Petition for Writ of Certiorari — Jerry J. Davis, Jr., Petitioner v. United States

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Order in the United States Court of

Appeals for the Sixth Circuit

(May 12, 2023). . . . . . . . . . . . . . . . App. 1

Appendix B Order in the United States District

Court Northern District of Ohio

Eastern Division

(October 20, 2022) . . . . . . . . . . . . App. 11

Appendix C Order of Dismissal in the United

States District Court Northern

District of Ohio Eastern Division

(October 21, 2022) . . . . . . . . . . . . App. 32

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 22-3947

[Filed May 12, 2023]

________________________________

JERRY J. DAVIS, JR.,

)

)

Petitioner-Appellant,

)

)

v.

)

)

UNITED STATES OF AMERICA, )

)

Respondent-Appellee.

)

________________________________ )

ORDER

Before: McKEAGUE, Circuit Judge.

Jerry J. Davis, Jr., a federal prisoner proceeding

through counsel, appeals a district court judgment

denying his motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255 and moves this court

for a certificate of appealability (COA).

In 2017, a jury found Davis guilty of two counts of

possession with intent to distribute cocaine, in violation

21 U.S.C. § 841(a)(1) and (b)(1)(A)(ii) (Counts 1 and 3);

two counts of possession of a firearm in furtherance of

a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i) (Counts 2 and 4); and being a felon in

App. 2

possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1) (Count 5). After trial, Count 4 was vacated

as duplicative of Count 2. Davis was sentenced to a

total term of 248 months in prison. This court affirmed.

United States v. Davis, 751 F. App’x 889 (6th Cir.

2018).

Davis then filed a § 2255 motion to vacate, raising

three ineffective-assistance-of-appellate-counsel (IAAC)

claims and two ineffective-assistance-of-trial-counsel

(IATC) claims. After an evidentiary hearing on the

IATC claims, the district court denied the motion and

declined to issue a COA.

A COA may be granted “only if the applicant has

made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); see also

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). That

standard is met when the movant demonstrates “that

jurists of reason could disagree with district court’s

resolution of his constitutional claims or that jurists

could conclude the issues presented are adequate to

deserve encouragement to proceed further.” Miller-El,

537 U.S. at 327.

To establish ineffective assistance of counsel, a

defendant must show deficient performance and

resulting prejudice. Knowles v. Mirzayance, 556 U.S.

111, 122 (2009); Strickland v. Washington, 466 U.S.

668, 687 (1984). Counsel’s performance is considered

deficient when it “fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688. To

establish prejudice, a defendant must show “that there

is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

App. 3

would have been different.” Id. at 694. In the appellate

context, the petitioner must demonstrate that the issue

omitted by counsel “was clearly stronger than the

issues that counsel did present[,]” Webb v. Mitchell, 586

F.3d 383, 399 (6th Cir. 2009) (quoting Smith v.

Robbins, 528 U.S. 259, 288 (2000)), and a reasonable

probability that he would have prevailed but for

counsel’s failure to raise the issue, Moore v. Mitchell,

708 F.3d 760, 776 (6th Cir. 2013).

Ground One – IAAC – Denial of Motion to Suppress

Davis’s first claim is that appellate counsel failed to

challenge the district court’s denial of his motion to

suppress a statement that he made to law enforcement

related to 11 kilograms of cocaine discovered in his

vehicle, initially thought to be fentanyl. While Davis

was in the hospital, having been arrested after

crashing his vehicle as he fled from police, see Davis,

751 F. App’x at 890-91, two officers in Davis’s presence

were discussing the “11 kilos” that they found in a

duffel bag in the car. Officer Brent Heller asked the

other officer loudly, “Damn, 11 kilos of fentanyl?” and

Davis, who overheard the officers, stated: “I can tell

you that ain’t fentanyl.” In denying Davis’s motion to

suppress the statement, the district court concluded

that “Officer Heller was not speaking with Davis and

his conversation with the other officers involved in the

case was not designed to elicit an incriminating

response from [Davis].”

In rejecting this IAAC claim, the district court

reasoned that Davis failed to demonstrate that

appellate counsel could have successfully challenged

the denial of his suppression motion. No reasonable

App. 4

jurist could disagree. As explained by the district court,

Davis’s statement that there was no fentanyl in the

duffel bag was voluntary, and voluntary statements

that are not made during an interrogation are

admissible even when no warning is given under

Miranda v. Arizona, 384 U.S. 436 (1966). Rhode Island

v. Innis, 446 U.S. 291, 299-300 (1980). At no point did

the officers direct any of their statements—much less

any questions—at Davis. Instead, Davis simply

overheard the officers talking and chose to inject

himself into their conversation by voluntarily stating

that what was found in his car was not fentanyl. A

challenge to the district court’s denial of Davis’s motion

to suppress his statement to the officers therefore

likely would have been unsuccessful. See id. Given that

Davis has not shown that the unraised issue was

“clearly stronger than the issues that counsel did

present” on appeal, Webb, 586 F.3d at 399 (quoting

Smith, 528 U.S. at 288), jurists of reason could not

debate the district court’s rejection of this IAAC claim.

Grounds Two and Three – IAAC – Challenges Related

to Search Warrant Affidavit

Grounds Two and Three involve arguments relating

to a search warrant affidavit that, according to Davis,

appellate counsel failed to raise on appeal. Following

Davis’s arrest after his failed attempt to flee police, a

detective submitted an affidavit in support of a search

warrant for 435 Center Road; the detective averred, as

is pertinent here, that he “knows through surveillance

over the past year that [Davis] resides at 435 Center

Road” in New Franklin, Ohio and that, at one point,

Davis had called the New Franklin fire department to

App. 5

his home “because his juvenile child was unresponsive.”

