Petition for Writ of Certiorari — Michael Ray Davis, Petitioner v. United States

CASE No.

In The Supreme Court of the United States

_______________

MICHAEL RAY DAVIS.

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

______________________________________________

PETITION FOR WRIT OF CERTIORARI

______________________________________________

Brandon Sample

Brandon Sample PLC

1701 Pennsylvania Ave., N.W. #200

Washington, DC 20006-5823

Washington, D.C. 20006

Phone: (202) 990-2500

Fax: (202) 990-2600

Vermont Bar No. 5573

Email: brandon@brandonsample.com

https://brandonsample.com

Counsel for Petitioner

QUESTIONS PRESENTED FOR REVIEW

1.

Whether United States v. Granados, 168 F.3d 343 (8th Cir. 1999),

Has Been Overruled by Padilla v. Kentucky, 559 U.S. 356 (2010), and

Lafler v. Cooper, 566 U.S. 156 (2012).

i

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .............................................. i

TABLE OF CONTENTS ...........................................................................ii

TABLE OF AUTHORITIES .................................................................... iii

PETITION FOR WRIT OF CERTIORARI ............................................... 1

OPINIONS BELOW .................................................................................. 1

JURISDICTION ........................................................................................ 1

STATUTORY PROVISIONS INVOLVED ................................................ 1

STATEMENT OF THE CASE .................................................................. 1

REASONS FOR GRANTING THE WRIT ................................................ 1

CONCLUSION .......................................................................................... 9

APPENDIX A - October 4, 2022, Order & Judgment from Eighth Circuit

APPENDIX B - May 25, 2022, District Court Order

ii

TABLE OF AUTHORITIES

CASES

Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1990) ....................................... 9

Lafler v. Cooper, 566 U.S. 156 (2012) ....................................................... 8

Lee v. United States, 137 S. Ct. 1958 (2017) ............................................. 7

Mayfield v. United States, 955 F.3d 707 (8th Cir. 2020) .......................... 9

Padilla v. Kentucky, 559 U.S. 356 (2010) ................................................. 8

Thomas v. United States, 27 F.3d 321 (8th Cir. 1994) ............................. 8

United States v. Granados, 168 F.3d 343 (8th Cir. 1999) ........................ 8

United States v. Marcos-Quiroga, 478 F.Supp.2d 1114

(N.D. Iowa Mar. 23, 2007) ...................................................................... 7,9

STATUTES

28 U.S.C. § 1254(1) .................................................................................... 1

iii

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully petitions this Court for a writ of certiorari to

review the United States Court of Appeals for the Eighth Circuit's order

dismissing Petitioner’s request for a certificate of appealability.

OPINIONS BELOW

The Eighth Circuit’s order and judgment was entered October 4,

2022. (“App.”)

JURISDICTION

The Eighth Circuit’s order and judgment was entered October 4,

2022. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1),

and Part III of the Rules of the Supreme Court of the United States. This

petition is timely pursuant to Supreme Court Rule 13.1.

STATUTORY PROVISIONS INVOLVED

None.

STATEMENT OF THE CASE

Davis filed a § 2255 motion and a declaration stating: At the time

of his arrest, Davis was 70 years old. (R. Doc. 3) (Davis Decl. ¶ 2). Davis

informed Attorney John Osgood that he would not plead guilty to any

sentence over 120 months (10 years). Id. Davis informed Attorney

Osgood that any sentence over 120 months was a death sentence for a

man 70 years old, and he would take his chances at trial if a plea

agreement could not be reached. Id.

Attorney Osgood informed Davis he had reviewed the

Government’s open file. (ECF 3) (Davis Decl. ¶ 5). Attorney Osgood

informed Davis that the conspiracy involved 400 to 700 grams of heroin,

and there was no evidence to support an obstruction of justice

enhancement. Id. Attorney Osgood never informed Davis that

Cooperating Witness Two (“CW2”) alleged Davis distributed more than

3,000 grams of heroin. Id. Moreover, Attorney Osgood never informed

Davis that Cooperating Witness Three (“CW3”) alleged Davis

obstructed justice with regards to the $200 sent to Williams. Id.

