United States of America v. Hudson et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CR-16-119-R-17
)
NIKO DEANDREA’ DAVIS, 	)
)
Defendant. 	)
ORDER
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Cir. 1994) (unpublished) (applying § 753(f) standard to request for pretrial records).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.
1 See also Docs. 1208, 1244 (clarifying Defendant’s intent to proceed under Section 2255).
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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
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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 Defendant2—as well as Defendant’s family’s representations to Mr. Geary
2 	5. Since his appointment in this case, undersigned counsel has proceeded to investigate
this matter and prepare a defense. However, after several meetings with Mr. Davis, it has become
evident to undersigned counsel that Mr. Davis does not have the present ability to consult with
counsel with a reasonable degree of rational understanding so as to be able to assist in the
preparation of a defense. Mr. Davis has insisted on defending his case in a manner that is not
based in reality, and he rejects consideration of any different approaches. He consistently
disregards the legal analyses and descriptions of evidence which counsel has given him. Mr.
Davis has expressed disinterest in knowing about the Title III recordings and other evidence the
government intends to use at trial. Instead, Mr. Davis has insisted on pursuing narrow theories
he has composed which include peculiar interpretations of law and fact, which he insists will win
his case. Mr. Davis refuses to explain these interpretations to counsel in detail when counsel has
asked to understand. Mr. Davis reacts with impatience and hostility when counsel asks for
explanations or asks Mr. Davis to consider negative possibilities in discussion.
6. Mr. Davis has insisted on particular meanings for certain legal terms and procedures
that are bizarre, and when counsel insists these interpretations are erroneous, Mr. Davis accuses
counsel of working for the prosecution. Mr. Davis has blamed counsel for Mr. Davis being
detained, insists he never should have been detained, and Mr. Davis has questioned counsel’s
loyalty since he was held detained. Mr. Davis has also questioned the impartiality of Magistrate
Judge Mitchell ever since she ordered Mr. Davis detained. Mr. Davis has read certain court
decisions which he interprets to his benefit, but Mr. Davis will not entertain any question about
his interpretation of these decisions; and he is suspicious of any questioning of his interpretations
and opinions.
7. When counsel has requested clarification from Mr. Davis so that counsel can reduce
Mr. Davis’s theories into the form of a motion to the Court, Mr. Davis has stated that no motion
is necessary, that Mr. Davis’s analyses are self-evident and that counsel is trying to interfere
with Mr. Davis’s ideas for his defense.
Motion for Determination of Competency, Doc. 487.
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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).
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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
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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). Failure to demonstrate either prong is fatal to a petitioner’s claim for ineffective
assistance of counsel. Smith v. Robbins, 528 U.S. 259, 286 n. 14 (2000).
Once a defendant waives the right to counsel and continues pro se, he “cannot
thereafter complain that the quality of his own defense amounted to a denial of ‘effective
assistance of counsel.’” McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (quoting Faretta
v. California, 422 U.S. 806, 834 n.46 (1975)); see also McKaskle, 465 U.S. at 183 (“A
defendant does not have a constitutional right to choreograph special appearances by
counsel.”). Because “claims of ineffective assistance of standby counsel cannot be brought
by pro se defendants,” the Court focuses on the time Mr. Geary represented Defendant from
July 14, 2016, through February 28, 2017, when Defendant switched to pro se, and then
again from the second plea hearing on August 22, 2017, until sentencing on November 13,
2017. United States v. Dotson, 28 F. App’x 801, 802 (10th Cir. 2001) (unpublished).
1. 	Unauthorized agreement to continuance, violation of attorney-client privilege, and
failure to challenge an untimely arraignment
Defendant fails to satisfy either Strickland prong regarding his allegations that Mr.
Geary (1) agreed to an unauthorized continuance, (2) “violated attorney-client privilege
when he agreed to a[n] email from the government without [his] knowledge and without
[his] consent,” and (3) failed to challenge his untimely arraignment on the second
superseding indictment. Doc. 1207, at 3; Doc. 1315, at 1. It appears Defendant is referring
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to an email between the Government and defense attorneys on July 27, 2016, discussing an
offer by defense attorney Jack Fisher to delay the indictment. Doc. 1207-1.
Mr. Geary acknowledges that Defendant initially objected to any continuance of the
trial, but when Mr. Geary “explained [the] need to review the great volume of discovery,
[Defendant] relented.” Doc. 1322-1; see also Docs. 244, 251, 289, 526, 547, 693 (granting
continuances of the indictment and trial). As to the delayed indictment, it is unclear how Mr.