Before trial, Davis’s trial counsel moved to suppress 25

kilograms of cocaine, a firearm, and other

drug-trafficking evidence that was seized from 435

Center Road, arguing that the search warrant affidavit

did not show that 435 Center Road was Davis’s

primary residence and, even if it did, it did not show a

nexus between that residence and drug dealing

activity; instead, it contained only “conclusory

allegations . . . that drug traffickers keep evidence in

their homes.” The district court denied Davis’s request

to hold a hearing under Franks v. Delaware, 438 U.S.

154 (1978), and denied the motion to suppress. On

appeal, as to the search warrant affidavit, appellate

counsel argued only that there was no nexus between

the residence and drug dealing. We affirmed, reasoning

that it was proper to infer a nexus between the

residence and drug-trafficking activity in light of

evidence that “a large quantity of drugs” was seized

from Davis’s vehicle, that a confidential informant

identified Davis as a “large scale [h]eroin dealer” in the

community, and that federal agents had recently

“seized large sums of money from Davis as drug

proceeds.” Davis, 751 F. App’x at 891-92 (alteration in

original).

In Ground Two, Davis claims that appellate counsel

failed to argue that the detective’s two statements

linking Davis to and as a primary occupant of the

residence, identified above, are “conclusory” and “failed

to establish probable cause.” In Ground Three, Davis

claims that appellate counsel should have challenged

the district court’s denial of his request for a Franks

hearing to determine whether the search warrant

App. 6

affidavit falsely represented that Davis resided at 435

Center Road when his driver’s license—which was in

the possession of law enforcement—listed a different

address.

Reasonable jurists could not debate the district

court’s rejection of these IAAC claims. To be entitled to

a Franks hearing, a defendant must “make[] a

substantial preliminary showing that a false statement

knowingly and intentionally, or with reckless disregard

for the truth, was included by the affiant in the

warrant affidavit, and [ ] the allegedly false statement

is necessary to the finding of probable cause.” United

States v. Mastromatteo, 538 F.3d 535, 545 (6th Cir.

2008) (second alteration in original) (quoting Franks,

438 U.S. at 155-56). Davis alleged no facts to indicate

that the search warrant affidavit contained a

statement that the detective knew was false or was

made with a reckless disregard for its truth. The

affidavit merely omitted the fact that Davis’s driver’s

license listed a different address; it did, however, link

Davis to 435 Center Road, in particular by relaying

that another officer knew through surveillance that

Davis resided there. And, as to Ground Two, the

statements linking Davis to drug-trafficking activity

and the home were sufficient to establish a nexus

between the two and thus probable cause to search the

home, as we concluded on direct appeal. See Davis, 751

F. App’x at 891-92. Indeed, Davis’s IAAC claims as they

relate to the search warrant affidavit are at least in

part a repurposed challenge to the sufficiency of the

search warrant affidavit that has already been

considered and rejected on direct appeal. See Jones v.

United States, 178 F.3d 790, 796 (6th Cir. 1999) (“[A] §

App. 7

2255 motion may not be employed to relitigate an issue

that was raised and considered on direct appeal absent

highly exceptional circumstances, such as an

intervening change in the law.”).

Davis has not shown that, had appellate counsel

challenged the affidavit in the manner that Davis

wished, there is a reasonable probability that his

appeal would have turned out favorably for him. See

Moore, 708 F.3d at 776. No reasonable jurist therefore

could debate the district court’s rejection of Davis’s

second and third IAAC claims.

Grounds Four and Five – IATC

In Ground Four, Davis claims that trial counsel,

Steven L. Bradley and Mark B. Marein, conceded his

guilt without his consent. Relatedly, in Ground Five,

Davis faults trial counsel for challenging only the

§ 924(c) charge that ended up being vacated (Count 4).

In support, Davis points to (1) opening statements,

where Bradley told the jury that “most of the evidence

that you’re going to hear is largely going to be

uncontested by the defense,” that “the real dispute is

going to center around that unloaded firearm that was

found in that detached garage,” and that “we will ask

that you return a verdict of not guilty as to that single

count,” and (2) closing argument, where Bradley told

the jury that “Davis accepts responsibility for his

participation in there offenses,” that “based on the

evidence that the government has presented here and

with that acknowledgement, . . . your verdicts will so

reflect his participation in these offenses,” and that he

“want[s] to focus [his] remarks on really the only count

App. 8

in the indictment that is disputed, and that would be

Count 4.”

The district court found that the foregoing

statements did not amount to a “true concession of

guilt” because Davis did not stipulate to any facts and

the government still “bore the burden of proving [his]

guilt beyond a reasonable doubt at trial for all counts.”

Reasonable jurists could debate this finding insofar as

Bradley explicitly told the jury that “most of the

evidence” that the government would present was

“uncontested” and that Davis “participat[ed] in these

offenses” and asked the jury to find Davis not guilty

only as to one of the five counts. Cf. Valenzuela v.

United States, 217 F. App’x 486, 489-90 (6th Cir. 2007)

(concluding that trial counsel did not concede guilt but

rather admitted minor facts while arguing that those

facts were not probative of the defendant’s guilt in view

of the government’s entrapment).

