Davis v. USA

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BENNY E. DAVIS, 	)
)
Petitioner, 	)
)
vs. 	) 	Case No. 23-cv-1249-DWD
)
UNITED STATES OF AMERICA, 	)
)
Respondent. 	)
MEMORANDUM AND ORDER
DUGAN, District Judge:
On April 17, 2023, Petitioner Benny E. Davis filed a pro se Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1). 1 	The Motion survived
preliminary review under Rule 4 of the Federal Rules Governing §2255 cases. This matter
is now before the Court for consideration of the Motion. The Government filed its Motion
for 	Order 	Authorizing 	Criminal 	Defense 	Attorney 	to 	Disclose 	Attorney/Client
Communication (Doc. 4). The Court allowed Davis the opportunity to respond to that
motion by order of May 30, 2023. (Doc. 5) but he did not respond. The Court then granted
the Government’s Motion and authorized Davis’ defense attorney to disclose attorney-
client communications. (Doc. 11). On August 21, 2023, the Government filed its Response
(Doc. 11) to Davis’ Motion and attached the affidavit of Davis’ criminal defense attorney.
(Doc. 11-1). Davis did not file a Reply to the Government’s Response.
1 Petitioner’s Motion is dated March 2, 2023 (Doc. 1, p. 12), but the Court did not receive the filing until
April 17, 2023 (Doc. 1, p. 15).
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I. 	Background
In November 2020, Petitioner Davis was indicted with one count of possession of
a firearm by felon in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2), (d)(1). 	See United
States v. Davis, No. 20-CR-30160-DWD, at R. 1. 2 He entered a plea of guilty on November
9, 2021. 	Id. at R. 34. 	On March 7, 2022, the Court imposed a 120-month term of
imprisonment, to be followed by a 3-year term of supervised release. Id. at R. 48, R. 51.
Davis acknowledges he did not file a direct appeal (Doc. 1, p. 5).
Now, Davis presents four reasons why he believes his “sentence was imposed in
violation of the Constitution or laws of the United States.” See 28 U.S.C. § 2255. The first
relates to the performance of his court-appointed attorney, Federal Public Defender Kim
C. Freter. 	Davis argues that his court-appointed attorney was ineffective for allegedly
miscommunicating the terms of his plea agreement, stating that she promised he would
receive a 6-year term of imprisonment (Doc. 1, p. 4). Second, Davis argues that he had
no knowledge of the firearm at issue in this matter and lacked intent to possess the
firearm, such that he unknowingly and unintelligently entered his guilty plea (Doc. 1, p.
5). This argument appears to be based on precedent articulated in Rehaif v. United States,
204 L. Ed. 2d 594 (June 21, 2019), which predates both his indictment and sentencing in
this matter. 	Third, Petitioner argues that he failed to receive all due jail credits to be
awarded from the date of his arrest until his sentencing (Doc. 1, p. 7). And finally,
Petitioner argues that his guilty plea was involuntarily given because his “trial attorney
2 “Doc.” is a reference to the record in this matter. “R.” refers to the record in the underlying criminal
matter,
United States v. Davis, No. 20-CR-30160-DWD
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threatened [him] with more time if he instead upon Trial.” (Doc. 1, p. 8). 	Thus, he
maintains that his plea was coerced, and he only entered it to avoid a longer sentence.
II. Discussion
Under § 2255(a), the Court will grant the “extraordinary remedy” of vacating,
setting aside, or correcting Petitioner’s sentence only if he shows it “was imposed in
violation of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a);
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Notably, a hearing on such
matters is not necessary when “the files and records of the case conclusively show that
the prisoner is entitled to no relief.” United States v. Taylor, 605 F.Supp.3d 1079, 1081 (N.D.
Ill. Jun. 1, 2022). The undersigned, as the District Judge who presided over Petitioner’s
underlying criminal case, “is uniquely suited to determine if a hearing is necessary.” See
Taylor, 605 F. Supp. 3d at 1081 (quoting Rodriguez v. United States, 286 F.3d 972, 987 (7th
Cir. 2002)), as amended on denial of reh’g and reh’g en banc (7th Cir. 2002) (cleaned up).
