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Davis v. United States

United States Court of Appeals, Eighth Circuit

May 26, 2017

Showin Keon Davis Petitioner - Appellee
v.
United States of America Respondent - Appellant

          Submitted: March 10, 2017

         Appeal from United States District Court for the District of North Dakota - Fargo

          Before LOKEN, MURPHY, and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         After rejecting two plea offers, Showin K. Davis pled guilty to one count of conspiracy to possess with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court sentenced him to 120 months' imprisonment. Davis moved to vacate the conviction and sentence under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. The district court granted the motion in part, ordering the government to reoffer an earlier plea deal. The government appeals.

         Having jurisdiction under 28 U.S.C. §§ 1291 and 2253, this court reverses in part and remands.

         I.

         Davis was indicted for conspiring to distribute controlled substances, a charge with a mandatory ten-year sentence. The government made three plea offers; the second and third are at issue here.

         The first, offered months before trial, was a standard cooperation agreement. Daniel E. Hopper, Davis's appointed attorney, explained the agreement to him. He rejected it.

         A week before trial, the government offered Davis a five-year deal (the second offer). Hopper recommended he take it, explaining a jury likely would find him guilty. He rejected it. They again discussed the five-year deal the first morning of trial. Davis showed no interest in it.

         On the second day of trial, the government made a third offer. It had a mandatory ten-year sentence, but limited the type and quantity of controlled substances attributable to Davis. He accepted. The district court sentenced him to 120 months.

         Davis moved to vacate his conviction and sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel. He asserted four claims. The district court found they

cluster[ed] around two separate theories: (a) during the course of the pretrial proceedings Hopper did not afford Davis an opportunity to review discovery and did not file any pretrial motions; and (b) Hopper failed to provide Davis with the information to make an informed decision on the proposed plea agreement and ultimate change of plea.

         After an evidentiary hearing, the court rejected the first theory, but granted the motion on the second:

While Hopper's representation was not entirely ineffective, during the immediate pretrial preparation phase, Hopper failed to effectively communicate the law of conspiracy in a way that Davis was capable of comprehending; Hopper failed to explain the risks and benefits of the plea offer in a way that Davis could comprehend; and Hopper misinformed Davis of his eligibility for the safety valve. These failures and conveyance of misinformation constitute ineffective assistance of counsel within the meaning of Strickland v. Washington.

         The court vacated the conviction and sentence. It ordered the government to reoffer the five-year deal. The government appeals.

         This court reviews de novo ineffective assistance claims under § 2255, and the underlying factual findings for clear error. United States v. Regenos, 405 F.3d 691, 692-93 (8th Cir. 2005). To establish ineffective assistance during plea negotiations, the petitioner must show "'counsel's representation fell below an objective standard of reasonableness'" and "that such deficient performance prejudiced" the defense. Id. at 693, quoting Strickland v. Washington, 466 U.S. 668, 688 (1984). Prejudice requires "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. "[S]crutiny of counsel's performance must be highly deferential." Hamberg v. United States, 675 F.3d 1170, 1172 (8th Cir. 2012) (internal quotation marks omitted). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Taylor, 258 F.3d 815, 820 (8th Cir. 2001), citing Strickland, 466 U.S. at 689.

         II.

         The district court concluded Hopper was ineffective because he did not communicate "the law of conspiracy" and "the risk and benefits of the plea offer in a way that Davis could comprehend." The court found:

         (1) "At the outset, it should be noted that the claim that Hopper never spent a sufficient amount of time consulting with Davis would be easily disposed of in the ordinary case. Hopper spent more than 27 hours in conference with Davis over the course of pretrial preparation. Under ordinary circumstances, this length of time is typically sufficient to meet with a criminal defendant in a case of this nature."

         (2)"The record does not make plain, but it appears that from the outset that Davis had limited interest in cooperating with the prosecution. It is clear that from the very earliest stages of his representation of Davis, Hopper tried to convince Davis that cooperation was the best strategy. The record also makes plain that Davis believed that the United States would have difficulty both positively identifying him as a person involved in the conspiracy and establishing a role for ...


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