But reasonable jurists could not debate the district

court’s finding that Davis suffered no prejudice, which

is fatal to his IATC claims. Davis maintains that

prejudice is presumed in view of McCoy v. Louisiana,

138 S. Ct. 1500, 1505, 1511 (2018), which held that, in

the capital context, “a defendant has the right to insist

that counsel refrain from admitting guilt” and that the

denial of this right constitutes a structural error that

is not subject to harmless-error review. But for

structural-error analysis to apply under McCoy, a

defendant must expressly object to counsel’s strategy to

concede guilt in open court. See 138 S. Ct. at 1507-09.

Here, Davis never voiced any opposition to trial

counsels’ concessions. So McCoy is inapplicable, and

App. 9

Davis’s IATC claims are governed by Strickland and its

prejudice prong. See Florida v. Nixon, 543 U.S. 175,

178-79, 191-92 (2004) (holding that trial counsel’s

concessions did not constitute presumptively

prejudicial structural error because the defendant was

merely indifferent about trial strategy).

And reasonable jurists would agree that Davis has

not shown that, but for Bradley’s statements, the result

of his trial would likely have been different, given the

overwhelming evidence of his guilt. See Bowen v. Foltz,

763 F.2d 191, 194 (6th Cir. 1985) (stating that “a

defendant must make more than merely speculative

assertions” to show a reasonable probability that, but

for counsel’s unprofessional errors, the result of

proceeding would have been different). After Davis

crashed his vehicle during a police chase and fled the

scene—all of which was captured on dash cam

video—officers recovered a pistol, ammunition, and 11

kilograms of cocaine from his vehicle. Officers then

obtained a warrant to search Davis’s residence and

recovered, in the garage, a .45 caliber handgun, 25

kilograms of cocaine wrapped in individual “bricks” in

a duffel bag, and additional evidence (e.g., documents

issued to Davis or bearing his name) that tied Davis to

the property and the garage specifically. In addition, as

noted above, there was evidence that Davis was a

“large scale” drug dealer in the community and

previously had drug money seized from him by federal

agents. Davis, 751 F. App’x at 891-92. So even if

counsel performed deficiently by conceding Davis’s

guilt, no reasonable jurist, in light of all of the

evidence, could debate the district court’s conclusion

that Davis failed to show prejudice and thus that he

App. 10

was not entitled to relief on his IATC claims. See

United States v. Schneider, 852 F. App’x 690, 696 (3d

Cir. 2021) (concluding that counsel’s single remark,

which the defendant interpreted as a concession of

guilt, did not prejudice the defendant in view of his

proclaimed innocence and “substantial testimony”

against him); Ashley v. Koehler, No. 87-1482, 1988 WL

12146, at *5 (6th Cir. Feb. 18, 1988) (per curiam)

(holding that even if counsel did not obtain consent to

concede guilt, the defendant could not satisfy the

prejudice prong of Strickland in light of the evidence of

his guilt).

The court therefore DENIES the motion for a COA.

ENTERED BY ORDER OF THE COURT

/s/ Deborah S. Hunt

Deborah S. Hunt, Clerk

App. 11

APPENDIX B

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CASE NO. 5:20CV414

(5:16CR374)

JUDGE BENITA Y. PEARSON

[Filed October 20, 2022]

________________________________

JERRY J. DAVIS, JR.,

)

)

Petitioner,

)

)

v.

)

)

UNITED STATES OF AMERICA, )

)

Respondent.

)

________________________________ )

ORDER

[Resolving ECF No. 107]

Pending before the Court is Petitioner Jerry J.

Davis, Jr.’s Motion to Vacate, Set-Aside, or Correct

Sentence Under 28 U.S.C. § 2255.1 ECF No. 107. The

matter has been fully briefed and an evidentiary

1

Unless otherwise indicated, the docket references will be to the

criminal case, 5:16CR374, not the related civil case, 5:20CV414.

App. 12

hearing was held. Having reviewed the parties’

evidence, testimony, and the record, the Court denies

Petitioner’s Motion.

I. Background

The Court repeats the following facts as they were

presented in the Court’s ruling on the Motion to

Suppress (ECF No. 45)2:

On November 1, 2016, at approximately

12:47 p.m., Ohio State Highway Patrol Trooper

Michael McCarthy was on patrol in a marked

police cruiser when he observed a white Ford

Explorer bearing Massachusetts state plate

7CYV90 driving northbound on Lake Shore

Boulevard in Akron, Ohio. He also observed that

the vehicle was traveling at 35 miles per hour in

a 25 mile-per-hour speed zone in a residential

area. Trooper McCarthy initiated a traffic stop of

the vehicle by activating his overhead blue

lights. Trooper McCarthy’s cruiser was equipped

with a video camera and it captured the traffic

violation, the entire traffic stop, and noted the

rate speed the cruiser traveled. See Government

Exhibit 4. The driver of the vehicle made a right

turn onto Lake Street and stopped. At

approximately 12:49:33 p.m., Trooper McCarthy

approached the vehicle on the driver’s side and

made contact with the male driver. Trooper

2

The Court’s ruling on Defendant’s motion to suppress was

affirmed by the Sixth Circuit Court of Appeals. See ECF No. 100

(declining to review Defendant’s claim of ineffective assistance of

counsel); United States v. Davis, 751 F. App'x 889 (6th Cir. 2018).