As a substantive matter, the Sixth Amendment to the United States Constitution
grants criminal defendants the right to the effective assistance of counsel. Wyatt v. United
States, 574 F.3d 455, 457 (7th Cir. 2009) (citing Watson v. Anglin, 560 F.3d 687, 690 (7th Cir.
2009)). Under Strickland, the petitioner must prove: (1) that his attorney’s performance
fell below an objective standard of reasonableness; and (2) that the attorney’s deficient
performance prejudiced the defendant such that “there is a reasonable probability that,
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but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” McDowell v. Kingston, 497 F.3d 757, 761 (7th Cir. 2007). “Both components of
the test must be satisfied; ‘the lack of either is fatal.’” Clay v. United States, 311 F.Supp.3d
911, 918 (N.D. Ill. Apr. 19, 2018) (quoting Edmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir.
1996)).
During this inquiry, it is presumed that a petitioner’s counsel was “reasonably
proficient.” Galbraith v. United States, 313 F.3d 1001, 1008 (7th Cir. 2002); see also Wyatt v
United States, 574 F.3d 455, 458 (7th Cir. 2009) (“[A] movant must overcome the ‘strong
presumption 	that 	counsel’s 	conduct 	falls 	within 	the 	wide 	range 	of 	reasonable
professional assistance.’”); Clay, 311 F.Supp.3d at 919 (“The central question in this
analysis is not whether counsel’s conduct deviated from best practices or most common
custom, but instead, whether an attorney’s representation amounted to incompetence
under prevailing professional norms.”) (cleaned up). “The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). Put another way,
in order to establish counsel’s performance was deficient, the defendant must show errors
so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth
Amendment. 	Hartjes 	v. 	Endicott, 	456 	F.3d 	786, 	790 	(7th 	Cir. 	2006). 	“Counsel’s
representation need not be perfect, indeed not even good, to be constitutionally
adequate.” Anderson v. United States, 94 F.4th 564, 581 (7th Cir. 2024). Moreover, on the
question of prejudice, Petitioner must prove there was a reasonable probability that,
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absent counsel’s objectively unreasonable or deficient performance, he would have
insisted on proceeding to trial rather than plead guilty. See Wyatt, 574 F.3d at 458 (quoting
Hill v. Lockhart, 474 U.S. 52, 59 (1985)); Galbraith, 313 F.3d at 1008 (citing Tezak v. United
States, 256 F.3d 702, 712 (7th Cir. 2001); United States v. Jordan, 870 F.2d 1310, 1318 (7th Cir.
1989)); Rastafari v. Anderson, 278 F.3d 673, 688 (7th Cir. 2002).
A. The Timeliness of Davis’ Petition
Davis contends that his Motion is timely under 28 U.S.C. § 2255(f)(1) and (3).
Typically, a one-year limitation period applies to the filing of § 2255 Motions. 	See 28
U.S.C. § 2255(f). This period runs from the latest of (1) the date on which the judgment
of conviction becomes final, (2) the date on which the impediment to making a motion
created by governmental action in violation of the Constitution or laws of the United
states is removed, (3) the date on which the right asserted was initially recognized by the
Supreme Court, or (4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due diligence. 28 U.S.C. §
2255(f)(1)-(4).
Petitioner was sentenced on March 7, 2022. 	United States v. Davis, No. 20-CR-
30160-DWD, at Docs. 48, 51. Although Petitioner’s signed Motion is dated March 2, 2023
(Doc. 1, p. 5), the Clerk’s Office did not receive his § 2255 Motion until April 17, 2023 (Doc.
1, p. 15). 	Rule 3(d) of the Federal Rules Governing § 2255 Cases in the United States
District Courts provides that:
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A paper filed by an inmate confined in an institution is timely if deposited
in the institution’s internal mailing system on or before the last day for
filing. If an institution has a system designed for legal mail, the inmate must
use that system to receive the benefit of this rule. Timely filing may be
shown by a declaration in compliance with 28 U.S.C. § 1746 or by a
notarized statement, either of which must set forth the date of deposit and
state that first-class postage has been prepaid.
