United States District Court, D. Alaska
ORDER RE MOTION UNDER 28 U.S.C. § 2255
L. GLEASON, UNITED STATES DISTRICT JUDGE
the Court at Docket 93 is self-represented Defendant Terrance
Davis's Motion Under 28 U.S.C. §2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody.
The Government opposed the motion at Docket 115. Oral
argument was not requested and was not necessary to the
January 28, 2015, Defendant Terrance Davis was riding in the
passenger seat of a vehicle that was stopped for a moving
violation by Anchorage police. After initial questioning, the
officer asked Mr. Davis to step out of the vehicle, at which
point the officer noticed what appeared to be a gun inside a
white grocery bag on the floor of the passenger side of the
vehicle. Because Mr. Davis had previously been
convicted of a felony, he was prohibited from possessing a
firearm under federal law. As a result of this incident, an
indictment was filed in this Court on February 19, 2015 that
charged Mr. Davis with Felon in Possession of a Firearm in
violation of 18 U.S.C. §§ 922(g)(1) and
October 13, 2015, Mr. Davis pled guilty to the
charge. There was no plea agreement. On February
8, 2016, Mr. Davis was sentenced to 63 months'
imprisonment.Mr. Davis did not directly appeal his
conviction. On October 24, 2016, he filed the instant
motion to vacate his sentence.
Davis asserts three grounds for vacating his sentence under
28 U.S.C. § 2255, each of which is addressed below.
Defendant's Ground One
ground, Mr. Davis first asserts that due to ineffective
assistance of counsel, his conviction was “obtained by
plea of guilty which was unlawfully induced or not made
voluntarily with an understanding of the nature of the charge
and the consequences of the plea.” A successful
claim of ineffective assistance of counsel requires both that
the representation “fell below an objective standard of
reasonableness” and that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
reviewing a claim of ineffective assistance of counsel, [this
Court] must determine, first, whether the [defendant] has
identified material, specific errors and omissions that fall
outside the ‘wide range of professionally competent
assistance.'” Mr. Davis has failed to identify any
such material, specific errors by his attorney; accordingly,
he is not entitled to relief on this basis.
ground one, Mr. Davis also asserts that the evidence was
insufficient to support the conviction, “[d]ue to the
fact that this was an innocent possession; one that the
applicant was unaware of.” In this regard, Mr. Davis
appears to be disputing the adequacy of the factual basis for
the plea. But this assertion is directly contradicted by Mr.
Davis's sworn testimony at the change of plea
Davis has not shown that his plea was “unlawfully
induced or not made voluntarily with an understanding of the
nature of the charge and the consequences of the plea,
” as he asserts in his motion. During the change of plea
hearing, Mr. Davis affirmed his understanding of the nature
and consequences of his decision to plead guilty during the
THE COURT: And do you understand that the charge to which you
may plead guilty is a felony offense, sir?
THE DEFENDANT: Yes, ma'am.
THE COURT: And as a felon in most jurisdictions, you'd
lose the right to vote, the right to serve on a jury, the
right to hold public office, and the right to possess
firearms. If you were not a citizen of the United States,
you'd be subject to deportation from the United States.
Do you understand those consequences, sir?
THE DEFENDANT: Yes, ma'am.
THE COURT: And if you elect to plead guilty today, then there
are a number of trial rights that you would give up, you
wouldn't have because there would not be a trial, and
I'm going to review those with you; okay? First,
you'd -- if I accept your plea, then you would not have
the right to -- you'd give up the right to a trial by a
jury, which means that a jury would not be here, that the
jury could not convict you unless everybody on the jury
agreed that the Government had proven each of those three
elements of this charge, and proven them beyond a reasonable
doubt. You'd give up that right to have a jury have that
obligation to make that determination one way or the other.
You'd also give up the right to have a lawyer at the
trial with you. If you couldn't afford one, a lawyer
would be appointed for you at the trial. You'd give up
the right at trial to see and hear all of the
Government's witnesses, to cross examine them, have your
lawyer ask them questions.
You give up the right to have your own witnesses. We can get
subpoenas from the court to compel the people to come to
court on your behalf.
You'd also give up a right to testify at trial. And
you'd have a right not to testify, and then the jury
would be instructed they couldn't hold that fact against
you. By pleading guilty, you give up all those rights that
you'd otherwise have at ...