App. 13

McCarthy told the driver why he stopped him

and asked the driver for his driver’s license,

registration and proof of insurance. Trooper

McCarthy noted that the driver appeared very

concerned about the Akron Police officers that

were on the passenger side of the vehicle. The

driver attempted to hand Trooper McCarthy his

American Express card. Trooper McCarthy

informed the driver that he did not accept

American Express and told the driver that he

would appreciate it if he gave him his driver’s

license. The driver then pulled his driver’s

license out of his wallet and handed it to Trooper

McCarthy. The driver’s license had a picture of

the driver and identified him as Defendant Jerry

Davis, Jr. Davis stated that he was heading to

his home in Manchester, Ohio and the vehicle

was a rental that his girlfriend rented five days

earlier on October 27, 2016. Trooper McCarthy

informed Davis that if he was heading to

Manchester he was going in the wrong direction.

Davis said that he was coming from Kenmore

and was heading to Manchester and he had just

chosen to drive that way. Trooper McCarthy

observed that Davis seemed distracted by the

Akron police officers who were on the passenger

side of Davis’ vehicle. Trooper McCarthy told

Davis to keep his hands on the steering wheel

and told Davis that he would be right back.

At approximately 12:51:47 p.m., Trooper

McCarthy walked back to his patrol car to check

Davis’ license information and he asked Ohio

State Highway Patrol Trooper Baker to walk his

App. 14

K-9 around Davis’ vehicle. At approximately

12:52:38 p.m., Trooper Baker approached Davis’

driver side window. Trooper Baker started to

talk to Davis and, at approximately

12:53:08 p.m., Trooper McCarthy observed the

brake lights on Davis’ vehicle light up and then

watched as Davis drove away at a very high rate

of speed traveling east on Lake Street. This was

captured by the video camera. Trooper

McCarthy pursued Davis in his cruiser. Trooper

McCarthy observed Davis driving at a very high

rate of speed and watched Davis drive through

a stop sign at the intersection of Lake Street and

Edison Street and then drive through another

stop sign at the intersection of Lake Street and

S. Old Main Street. Davis turned north onto S.

Old Main Street the wrong way (against traffic),

and nearly collided with a vehicle on that busy

street. Trooper McCarthy watched Davis lose

control of his vehicle, hitting a telephone pole

and then hitting a parked car. Davis exited his

vehicle from the driver’s side door and ran to the

back of his vehicle and attempted to open the

hatch, but the hatch would not open. Still on

foot, Davis then ran north on S. Old Main

Street. Trooper McCarthy and Akron Police

Officer Hill chased after Davis on foot. Davis ran

east on S. Old Main Street and then jumped off

a bridge, falling approximately 30 feet to the

ground below. Trooper McCarthy observed Davis

on the ground moaning. Concerned that Davis

had seriously injured himself, Trooper McCarthy

advised Canton, Ohio State Highway Patrol

dispatch that Davis had jumped off a bridge and

App. 15

requested that they notify emergency medical

support. Officers eventually arrested Davis after

he walked south down some railroad tracks.

Akron Police Officer Brent Heller assisted in the

arrest of Defendant. Officer Heller rode in the

ambulance with Davis and also stayed with

Defendant while Davis was being treated at

Akron General Medical Center. Officer Heller

drafted a police report outlining what occurred

while he was at the hospital with Davis. Officer

Heller wrote that Davis was trying to engage

him in conversation. Officer Heller then wrote

that Davis overheard Officer Heller talking with

Sergeant Malick of the Akron Police Department

about the kilos they found in Davis’ car. The

officers mentioned to each other that the kilos

may be fentanyl. According to Officer Heller’s

testimony, when Davis heard the officers

mention fentanyl, Davis chimed in “I can tell ya

that ain’t no fentanyl.”

Akron Police Narcotics officers had also arrived

to assist with the investigation. Trooper

McCarthy returned to Davis’ vehicle to secure it.

Trooper McCarthy observed a loaded Glock .40

caliber pistol with an extended magazine on the

driver’s floor area, a black duffle bag in the rear

cargo area containing 11 one-kilogram packages

of suspected drugs, and several cellular

telephones. See Government Exhibits 2 and 3. A

field test of one of the packages tested positive

for the presence of fentanyl. ECF No. 41-1 at

App. 16

PageID #: 200. The vehicle was subsequently

towed away and impounded.

Shortly after Davis’ arrest, investigators from

the Akron-Summit County High-Intensity Drug

Trafficking Area decided to obtain a search

warrant for drugs, records of drug trafficking,

and firearms at Davis’ known residence at 435

Center Road, New Franklin, an Akron suburb

located in Summit County, Ohio. Detective

Jimmy Fields from the Summit County Sheriff’s

Office Drug Unit drafted the Affidavit in support

of the search warrant (ECF No. 41-1 at

PageID #: 194–204). He is an experienced law

enforcement officer. ECF No. 41-1 at PageID #:

201.

In the sworn Affidavit, Detective Fields stated

that he was aware that Detective Shawn Brown

of the Akron Narcotics Unit conducted an

interview with a credible Confidential Human

Source (“CHS”) in September 2016. The CHS

advised Detective Brown that they were aware

that one Jerry Davis aka “JD” was a large-scale

heroin dealer in the Akron area. The CHS stated

that they did not have a current telephone

number or address for Davis, but that they were

aware that Davis was currently living in an

Akron suburb. Agents from the Drug

Enforcement Administration (the “DEA”)

identified Davis as a significant, large-scale drug

dealer operating in the Akron area. The Agents

seized and subsequently forfeited as drug

proceeds, large amounts of U.S. currency from

App. 17

Davis on several occasions, including $10,429 on

September 6, 2006, $7,230 on March 12, 2008,

$7,542 on July 16, 2008, $18,000 on August 26,

2008, and $27,000 on May 7, 2013. ECF No. 41-1

at PageID #: 200. “Over the past couple

[months],” Detective Fields had personally

participated in the investigation of Davis’ drug

trafficking activities.3 Detective Fields noted

that he worked on the investigation into Davis’

drug trafficking activities along with other

investigators from the Summit County Drug

Unit (“SCDU”), the Akron Police Narcotics Unit,

and the Ohio State Highway Patrol. Through

various investigative techniques, Detective

Fields and other investigators from the SCDU

learned that Davis and others had been involved

in heroin distributions in the Akron, Ohio area

over the past several months. ECF No. 41-1 at

PageID #: 197.