Attorney Osgood informed Davis that, if he plead guilty and

received acceptance of responsibility, the United States Sentencing

Guidelines (U.S.S.G.) sentence would be calculated as follows:

USSG § 2D1.1 (400-700 Grams Heroin)

26

USSG § 3E1.1 (Acceptance of Responsibility)

-3

Total Offense Level

23

Criminal History Category

III

2

Sentencing Guideline Range

57 to 71 months

(R. Doc. 3) (Davis Decl. ¶ 6).

On May 4, 2018, Davis signed a written plea agreement and plead

guilty. (R. Crim. Doc. 127). At the plea hearing, Attorney Osgood

confirmed that he had reviewed the Government’s open file:

THE COURT: And, Mr. Osgood, are you satisfied, based on you review

of the discovery, that if this case went to trial that the Government

could make a submissible case?

MR. OSGOOD: Yes. We’ve spent quite a bit of time talking about that.

And the latest events in the case were they’ve developed yet another

very substantial witness. We felt we had no choice other than to plead

guilty.

* * * * * * * *

THE COURT: … Mr. Rhodes, I always ask this question as well. Did

you turn over all of the discovery to the defense.

MR. RHODES: Yes, Your Honor.

(R. Crim. Doc. 131) (Plea Hearing at 16).

The Presentence Investigation Report (PSR) recommended that

Davis receive a sentence based on the following U.S.S.G. calculations,

3

USSG § 2D1.1 (3,000 Plus Grams Heroin)

32

USSG § 3B1.1 (Leader/Organizer)

+4

USSG § 3C1.1 (Obstruction of Justice)

+2

USSG § 3E1.1 (Acceptance of Responsibility)

0

Total Offense Level

38

Criminal History Category

III

Sentencing Guideline Range

292 to 365 months

(R. Crim. Doc. 170) (PSR ¶¶ 42, 45, 46, 49 & 66).

After reading the PSR, Davis immediately wrote a letter to

Attorney Osgood. (R. Doc. 3) (Davis Decl. ¶ 13). Davis instructed

Attorney Osgood to file a motion to withdraw his guilty plea as

involuntary. Id. Had Attorney Osgood informed Davis about CW2

and/or CW3’s allegations, Davis would not have plead guilty and would

have insisted on a jury trial. Id.

The district court sentenced Davis to 170 months based on the

following U.S.S.G. calculations,

USSG§2D1.1(less than 3,000 grams heroin)

30

USSG § 3B1.1 (Leader/Organizer)

+4

USSG § 3C1.1 (Obstruction of Justice)

+2

4

USSG § 3E1.1 (Acceptance of Responsibility)

-3

Total Offense Level

33

Criminal History Category

III

Sentencing Guideline Range

168 to 210 months

(R. Crim. Doc. 204) (Sentencing Hearing at 15).

On June 6, 2019, Davis filed a pro se notice of appeal. (R. Crim.

Doc. 202). Per the Eighth Circuit’s instructions, on August 26, 2019,

Davis filed a pro se supplemental brief,

… Attorney Osgood himself told me that he would take my case to trial

if he felt that I would get 10 years or more because at my age that

would be a life sentence…. [Attorney Osgood] came to me and said … he

had a deal where I would plead guilty to a small amount of heroin and

only be sentenced to 6 years….

After I signed the deal … [Davis learned] that a cooperating witness

was saying [he] had sold … 3 kilos of heroin, that [an] obstruction of

justice would be applied because [he] had sent Sidney Williams $100

while [Williams] was in CCA on a unrelated charge of bank robbery….

The PSR also stated [he] was being given an enhancement for a leader

and organizer role over people who [he] didn’t even know…. [He] tried

5

to contact [his] attorney repeatedly and was unable to contact

[Attorney] Osgood.

United States v. Davis, Case No. 19-2190 (8th Cir. Aug. 27, 2019)).

Davis filed a § 2255 motion arguing that Attorney Osgood was

ineffective, and his guilty plea was involuntary, where Attorney Osgood

failed to inform him about CW2’s drug quantity allegations and CW3’s

obstruction of justice allegations. (R. Doc. 3). The Government

responded that Attorney Osgood does not specifically remember

discussing CW2 with Davis … but the “300 to 700 grams was based on

an email from AUSA Rhodes on August 2, 2017, in which he stated he

believed Mr. Davis was responsible for 423 grams which was a level 26.”

(R. Doc. 7-4 at 23).

