conclusions contained herein

and shall waive the right of the party to challenge on appeal any subsequent order that is based on

factual findings and legal conclusions accepted or adopted by the District Judge, except upon

grounds of plain error or manifest injustice. See 11th Cir. R. 3-1; Resolution Trust Corp. v.

Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d 790,

794 (11th Cir. 1989).

DONE this the 15th day of May 2024. J

[I A

CHAD W. BRYAN

UNITED STATES MAGISTRATE JUDGE

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