In addition, Detective Fields performed a

criminal records check for Davis that showed

that Davis has a history of weapon and drug

related convictions. Specifically, in 2001 Davis

was convicted of carrying a concealed weapon, in

2012 Davis was convicted of having a weapon

while under disability in Akron, Ohio, and was

3

According to the Government, a typographical error appears on

page four of the Affidavit in support of the search warrant (ECF

No. 41-1 at PageID #: 194–204). Detective Fields intended that the

sentence read: “Over the past couple months” in lieu of “Over the

past couple years” which was previously inadvertently specified in

the Affidavit. Supplemental Response, ECF No. 42 at PageID #:

205–206.

App. 18

also convicted in 2012 of carrying a concealed

weapon in Boston Heights, Ohio. ECF No. 41-1

at PageID #: 198–99. In 2006, Davis was

convicted of possession of cocaine in Akron,

Ohio, and was convicted of possession of heroin

in 2012 in Akron, Ohio. Based upon all of the

information presented in the Affidavit, law

enforcement had identified Davis as a drug

dealer as far back as 2006. Davis’ recent

contacts with the DEA and the criminal justice

system only further cemented the fact that law

enforcement identified Davis as a drug dealer.

Detective Fields also noted in the Affidavit that

a search of the duffle bag located in the rear

cargo area of the Ford Explorer “revealed eleven

(11) rectangular shaped objects wrapped in

green cellophane. A field test of one of the

packages tested positive for the presence of

Fentanyl.” Detective Fields stated that “Det. Jon

Heimbaugh of New Franklin Police Department

. . . knows through surveillance over the past

year Jerry DAVIS resides at 435 Center Road.”

ECF No. 41-1 at PageID #: 200. Affiant attested

that he knew that drug traffickers very often

place assets in the names of other people rather

than in their own names to avoid detection from

government agencies. Detective Fields also

declared that he knows that, even though these

assets are in other persons’ names, the drug

dealers actually own and continue to use these

assets and exercise dominion and control over

them. ECF No. 41-1 at PageID #: 201. Detective

Fields stated he knows that drug traffickers

App. 19

commonly have firearms in their possession, on

their person and/or at their residence. He also

stated that drug traffickers possess firearms to

protect and secure their property, including

their narcotics and other valuables. ECF No.

41-1 at PageID #: 203. In the Affidavit, Detective

Fields indicated that he had good cause to

believe that firearms may have been concealed

at Davis’ residence. ECF No. 41-1 at PageID #:

194–95.

At approximately 4:18 p.m. on November 1,

2016, Judge Lynne S. Callahan of the Summit

County, Ohio Court of Common Pleas authorized

and signed a search warrant for Davis’

residence. ECF No. 41-1. The search warrant

was executed on November 1, 2016. The list of

19 items seized (ECF No. 41-1 at PageID #:

192–93) includes 25 kilogram “bricks” marked

with a “C,” $67,658 in U.S. currency, 18K gold

Rolex watch, 18K gold diamond ring, 14K white

gold diamond ring, Springfield .45 caliber

handgun and ammunition, Glock .45 caliber

model 30 handgun and ammunition, and 22

rounds of .45 caliber ammunition.

ECF No. 45 at PageID #: 215–21.

Following the arrest of Petitioner, a federal jury

indicted Petitioner in a five-count indictment. ECF

No. 13. Petitioner was indicted on two counts of

possession of cocaine in violation 21 U.S.C. § 841(a)(1)

and (b)(1)(A)(ii) (Counts 1 and 3); two counts of

possession of a firearm in violation of 18 U.S.C.

§ 924(c)(1)(A)(i) and (c)(1)(C)(i) (Counts 2 and 4); and

App. 20

one count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1) (Count 5). ECF No. 13

at PageID #: 28–29. Counts 1 and 2 stemmed from the

contraband found in Petitioner’s vehicle and Counts 3

and 4 were in relation to the contraband found at 435

Center Road. ECF No. 13 at PageID #: 28–29.

Petitioner was found guilty at trial on Counts 1, 2,

3, and 5 and sentenced to 248-months of incarceration.

ECF No. 82. Following the Sixth Circuit’s guidance,

which provides that multiple § 924(c) convictions

violate the double jeopardy clause, the Court vacated

Count 4 because it was a duplicitous 18 U.S.C. § 924(c)

conviction. See, e.g., United States v. Whitson, 664 F.

App'x 503, 507 (6th Cir. 2016) (instructing district

court on remand to dismiss one of the two 924(c) counts

to avoid a violation of the double jeopardy clause).

Afterwards, Petitioner directly appealed his

convictions, and all were affirmed. Davis, 751 F. App'x

at 892. Petitioner then filed the underlying petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2255.

ECF No. 107.

Petitioner presents five claims for relief, all in the

vein of ineffective assistance of counsel under

Strickland v. Washington, 466 U.S. 668 (1984). The

first three claims argue ineffective assistance of

appellate counsel and the last two argue ineffective

assistance of trial counsel. The Court held an

evidentiary hearing on the limited questions of fact at

issue in relation to trial counsel’s performance.

