United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE.
the Court is Defendant Niko Davis's Motion under 28
U.S.C. § 2255 to vacate, set aside, or correct his
sentence, Doc. 1207, which he supplemented with additional
grounds for relief, Doc. 1315.
outset, the Court denies Defendant's request for an
extension to reply to the Government's response to his
Motion, Doc. 1596. Defendant seeks a third extension because
the Court has not provided him legal documents to assist him
in filing a reply—“preliminary and sentencing
transcripts, ” the “criminal complaint and . . .
complaint affidavit, ” and the indictment. Doc. 1596;
see Docs. 1571, 1424, 1522. Defendant has not shown
that his Section 2255 Motion “is not frivolous”
or that the documents are “needed to decide the
issue[s] presented.” 28 U.S.C. § 753(f); see
also United States v. Lewis, 37 F.3d 1510 (10th Cir.
1994) (unpublished) (applying § 753(f) standard to
request for pretrial records). A generalized desire “to
have an adequate defen[s]e” is insufficient. Doc. 1596.
to the merits and construing Mr. Davis's pro se motion
liberally, the Court finds nine potential grounds for
ineffective assistance of his counsel, Edmond Geary. The
Court denies the Motion for the reasons discussed herein.
Government arrested Defendant Niko Davis on July 14, 2016, as
part of a criminal complaint charging 19 defendants with
various drug trafficking crimes. Docs. 1, 15. He appeared
before U.S. Magistrate Judge Suzanne Mitchell that same day,
at which point she ordered him temporarily detained and
appointed Ed Geary to represent him. Docs. 82-84. On July 21,
2016, Judge Mitchell found probable cause for the complaint
against Defendant and ordered his detention pending trial.
Docs. 187, 224. The Court granted the Government's motion
for an extension of time to indict Defendant on August 9,
2016, and the Government filed a superseding indictment on
September 6, 2016. Docs. 244, 251, 289. When Defendant was
arraigned on this indictment on September 16, 2016, the trial
was set for the November 2016 jury trial docket, but on
October 12, 2016, the Court declared the case complex and
continued the jury trial to the April 2017 docket. Docs. 350,
first indicated his dissatisfaction with Mr. Geary's
representation on November 7, 2016, when he wrote to Judge
Mitchell that he “would like to fire [his]
attorney.” Doc. 457. Defendant alleged that Mr. Geary
was not “defending [Mr. Davis] to the best of his
power, ” he would not let Mr. Davis know which motions
to file, and he did not ask enough questions at the
preliminary hearing; they were “bumping heads not
seeing eye to eye” and Defendant wanted Mr. Jack
Dempsey Pointer or Ms. Jacquelyn L. Ford to represent him.
Id. Defendant reversed course a week later and wrote
to Judge Mitchell that he did not want to fire his attorney
and they “worked out [their] problems.” Doc. 472.
Then on November 25, 2016, Defendant reversed course again
and wrote that he “would like to fire [his] attorney
Edmond Geary on the grounds of insufficient counsel.”
Doc. 479. Defendant again named the two attorneys he would
prefer to represent him and objected to Mr. Geary's
unauthorized agreement to “Jack Fisher['s] motion
to continue” the indictment date. Id. He also
accused Mr. Geary of working for the U.S. Attorney.
Court set a hearing on Defendant's request for new
counsel, but deferred the hearing until it could consider Mr.
Geary's December 5, 2016, motion for an order of
competency to stand trial. Docs. 487-88. Based on Mr.
Geary's difficulty communicating and working with
Defendant—as well as Defendant's
family's representations to Mr. Geary that Defendant has
a history of learning and communication problems,
impulsiveness, and attention deficit disorder—Mr. Geary
requested that the Court order a mental competency evaluation
to determine if he has the capacity to make rational
decisions, assist counsel, or to waive the right to counsel.
Doc. 487. The Court ordered a psychiatric evaluation on
December 6, 2016. Doc. 489.
filed a filed a motion to substitute counsel on February 23,
2017, repeating his desire to proceed pro se, but asking that
counsel be appointed to assist him. Doc. 695. The Court held
a hearing the following week and found, based on an
undisputed competency evaluation, that Defendant was
competent to stand trial. February 28, 2017, Hearing
Transcript, Doc. 1285, at 2-3. The Court heard from Mr. Davis
and Mr. Geary—Mr. Davis repeated many of his prior
complaints regarding Mr. Geary's representation and Mr.
Geary did the same regarding complaints laid out in the
competency motion. Id. at 3-8; see Docs.
457, 479, 487. The Court was “entirely satisfied that
[Mr. Geary] is competent counsel and that he is fully able to
give [Mr. Davis] good advice and to represent [him].”
Doc. 1285, at 8. Thus, after explaining the dangers of
proceeding pro se in a complex case with such a high
potential sentence, the Court granted Defendant's request
to continue pro se and appointed Mr. Geary as standby
counsel. Id. at 8-15.
April 13-May 11, 2017, Defendant filed pro se motions seeking
discovery (Doc. 768, granted in part at Doc. 837), a private
investigator (Doc. 769, denied at Doc. 780), suppression of
wiretaps (Docs. 843, 852), suppression of Special Agent Jamie
Walker's testimony and affidavits (Docs. 844, 866), a
Franks Hearing (Doc. 851), and severance of his trial from
that of the other defendants (Doc. 855).
pled guilty on June 21, 2017 (Docs. 978-83) to distributing
methamphetamine, but following a series of Defendant's
flip-flopping letters regarding which drug he sold (Docs.
1006, 1025, 1033, 1037), the Court allowed him to withdraw
the plea and to enter into a new plea agreement on August 22,
2017, to one count of distributing heroin in violation of 21
U.S.C. § 841(a)(1). See Docs. 1072-78. Mr.
Geary represented Defendant at the second plea hearing and
beyond. Doc. 1072. The Court sentenced Mr. Davis on November
13, 2017, to 84 months imprisonment and four years of
supervised release. Docs. 1175, 1179. Defendant filed his
Section 2255 Motion on November 24, 2017, after which the
Government responded and included an affidavit from Mr. Geary
defending his representation of Mr. Davis. Doc. 1207, Doc.
1322-1; see also Doc. 1315.
Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.” Any
successful claim of ineffective assistance of counsel must
satisfy the two-pronged test laid out in Strickland v.
Washington, 466 U.S. 668, 697 (1984). First, a defendant
must show that his counsel's performance was
deficient—it “fell below an objective standard of
reasonableness.” Id. at 688. This requires
overcoming the strong presumption that counsel's
performance fell within the broad range of reasonable
professional conduct. Id. at 689. Conclusory
allegations or vague descriptions of the alleged deficient
performance will not suffice. United States v.
Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
the defendant must show that his counsel's deficient
performance actually prejudiced his defense. In other words,
a defendant “must show there is a reasonable
probability that, but for his counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
Prejudice in the guilty plea context means “that there
is a reasonable probability that, but for counsel's
errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59 (1985). ...