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United States v. Davis

United States District Court, W.D. Oklahoma

June 21, 2018




         Before 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.[1]

         At the 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to decide the issue[s] presented.” 28 U.S.C. § 753(f); see also United States v. Lewis, 37 F.3d 1510 (10th Cir. 1994) (unpublished) (applying § 753(f) standard to request for pretrial records).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.

         Moving 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.

         I. Background

         The 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, 411.

         Defendant 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. Id.

         The 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[2]—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.

         Defendant 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.

         From 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).

         Defendant 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.

         II. Discussion

         The 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).

         Second, 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). ...

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