On May 5, 2022, the district court denied the § 2255. (R. Doc. 8).

The district court never acknowledges that Attorney Osgood misadvised

Davis regarding the drug quantity or obstruction of justice. Id. Instead,

the district court stated the “law is this circuit is clear that a defendant

who plead guilty has no right to be apprised of the sentencing options

outside the statutory maximum and minimum sentences.” Id. The

6

district court cited United States v. Granados, 168 F.3d 343, 345 (8th

Cir. 1999). Id.

REASONS FOR GRANTING THE WRIT

I.

Reasonable Jurists Can Debate Whether United States v.

Granados, 168 F.3d 343 (8th Cir. 1999), Has Been Overruled

by Padilla v. Kentucky, 559 U.S. 356 (2010), and Lafler v.

Cooper, 566 U.S. 156 (2012).

First, Attorney Osgood admitted that he misinformed Davis

regarding the drug quantity. Attorney Osgood stated the “300 to 700

grams was based on an email from AUSA Rhodes on August 2, 2017, in

which he stated he believed Mr. Davis was responsible for 423 grams

which was a level 26. Davis submits this mis-advice is ineffective

assistance. United States v. Marcos-Quiroga, 478 F.Supp.2d 1114 (N.D.

Iowa Mar. 23, 2007).

Second, Davis informed Attorney Osgood that any sentence over

120 months was a death sentence for a man 70 years old, and he would

take his chances at trial if a plea agreement could not be reached. The

district court never addressed whether this uncontested statement

established sufficient prejudice. Lee v. United States, 137 S. Ct. 1958,

1967 (2017).

7

Third, United States v. Granados, 168 F.3d 343 (8th Cir. 1999), cites

Thomas v. United States, 27 F.3d 321 (8th Cir. 1994). In a similar case,

Francisco Marcos-Quiroga “argued that he was induced to plead guilty

by specific representations of his counsel that he was not a career

offender.” United States v. Marcos-Quiroga, 478 F. Supp. 2d 1114, 1128

(N.D. Iowa 2007). The district court distinguished Thomas v. United

States, 27 F.3d 321 (8th Cir. 1994). The court found in Thomas, counsel

did not mis-advise his client. Id. The court held because counsel misadvised Marcos-Quiroga his guilty plea was involuntary. Id. at 1143-44.

Fourth, the district court’s statement “that a defendant who pleads

guilty has no right to be apprised of the sentencing options outside the

statutory maximum and minimum sentences” is incorrect as a matter of

law. The Supreme Court has held that counsel’s failure to inform the

defendant of certain collateral consequences constitutes ineffective

assistance. Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must inform

the defendant regarding immigration).

Fifth, in Lafler v. Cooper, 566 U.S. 156 (2012), the defendant was

mis-advised “the prosecution would be unable to establish his intent to

murder.” Id. at 161. “[A]ll parties agree[d] the performance of

8

[defendant’s] counsel was deficient.” Id. at 163. This is consistent with

the Eighth Circuit’s decision in Mayfield v. United States, 955 F.3d 707,

711 (8th Cir. 2020) (“[a]n attorney's ignorance of a point of law that is

fundamental to his case combined with his failure to perform basic

research on that point is a quintessential example of unreasonable

performance), and Hill v. Lockhart, 894 F.2d 1009, 1010 (8th Cir. 1990)

(the misadvice was of a solid nature, directly affecting Hill's decision to

plead guilty).

Sixth, in Lafler the Court adopted United States v. Day, 969 F.2d

39 (3rd Cir. 1992). In Day, the attorney misadvised the defendant

regarding the applicability of the career offender guideline. Id. The Court

held this mis-advice was ineffective assistance. This is consistent with

United States v. Marcos-Quiroga, 478 F. Supp. 2d 1114, 1128 (N.D. Iowa

2007).

CONCLUSION

The petition for a writ of certiorari should be granted.

9

Respectfully submitted,

/s/Brandon Sample

Brandon Sample

Brandon Sample PLC

1701 Pennsylvania Ave., N.W.

Suite 200

Washington, D.C. 20006

Phone: (202) 990-2500

Fax: (202) 990-2600

Vermont Bar No. 5573

Email: brandon@brandonsample.com

https://brandonsample.com

Counsel for Petitioner

10