Geary’s conduct constituted deficient performance. Further, even if counsel agreed to a later
indictment or trial without Defendant’s permission, Defendant has not shown a breach of
attorney-client privilege or prejudice, especially considering the Court would not have
forced an early trial for a case with dozens of defendants and tens of thousands of pages of
discovery. Similarly, Defendant’s argument about his uncontested arraignment on the
second superseding indictment, Docs. 601, 834, is conclusory and meritless. See Fisher, 38
F.3d at 1147.
2. 	Failure to properly advise Defendant about his plea and guidelines range
Defendant next argues that Mr. Geary failed to properly advise him about his plea,
particularly the applicable Sentencing Guidelines range and dates in the agreement. Doc.
1207, at 3–4 (“I was told that I was going to receive a lesser sentence than 71–87 months by
my attorney, that’s why I signed . . . .”); Doc. 1315, at 1. Defendant cannot claim ineffective
assistance concerning his first plea because he was pro se and the Court allowed him to
withdraw it, thereby eliminating potential prejudice. McKaskle, 465 U.S. at 177 n.8, 183;
Dotson, 28 F. App’x at 802.
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As to the second plea, at which Mr. Geary began representing Defendant formally
that same morning, the record directly refutes Defendant’s claim. See Doc. 1072. Defendant
checked “yes” to the question in his plea petition, “Do you know the sentence you will
receive is solely a matter for the judge to decide?” Doc. 1074, at 4; see also Change of Plea
Transcript, Doc. 1322-2, at 2 (“THE COURT: You understand -- do you understand the
sentence you will receive is solely a matter within the control of the judge? . . . THE
DEFENDANT: Yes, your honor.”). Defendant also acknowledged that the maximum
sentence was twenty years imprisonment and that the Court could sentence him above or
below the Sentencing Guidelines range. Id. at 4, 7. In consulting with Defendant, Mr. Geary
“read slowly aloud in their entirety both the plea agreement and the petition to enter plea of
guilty and offered explanations throughout.” Doc. 1322-1, at 1. Mr. Geary maintains that he
answered all of Defendant’s questions and told him that the sentence was solely in the
judge’s discretion. Id. at 1–2. The Court is satisfied with Mr. Geary’s performance
throughout the plea process. Regardless, if Mr. Geary committed a “miscalculation or
erroneous sentence estimation,” such errors do not qualify as “constitutionally deficient
performance rising to the level of ineffective assistance of counsel.” United States v.
Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993). Moreover, Defendant has not shown “a
reasonable probability that,” but for Mr. Geary’s conduct, “he would not have pleaded guilty
and would have insisted on going to trial.” Hill, 474 U.S. at 59.
3. 	Failure to investigate Defendant’s case or perform “certain pretrial functions”
Defendant alleges a general failure to investigate Defendant’s case or perform pretrial
functions. Doc. 1207, at 2; Doc. 1315, at 1. “[W]e are not required to fashion Defendant’s
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arguments for him where his allegations are merely conclusory in nature and without
supporting factual averments.” Fisher, 38 F.3d at 1147. The Court cannot test counsel’s
adequacy without specific allegations. And Defendant’s baseless citation of four cases does
not cure this insufficiency. See Doc. 1207, at 2.
Nonetheless, the record reflects that Mr. Geary offered ample pre-trial assistance to
Defendant, but Defendant merely disagreed with the viability of certain strategic choices,
leading him to exercise his right to proceed pro se. Doc. 1207, at 2; see Doc. 487; Doc. 1322-
1; Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (“[D]efendant bears the burden of
proving that counsel’s representation was unreasonable under prevailing professional norms
and that the challenged action was not sound strategy.”).
4. 	Failure to suppress the “ghost heroin”
It is unclear if Defendant is challenging Mr. Geary’s failure to file a pre-trial motion
to suppress or to his alleged failure to object to the heroin considered for plea and sentencing
purposes. See Doc. 1207, at 2 (“My attorney could have had the (ghost) heroin dismissed
from my case.”); Doc. 1315, at 1. If the former, the claim became moot when Defendant
represented himself and pled guilty.3 If the latter, Defendant cannot show deficient
performance or prejudice because he stipulated to the drug quantity during his second plea,
then at the sentencing stage Mr. Geary did object to the drug quantity; the Court overruled
the objection because it did not affect the applicable Sentencing Guidelines range. Plea
3 The Court does not suggest, as the Government does, that Defendant somehow lost any preexisting ineffective
assistance claim once he started representing himself. See Doc. 1322. Defendant’s burden to show prejudice did
become more difficult, however, because counsel’s failure to file a certain motion can typically be rectified later
with a pro se filing.
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Agreement, Doc. 1075, at 5, 10; Presentence Investigation Report, Doc. 1152, at 30;
Sentencing Transcript, 1322-3, at 2.