Here, 	Petitioner 	signed 	his 	Motion 	under 	penalty 	of 	perjury 	in 	apparent
compliance with 28 U.S.C. § 1746 (Doc. 1, p. 12). He further declared that he placed the
Motion in the prison mailing system on March 2, 2023 (Id.). 	Thus, it is not plainly
apparent that his Motion is untimely under 28 U.S.C. § 2255(f).
B. Counsel’s Promise to Davis That He Would Receive a Six-Year Sentence.
Davis alleges that his attorney, Kim Freter, promised him that he would receive
only a six-year sentence. Attorney Freter denies this to be the case. But apart from her
denial is the record in the criminal matter which clearly undermines Davis’ assertions.
First, the Plea Agreement. Davis agreed with the Government that §922(g)(1)
carries a sentence of imprisonment of up to 10 years. (R. 35, pg. 1). The Plea Agreement
provides that “the Court may impose a sentence different than what is described in this
Plea Agreement – anywhere between the minimum sentence (if any) up to the statutory
maximum sentence.” Id at 3. And, significantly, the parties at the time of the plea were
unable to agree on the sentencing guideline calculations and each submitted as part of
the agreement their respective position on those calculations. Id. The Government
suggested that Davis had an offense level of 30 and a Criminal History Category of VI,
resulting in an imprisonment range of 168-210 months. Davis took the position that the
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imprisonment range was 130-162 months but limited to the statutory maximum of 120
months.
Second, the change of plea hearing. The Court began the colloquy by advising
Davis that if he had any questions that he wants to ask his attorney during the hearing,
he would be given the opportunity to speak with attorney Freter. (R. 62, pg. 4). Later, the
Court again reminded Davis that if he did not understand an aspect of the hearing, he
could let the Court know. Id at 9. 	And, before taking the plea, the Court asked Davis if
he understood everything asked of him that day and he confirmed that he did. Id. at 18.
During the plea hearing the Court admonished Davis that his plea of guilty, if
given, could not be “taken back” or retracted. The Court went on to advise Davis that
the Court is not party to the Plea Agreement, that the Court might not agree with the
parties as to the appropriate sentence, and that the Court is free to vary from the sentence
suggested by the parties. Id at 17-18.
Finally, Davis confirmed with the Court that he signed the Plea Agreement as his
free and voluntary will and without threat, and that no one promised or guaranteed him
anything in exchange for him signing it. Id at 10
Davis’ argument that his attorney promised him that he would receive only 6 years
as a sentence belies the information, warnings and admonishments conveyed to him in
the Plea Agreement and during the plea hearing. It is also flies in the face of Davis’
affirmations that he was not promised anything to have him plead guilty.
“[T}the representations of the defendant [at a plea hearing] as well as any findings
made by the judge accepting the plea, constitute a formidable barrier in any subsequent
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collateral proceeding.” Key v. U.S., 806 F.2d 133, 136 (7 th Cir. 1986) citing Thompson v
Wainwright, 787 F.2d 1447, 1460 (11th . Cir.). A petitioner's “declarations in open court
carry a strong presumption of verity.” Id. Here, that barrier cannot be scaled without
finding that Davis lied under oath but is now telling the truth. But, “[j]udges need not let
litigants contradict themselves so readily; a motion that can succeed only if the defendant
committed perjury at the plea proceedings may be rejected out of hand unless the
defendant has a compelling explanation for the contradiction.” U.S. v Peterson, 414 F.3d
825, 827; See also 	Bethel v. U.S., 458 F.3d 711, 719 (7 th Cir. 2006). Davis offers no
explanation, compelling or otherwise, for the contradiction between what he told the
Court at the plea hearing and what he represents in his Petition. 	The Court observed
nothing during the plea hearing that suggested or even hinted that his expectations for a
six-year sentence would be realized despite the Court’s admonitions to the contrary.
Accordingly, Davis’ argument that he is entitled to § 2255 relief because he was promised
by Attorney Freter a sentence of six years must fail.