Subsequently, the Court allowed the parties to submit

supplemental briefing on the issue of ineffective

assistance of trial counsel. The Court now addresses

App. 21

the issues of ineffective assistance of appellate counsel

and trial counsel.

II. Standard of Review

Section 2255 of Title 28 of the United States Code

provides:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the

right to be released upon the ground that the

sentence was imposed in violation of the

Constitution or laws of the United States, or

that the court was without jurisdiction to impose

such sentence, or that the sentence was in

excess of the maximum authorized by law, or is

otherwise subject to collateral attack, may move

the court which imposed the sentence to vacate,

set aside or correct the sentence.

To prevail on a motion to vacate under Section 2255,

the movant must allege “(1) an error of constitutional

magnitude; (2) a sentence imposed outside the

statutory limits; or (3) an error of fact or law that was

so fundamental as to render the entire proceeding

invalid.” Mallett v. United States, 334 F.3d 491, 496-97

(6th Cir. 2003) (quoting Weinberger v. United States,

268 F.3d 346, 351 (6th Cir. 2001)).

Ineffective assistance of counsel may be a proper

basis for relief under 28 U.S.C. § 2255, provided

Petitioner can demonstrate counsel’s ineffectiveness.

To establish ineffective assistance of counsel, Petitioner

must first demonstrate that counsel’s performance was

deficient. Strickland v. Washington, 466 U.S. 668, 687

(1984). This is a two-part test that requires a

App. 22

demonstration of error and prejudice. The error prong

requires a showing, based on an “objective standard of

reasonableness,” that counsel made errors so serious

that he was not functioning as the ‘counsel’ guaranteed

to the defendant by the Sixth Amendment. Id. at

687–88. To satisfy the error prong, Petitioner must

overcome the strong presumption that counsel’s

conduct fell “within the wide range of reasonable

professional assistance,” and that “the challenged

action ‘might be considered sound trial strategy.’ ” Id.

at 689. The judicial scrutiny of a possible error is

highly deferential to counsel. Id. The prejudice prong

requires showing that counsel’s deficient performance

prejudiced the defense. Id. at 687. To satisfy the

prejudice requirement of Strickland, Petitioner must

show “that there is a reasonable probability that, but

for counsel’s errors, the result of the proceeding would

have been different. A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Id. at 694. Failure to satisfy either

requirement is fatal to an ineffective assistance claim.

Id. at 697. While Petitioner must prove each element of

the two-part Strickland test to establish an ineffective

assistance of counsel claim, the Court is not required to

conduct an analysis under both Strickland prongs. Id.

at 697. If the Court finds that Petitioner cannot meet

one of the two Strickland prongs, it need not address

the other. Id.

III. Discussion

Petitioner’s motion presents two separate grounds

on which he claims that he is being held in violation of

the Constitution, laws, or treaties of the United States.

App. 23

For the reasons set forth below, neither of the grounds

merit an evidentiary hearing or relief under 28 U.S.C.

§ 2255.

A. Assistance of Appellate Counsel

First, Petitioner argues that his appellate counsel

was ineffective for failing to raise certain arguments on

appeal. Counsel’s failure to raise an issue on appeal is

only considered ineffective assistance if there is a

reasonable probability that inclusion of the issue would

have changed the result of the appeal. Greer v.

Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). Appellate

counsel’s failure to raise an issue that lacks merit

cannot constitute ineffective assistance of appellate

counsel. Willis v. Smith, 351 F. 3d 741, 744-45 (6th Cir.

2003). To evaluate a claim of ineffective assistance of

appellate counsel, the Court must assess the strength

of the claim that counsel failed to raise. Wilson v.

Parker, 515 F.3d 682, 707 (6th Cir. 2008).

i. Statements Made at the Hospital

Petitioner first argues that his appellate counsel

failed to challenge the District Court’s denial of

Petitioner’s “motion to suppress statements made to

law enforcement.” ECF No. 107-1 at PageID #:1718.

Specifically, Petitioner refers to the statement he made

while at the hospital: “I can tell you that ain’t no

fentanyl.” ECF No. 107-1 at PageID #:1713. The

statement was made directly after Sergeant Malick and

Officer Heller remarked to each other that the seized

drugs may have been fentanyl. ECF No. 107-1 at

PageID #:1713. In resolving Petitioner’s Motion to

Suppress, the Court concluded that Petitioner was not

App. 24

being interrogated and that his statements were

voluntary. ECF No. 45 at PageID #: 225. Petitioner

does not cite contrary authority to demonstrate the

merit of this claim.

Voluntary statements are not protected by Miranda

or the Fifth Amendment. United States v. Collins, 683

F.3d 697, 703 (6th Cir. 2012) (discussing that

volunteered statements are not barred by the Fifth

Amendment and their admissibility is not affected by

the holding in Miranda). To determine if a statement

is voluntary, the Court must assess whether a

reasonable person, using all of the facts and

circumstances available, would view the police’s actions

as attempts to obtain responses to use at trial.

Bachynski v. Stewart, 813 F.3d 241, 246 (6th Cir.

2015).

A reasonable person would not view an off-hand

statement regarding the theory of the case as an

attempt to obtain incriminating statements. In this

instance, the officers’ statements about fentanyl were

not directed at Petitioner. The officers were neither

conversing with Petitioner, nor were they prying into

Petitioner’s reasons for committing the offense, but

rather they were just discussing amongst themselves a

possible theory of the case based on the facts.