5. 	Failure to cross-examine the Government’s witness at the preliminary hearing
Defendant fails to show prejudice from a failure to “cross-examin[e] the federal agent
in [the] preliminary” hearing. Doc. 1315, at 1; see Doc. 1207, at 3. Defendant omits not only
what questions Mr. Geary should have asked at the hearing, but also how the answers would
have impacted his pre-trial detention or the ultimate outcome of his case.
6. 	Failure to investigate the wiretap evidence
As with his suppression argument, Defendant was responsible for investigating the
wiretap evidence because he represented himself—Defendant cannot waive his right to
counsel and then complain when the result does not turn out in his favor. Doc. 1207, at 2–3;
Doc. 1315 at 1–2; see McKaskle, 465 U.S. at 177 n.8, 183; Dotson, 28 F. App’x at 802. Even
if he could show deficient performance during Mr. Geary’s formal representation, prejudice
is lacking because Defendant actually investigated and challenged the wiretap evidence, but
pled guilty before the Court ruled on his motions. See Defendant’s Motions, Docs. 843–44,
851–52, 866; Doc. 1301 (denying co-defendants’ motions to challenge the same wiretaps).
7. 	Failure to investigate affidavits
The Court rejects Defendant’s claim that Mr. Geary failed to investigate the criminal
complaint and wiretap affidavits for the same reasons as above regarding his alleged failure
to investigate wiretap evidence. Doc. 1207, at 2; Doc. 1315, at 2; see also Doc. 1322-1, at
2. Defendant has not shown deficient performance or prejudice.
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8. 	Failure to “explain stuff” or advise what motions to file
Defendant also fails to show ineffective assistance by Mr. Geary’s alleged failure to
“explain stuff” or advise what motions to file. Doc. 1207, at 2; Doc. 1315, at 2; see also Doc.
457. Mr. Geary maintains that during his 31 times conferring with Defendant, his attempts
to discuss evidence and procedure with Defendant were complicated by Defendant’s
insistence that his ideas and legal knowledge were better than Mr. Geary’s. Doc. 1322-1, at
1–2. Mr. Geary also “offered explanations throughout” review of the plea documents. Doc.
1322-1, at 1. Even assuming Defendant’s account of Mr. Geary’s inadequate representation
is true, Defendant fails to show prejudice.
9. 	Counsel did not “care about [his] well being” or “try[] to fight for him”
Defendant has repeatedly claimed that Mr. Geary did not “care about [his] well
being” or whether he ended up in prison, and Mr. Geary did not “try[] to fight for him.” Doc.
1207, at 3; Doc. 1315, at 2; see also Docs. 457, 479, 695, 1285. Beyond Defendant’s
threadbare allegations, the Court finds no evidence in the record for this contention. Mr.
Geary denied that he “told Mr. Davis he could not beat the government,” “crack[ed] jokes
at Mr. Davis’s expense,” demeaned Mr. Davis, or indicated that he “did not care if [Mr.
Davis] went to prison.” Doc. 1322-1, at 2. Counsel consulted often with Defendant and
offered to file various motions, but Defendant disagreed with his approach. See id. at 1–2;
Doc. 487. Defendant’s claim therefore appears grounded in the Court’s refusal to appoint
the attorney of his choosing. See Docs. 457, 479. But “the right to counsel does not guarantee
that a criminal defendant will be represented by a particular attorney.” United States v.
Marrero, 651 F.3d 453, 464 (6th Cir. 2011). Strickland dictates “a strong presumption that
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counsel’s conduct [fell] within the wide range of reasonable professional assistance.” 466
U.S. at 689. Defendant has not overcome this presumption, nor has he established counsel’s
material impact on his decision to plead guilty. Thus, Mr. Defendant’s ineffective assistance
of counsel claims lack merit.
III. 	Conclusion
The Court denies the Motion on the merits, meaning that Mr. Davis is entitled to a
Certificate of Appealability (“COA”) under Rule 11(a) of the Rules Governing Section 2255
Cases in U.S. District Courts only if he demonstrates “that jurists of reason could disagree
with the 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
v. Cockrell, 537 U.S. 322, 327 (2003) (citing 28 U.S.C. § 2253(c)(2)). Because Mr. Davis
has not established prejudice from Mr. Geary’s conduct to the outcome of his case, he is not
entitled to a COA. Mr. Davis may seek a certificate from the court of appeals under Federal
Rule of Appellate Procedure 22 if he wishes to appeal the Court’s ruling.
Defendant’s request for an extension to reply to the Government’s response to his
Motion (Doc. 1596) and his Motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
his sentence (Doc. 1207) are hereby DENIED.
IT IS SO ORDERED this 21 st day of June, 2018.
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