C. Davis’ Lack of Knowledge of Prohibition on Possession of Firearms
Davis next claims that he was unaware of the prohibition against possessing
firearms and ammunition, lacked the intent to possess the firearms and, therefore, did
not knowingly and intelligently enter his plea. (Doc, 1, pg. 5). The Government, however,
asserts Davis’ claim falls within the collateral attack waiver provision contained in the
Plea Agreement.
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A defendant may certainly waive the right to collaterally attack a conviction or
sentence. Dowell v. U.S., 694 F.3d 898, 901 (7 th Cir. 2012). Such voluntary waivers must be
enforced except in very limited instances such as “when the sentence exceeds the
statutory maximum, when the plea or court relies on a constitutionally impermissible
factor like race, or when counsel is ineffective in the negotiation of the plea agreement.”
Id. at 902, citing Keller v. United States, 657 F.3d 675, 681 (7th Cir.2011). Davis does not
contend that any exception applies here. Nevertheless, enforcement of plea agreement is
governed by the parties’ understanding of the scope of the agreement as evidenced by
the words and language they used. The Government points to the Davis’ Plea Agreement
and its waiver provision where it provides in pertinent part:
5. 	. . . Defendant knowingly and voluntarily waives the right to seek
modification of, or contest any aspect of, the conviction or sentence in any
type of proceeding.
(Doc. 35, pg. 8) (emphasis in original).
While the scope of the waiver provision in the Plea Agreement is broad and
encompassing, it is specific in its reference to Davis’ waiver of any right to contest any
aspect of the conviction. 	The thrust of Ground Two of Davis’ Petition is that he was
unaware of the prohibition against his possession of firearms. (Doc. 1, pg. 5). This is a
specific attack on the conviction that occurred as a result of his guilty plea because his
knowledge of his prior felony conviction is an essential element of the indictment.
Accordingly, the basis for the attack is necessarily within the scope of the Plea Agreement.
As such, Ground Two of Davis’ Petition should also fail. But, even if his collateral attack
on the conviction is not within the scope of his Plea Agreement, Ground Two still fails.
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Davis believes the case of Rehaif is his salvation because he did not know that there
was a prohibition on his possessing firearms. Davis misunderstands Rehaif. 	Rehaif
teaches that the Government must prove both that the defendant knew he possessed a
firearm and that he knew he belonged to the relevant category of persons barred from
possessing a firearm, such as a person who has been convicted of a crime punishable by
a term of imprisonment of more than one year. Rehaif v. United States, 139 S.Ct. 2191, 2195,
588 U.S. 225, 229 (U.S., 2019). Here, Davis’ Plea Agreement lists “Essential Elements” of
the offense, including that he knowingly possessed the firearm as charged and that he
knew he had been convicted of a crime punishable by a term of imprisonment exceeding
one year. (R. 35, pg. 1). The Court in its change of plea colloquy reviewed each allegation
contained in the indictment with Davis (R. 62, pg. 5) to which he then pled guilty. Id at
19. The Court reviewed the Stipulation of Facts signed by Davis which indicated that
Davis knowingly possessed each of the five guns and that he “knew of his status that
prohibited him from possessing firearms and ammunition at the time he possessed the
firearms on July 22, 2020.” R. 37, at 2-3. Observing no indication of a lack of knowledge
of the essential elements of the offense, the Court made the specific finding Davis’ guilty
plea was “knowingly and voluntarily made, not the result of duress, coercion, force
undue influence or inappropriate promises”. Id at 20
There is nothing in the record to suggest Davis was ignorant of his status as a
convicted felon, or that his status as a felon made his possession of a firearm unlawful.
As such, Ground Two of his Petition fails.
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D. Davis’ Claim That He Did Not Receive All Appropriate Jail Credits
Davis next claims that he did not receive jail credits from the time of his arrest to
the time of sentencing. (Doc. 1, pg. 7) As the Government correctly points out, “[r]equests
for sentence credit, or for recalculation of time yet to serve, [do] not come under §2255.”