Petitioner chose to interrupt the officers’ conversation

on his own accord, demonstrating that his statement

was voluntary. He has not made an argument with

merit alleging that this claim would have been

sufficient or had any reasonable probability of success.

App. 25

ii. Search Warrant Affidavit

Petitioner also argues that his appellate counsel

was ineffective because he failed to “argue that the

search warrant affidavit’s representation that Mr.

Davis resided at 435 Center Road was conclusory in

nature and therefore failed to establish probable

cause.” ECF No. 107-1 at PageID #:1721. The Court

need not, however, analyze this claim in detail because

Petitioner is improperly trying to relitigate this issue,

which is not permitted in a § 2255 proceeding.

Not only did Petitioner’s appellate counsel address

the search warrant affidavit on appeal, but the Sixth

Circuit also directly reviewed the sufficiency of the

search warrant affidavit. Davis, 751 F. App'x at 891–92

(“Davis next contends that the district court should

have suppressed the evidence found in his house

because, he says, the affidavit in support of the

warrant application failed to establish probable

cause.”). Absent exceptional circumstances or an

intervening change in the law, Petitioner may not use

his § 2255 petition to relitigate issues decided on direct

appeal. See Wright v. United States, 182 F.3d 458, 467

(6th Cir. 1999). Petitioner argues that appellate

counsel failed to contest the sufficiency of information

in the search warrant affidavit. ECF No. 110 at PageID

#1754. The decision of Petitioner’s appellate counsel to

present an argument on the affidavit issue that is

different from the one raised in the habeas petition is

neither indicative of ineffective assistance nor evidence

of exceptional circumstances that would permit

Petitioner to relitigate whether there was probable

cause for the search warrant. See Pitts v. United States,

App. 26

No. 17-6116, 2018 WL 4566275, at *2 (6th Cir.

Apr. 3, 2018) (finding that Petitioner’s repackaging of

a claim which was essentially one of the same

arguments he made on appeal is not permitted in a

§ 2255 motion).

iii. Franks Hearing

Third, Petitioner claims that his appellate counsel

was ineffective because he failed “to raise the District

Court’s denial of Trial Counsel’s request for a Franks

hearing.” ECF No. 107-1 at PageID #:1724. This claim

also falls under the umbrella of the search warrant’s

validity, which was previously litigated on direct

appeal. Therefore, counsel’s alleged failure to raise this

meritless claim does not constitute ineffective

assistance.

Under Franks, there is “a presumption of validity

with respect to the affidavit supporting the search

warrant.” Franks v. Delaware, 438 U.S. 154, 171

(1978). A defendant can only request a hearing if he

raises a substantial question as to whether the

affidavit supporting the search warrant contained

materially false information. This standard requires

making a “substantial preliminary showing” of

knowing or reckless inclusion of a false statement or

material omission in the affidavit and that the

statement was necessary to make a finding of probable

cause. United States v. Bateman, 945 F.3d 997 (6th Cir.

2019). To obtain a hearing for an omission in the

affidavit, Petitioner must show that the facts were

omitted with the intention of misleading the magistrate

judge. United States v. Hampton, 760 F. App’x 399 (6th

Cir 2019). This particular issue regarding a Franks

App. 27

hearing was raised at the trial level, and the Court

held that the initial showing was not met. ECF No. 45

at PageID #: 229. Petitioner pleads no facts that

indicate that materially false information was included

in the warrant. He argues that the warrant application

affidavit included a false statement because it failed to

mention that Petitioner’s driver’s license listed a

residential address other than 435 Center Road. ECF

No. 107-1 at PageID #: 1715. Such an omission was not

a “knowing or reckless falsity,” especially considering

that the affidavit mentioned that drug traffickers

placed assets in the names of other people. ECF No.

41-1 at PageID #: 201. Accordingly, Petitioner has not

shown that his appellate counsel committed an error

that leads to prejudice, because raising the Franks

issue on direct appeal would have been meritless.

Overall, the three arguments Petitioner claims his

appellate counsel should have raised are all meritless.

Petitioner’s appellate counsel’s decision to limit his

arguments to those with merit is a constitutionally

sufficient strategy. See Jones v. Barnes, 463 U.S. 745,

754 (1983) (explaining “for judges to second-guess

reasonable professional judgments and impose on

appointed counsel a duty to raise every “colorable”

claim suggested by a client would disserve the very

goal of vigorous and effective advocacy.”).

B. Assistance of Trial Counsel

Petitioner’s argument about the ineffectiveness of

his trial counsel is twofold. First, he argues he did not

give his attorneys permission to engage in a strategy

that would de facto concede his guilt. Second, he argues

that even if he consented to such a strategy, the

App. 28

strategy was constitutionally ineffective. The Court

held an evidentiary hearing to address the first

question, because it was not clear from the record

whether Petitioner gave his trial attorney such

permission.

If a defense counsel admits his client’s guilt without

first obtaining his client’s consent, such an action has

been found to be per se unreasonable under Strickland,

and the Court may assume both error and prejudice.

McCoy v. Louisiana, 138 S. Ct. 1500 (2018). At the

outset, the Court is not convinced that Petitioner’s

counsel conceded his guilt at all. Petitioner claims that

his attorney conceded his guilt when his attorney

stated in opening statements and closing arguments

that he was not going to challenge any count but Count

4.

“[M]ost of the evidence that you’re going to hear

is largely going to be uncontested by the defense.

And the real dispute is going to center around

that unloaded firearm that was found in that

detached garage... [W]e will ask that you return

a verdict of not guilty as to that single count.”

(Doc. 96, p. 20) (Doc. 97, p. 58).

“... Jerry Davis accepts responsibility for his

participation in these offenses. And based on the

evidence that the government has presented

here and with that acknowledgement, you know,

your verdicts will so reflect his participation in

these offenses... I want to focus my remarks on

really the only count in the indictment that is

disputed, and that would be Count 4.”

App. 29

ECF No. 121 at PageID #: 1914–15.

These statements are not concessions of guilt

because the Government bore the burden of proving

Petitioner’s guilt beyond a reasonable doubt at trial for

all counts. In this case, Petitioner did not attempt to

enter stipulations conceding the facts or his guilt

regarding any of the charged counts. Without fact

stipulations, there was no true concession of guilt

because declarations made in opening statements and

closing arguments are not evidence. The Government

still had to present sufficient evidence for the jury to

find Petitioner guilty beyond a reasonable doubt of the

counts, regardless of what his counsel stated during

argument.

If there were a concession, however, Petitioner’s

current argument is likely made in bad faith.

Petitioner sought to take advantage of his “concession

of guilt” at sentencing to obtain an adjustment for

acceptance of responsibility. His attempt to use his

attorney’s strategy as a sword to attack his conviction

now, but as a shield from a longer sentence at

sentencing, demonstrates that Petitioner’s current

argument is made in bad faith. If Petitioner truly did

not wish to concede his guilt or accept responsibility, he

had the opportunity to make that clear during his

allocution at sentencing.4 He could have stated that he

did not want to accept responsibility because he never

planned to do so or that he disagreed with his counsel’s

4

At trial, Petitioner could have complained that his counsel’s

“concession” was made without his consent. Petitioner made no

such contemporaneous complaint.

App. 30

trial strategy. Additionally, he could have mentioned

this in letters he sent to the Court after sentencing.

The fact that Petitioner had multiple opportunities to

raise his concerns about his trial counsel’s

representation, but failed to do so, indicates that his

current argument lacks credibility.

To shed light on whether Petitioner conceded his

guilt, the Court held an evidentiary hearing about this

issue. During the evidentiary hearing, Petitioner’s

counsel candidly stated that he had no specific memory

of this case, specifically regarding whether he discussed

with Petitioner the trial strategy of conceding guilt to

certain counts. Transcript of Evidentiary Hearing, ECF

No. 120 at PageID #: 1835–36. However, Petitioner’s

counsel offered that in his experience, he would

definitely discuss concession of guilt with his client

prior to trial. ECF No. 120 at PageID #: 1834. The

Court finds that Petitioner’s counsel’s testimony was

more credible than that of Petitioner.

The second argument that Petitioner makes is that

even if he agreed to concede his guilt, the strategy itself

was not professionally reasonable. There is nothing in

the record to support that this strategy was

unreasonable. Petitioner claims his trial counsel

provided ineffective assistance when his counsel only

challenged Count 4, one of the two 924(c) convictions.

Petitioner contends that it is unreasonable for trial

counsel to only “challenge a single count in a

multiple-count indictment where Trial Counsel” can

anticipate that the challenged count will likely be

merged or vacated. ECF No. 107-1 at PageID #: 1729.

The fact that Count 4 was dismissed rather than Count

App. 31

2 is insignificant. Furthermore, contrary to Petitioner’s

arguments, trial counsel’s failure to contest Count 3

was not an unreasonable trial tactic, under the

circumstances then existing. Consequently, trial

counsel’s decision to only contest Count 4 was not so

prejudicial as to have impacted the trial outcome.5

IV. Conclusion

Accordingly, the Court finds that Petitioner failed to

demonstrate any grounds on which he is entitled to

relief under § 2255. Petitioner Jerry J. Davis, Jr.’s

Motion to Vacate Sentence Under 28 U.S.C. § 2255

(ECF No. 107) is denied.

The Court certifies, pursuant to 28 U.S.C.

§ 1915(a)(3), that an appeal from this decision could not

be taken in good faith, and that there is no basis upon

which to issue a certificate of appealability. 28 U.S.C.

§2253(c); Fed. R. App. P. 22(b).

IT IS SO ORDERED.

October 20, 2022

Date

5

/s/ Benita Y. Pearson

Benita Y. Pearson

United States District Judge

The evidence of Petitioner’s guilt was overwhelming. Even the

Sixth Circuit’s brief decision mentioned that the affidavit “showed

precisely” evidence of Petitioner’s role as “a ‘major player[] in a

large, ongoing drug trafficking operation.’” ECF No. 100 at Page ID

#: 1630.

App. 32

APPENDIX C

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CASE NO. 5:20CV414

(5:16CR374)

JUDGE BENITA Y. PEARSON

[Filed October 21, 2022]

________________________________

JERRY J. DAVIS, JR.,

)

)

Petitioner,

)

)

v.

)

)

UNITED STATES OF AMERICA, )

)

Respondent.

)

________________________________ )

ORDER OF DISMISSAL

The Court, having filed its Order, hereby denies

Petitioner Jerry J. Davis, Jr.’s Motion to Vacate,

Set-Aside, or Correct Sentence Under 28 U.S.C. § 2255.

ECF No. 107.

The Court certifies, pursuant to 28 U.S.C.

§ 1915(a)(3), that an appeal from this decision could not

be taken in good faith, and that there is no basis upon

App. 33

which to issue a certificate of appealability. 28 U.S.C.

§2253(c); Fed. R. App. P. 22(b).

IT IS SO ORDERED.

October 21, 2022

Date

/s/ Benita Y. Pearson

Benita Y. Pearson

United States District Judge