Romandine v. U.S., 206 F.3d 731, 736 (7 th Cir. 2000) Rather, “it is the Attorney General
acting through [Bureau of Prisons] and not the sentencing Court, that computes the credit
due under §3585(b). United States v. Walker, 917 F.3d 989, 993 (7 th Cir., 2019) The relief
Davis seeks must be made initially through the Bureau’s administrative remedies. Id at
994. Accordingly, Davis’ claim for calculation of jail credits fails.
E. Davis’ Allegation that Attorney Freter’s Coerced Davis to Plead Guilty
Davis claims that he was coerced to plead guilty by his attorney’s threats of a
longer sentence if insisted on a trial. (Doc. 1, pg. 8). This claim flies in the face of the plea
hearing colloquy and the sworn statements of Davis.
During the plea hearing, the Court inquired of Davis regarding his signature and
the Plea Agreement. Specifically, it asked whether Davis signed the Plea Agreement “as
your free and voluntary will” to which he responded “Yes, sir”. He was also asked
whether anyone promised, guaranteed or threatened him to secure his signature on the
Plea Agreement, to which Davis responded “No, sir”. (R. 62, pg. 10)
Similarly, the Court inquired of Davis regarding his signature on the Stipulation
of Facts:
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The Court: 	I have also been provided with a Stipulation of Facts consisting
of three pages, and on the third page there’s again a signature
line for Benny Davis. Is that your signature, sir?
Davis: 	Yes, sir.
The Court: 	You signed that as your free and voluntary will?
Davis: 	Yes, sir.
The Court: 	No one forced you in any way to sign that?
Davis: 	No, sir.
The Court: 	No one promised you anything to get you to sign that?
Davis: 	No, sir.
The Court: 	No one threatened you to get you to sign that?
Davis: 	No, sir.
(R. 62, pg. 11)
It 	is 	unclear 	when 	or 	how 	he 	was 	threatened 	with 	a 	longer 	sentence 	of
imprisonment. He does not offer a factual basis to support his allegation that such a threat
occurred 	or 	that 	it 	would 	have 	influenced 	his 	decision. 	And, 	despite 	adequate
opportunity to disclose to the Court that he is operating under some sort of coercion or
threats of lengthier imprisonment, he chose not to bring it to the Court’s attention. Just as
noted in section II.B. above, “[T}the representations of the defendant [at a plea hearing]
as well as any findings made by the judge accepting the plea, constitute a formidable
barrier in any subsequent collateral proceeding.” Key v. U.S., 806 F.2d 133, 136 (7th Cir.
1986) citing Thompson v Wainwright, 787 F.2d 1447, 1460 (11th. Cir.). A petitioner's
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“declarations in open court carry a strong presumption of verity.” Id. Davis’ new
allegations of threats and coercion do not overcome that presumption now.
III. 	CONCLUSION
For the reasons explained above, the Court finds that Davis is entitled to no relief
on his Petition. Accordingly, Benny Davis’ request to vacate, set aside, or correct his
sentence under § 2255 is DENIED without a hearing. See United States v. Taylor, 605
F.Supp.3d at 1081. The case is DISMISSED with prejudice. The Clerk of the Court is
DIRECTED to enter judgment accordingly.
Rule 11(a) of the Rules Governing § 2255 Cases in the U.S. District Courts requires
the issuance or denial of a certificate of appealability when a final order is entered against
an applicant. Such a certificate of appealability may be issued “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Petitioner “must have a constitutional claim (or an underlying procedural argument on
which a constitutional claim depends), and he must ‘demonstrate that reasonable jurists
would find the district court’s assessment of his constitutional claims debatable or
wrong.’” United States v. Fleming, 676 F.3d 621, 625 (7th Cir. 2012) (quoting Tennard v.
Dretke, 542 U.S. 274, 281 (2004); citing Arredondo v. Huibregtse, 542 F.3d 1155, 1165 (7th Cir.
2008)); accord Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the Court FINDS the
alleged grounds for relief lack merit, and reasonable jurists would not find that
conclusion debatable or wrong. Since Petitioner has not made a “substantial showing of
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the denial of a constitutional right,” the Court DECLINES to issue a certificate of
appealability.
SO ORDERED.
Dated: January 28, 2026 	/s/ David W. Dugan
______________________________
DAVID W. DUGAN
United States District Judge
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