United States District Court, E.D. Tennessee, Knoxville
ORDER DENYING POST-JUDGMENT MOTIONS
the Court are Petitioner Darryl Lamont Davis' motions:
(1) to alter or amend the judgment denying his motion to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255 [Doc. 4]; (2) to compel and subpoena evidence [Doc. 5];
(3) to indict various Government officials [Doc. 15]; and (4)
to appoint counsel to assist him with his post-judgment
motions [Docs. 8, 16]. The United States has filed a response
in opposition to Davis' motion to alter the judgment
[Doc. 14]. Upon review of the pleadings and the record in
this cause, along with the applicable law, the Court finds
Davis' motions should be denied.
RELEVANT FACTUAL BACKGROUND
mid-2007, Davis, a convicted felon, robbed a bank and two
convenience stores in Knoxville, Tennessee, while brandishing
a semi-automatic pistol [Doc. 26 in No. 3:07-CR-66; Doc. 136
p. 7-8, 16-18, 48-52, 98-99 in No. 3:07-CR-66]. While fleeing
after the crimes, Davis discarded two hats and a ski mask,
and DNA was recovered from the hats [Doc. 136 p. 10-11,
16-17, 32-35, 52-53, 64-66 in No. 3:07-CR-66; Doc. 137 p. 9,
104-10 in No. 3:07-CR-66].
Davis' arrest, his DNA was twice obtained via buccal
swabs - first pursuant to a federal grand jury subpoena, and
then after his indictment, pursuant to a federal search
warrant - and both of those DNA samples matched the DNA
recovered from the hats [See Doc. 104 p. 2 n.1 in
No. 3:07-CR-66; Doc. 137 p. 104-10 in No. 3:07-CR-66; Doc.
160 in No. 3:07-CR-66]. In the meantime, Davis had persuaded
his girlfriend to move the pistol used in the robberies, but
federal agents later found the weapon and recovered it [Doc.
137 p. 46-53, 63-66 in No. 3:07-CR-66].
2009, a jury convicted Davis of bank robbery, two counts of
Hobbs Act robbery, three counts of brandishing a firearm in
furtherance of crimes of violence, possessing a firearm as a
felon, and tampering with evidence with the intent to prevent
its availability for use as evidence against him, all in
violation of federal law [Doc. 100 in No. 3:07-CR-66]. Davis
was sentenced to an aggregate term of 762 months'
imprisonment, consisting of the consecutive statutorily
mandated minimum sentences for the use-of-firearms
convictions during a crime of violence (hereinafter
“§ 924(c) convictions”), and 78 months'
imprisonment for the other five offenses [Doc. 125 in No.
3:07-CR-66]. The Sixth Circuit affirmed Davis'
convictions and sentences on appeal and denied his subsequent
petition for rehearing, after which the Supreme Court denied
certiorari [Docs. 149, 150, 153 in No. 3:07-CR-66].
Davis filed a timely § 2255 motion containing claims
concerning the buccal swabs taken from him for DNA analysis
[Doc. 154 in No. 3:07-CR-66]. Specifically, Davis alleged
that his attorney rendered ineffective assistance for (1) not
moving to suppress all evidence on the ground that the first
DNA swab was illegally obtained; (2) not presenting certain
evidence and arguments regarding the swab during trial; and
(3) not alleging government misconduct and “malicious
prosecution” on appeal [Id. at 4-8]. He also
alleged that the government prosecuted him in “bad
faith” and suppressed from trial evidence of the first
swab, which was allegedly favorable to the defense
[Id. at 8]. The Government responded in opposition
to the motion [Doc. 160 in No. 3:07-CR-66]. Davis submitted a
reply to the Government's response [Doc. 163 in No.
3:07-CR-66]. On July 27, 2017, this Court denied Davis'
motion, determining that he was not entitled to § 2255
relief and finding that no evidentiary hearing was necessary
[Docs. 175, 176 in No. 3:07-CR-66].
about August 25, 2017, Davis filed a motion to alter or amend
judgment under Federal Rule of Civil Procedure 59(e) [Doc.
4]. In his Rule 59 motion, Davis alleges that the Court erred
by denying his § 2255 motion, but he also seeks to
litigate several new issues for the first time -
specifically, whether his § 924(c) convictions were
invalidated by Johnson v. United States, 135 S.Ct.
2551 (2015) and Welch v. United States, 136 S.Ct.
1257 (2016), and whether his sentence for the
“underlying offenses” was invalidated by Dean
v. United States, 137 S.Ct. 1170 (2017). Davis also
filed concomitant motions to compel evidence, to indict
government officials, and to appoint counsel [Docs. 5, 8, 15,
16]. In the meantime, Davis also filed a notice of appeal
from the denial of his § 2255 motion, which is being
held in abeyance pending resolution of Davis' Rule 59
motion [Doc. 10; see also Docs. 186, 191 in No.
MOTION TO ALTER OR AMEND
59(e) of the Federal Rules of Civil Procedure allows a
petitioner to move to alter or amend a judgment within
twenty-eight days after entry of the judgment. See
Fed. R. Civ. P. 59(e). Such a motion may only be granted
“to correct a clear error of law; to account for newly
discovered evidence or an intervening change in the
controlling law; or to otherwise prevent manifest
injustice.” Volunteer Energy Servs., Inc. v. Option
Energy, LLC, 579 Fed.Appx. 319, 330 (6th Cir. 2014)
(quoting Doran v. Comm'r of Soc. Sec., 467
Fed.Appx. 446, 448 (6th Cir. 2012)). A Rule 59 motion may not
be used to relitigate issues out of dissatisfaction with the
Court's initial ruling, nor may it be used to offer a
new, independent basis for a criminal defendant to challenge
his sentence. See, e.g., Howard v. United States,
533 F.3d 472, 475 (6th Cir. 2008) (explaining that Rule 59(e)
“allows for reconsideration; it does not permit parties
to effectively ‘reargue a case'”); see
also Nat'l Ecological Found. v. Alexander, 496 F.3d
466, 477 (6th Cir. 2007) (noting “Rule 59(e) motions
‘are aimed at reconsideration, not initial
consideration'”) (citation omitted).
Davis' challenges to the Court's conclusions
alleges four discrete errors in this Court's denial of
his § 2255 motion. In his first two claims of error, he
contests the accuracy of this Court's statements that
“the Supreme Court . . . has not addressed whether DNA
samples obtained from grand jury subpoenas are permissible,
” and that “analysis of the first swab had not
been completed before the Government obtained the warrant and
the second swab” [Doc. 4 p. 3]. Next, he faults the
Court for not conducting an evidentiary hearing and for not
requiring the Government to produce the grand jury subpoena
for the initial buccal swab [Id. at 4].
Davis has not shown any error in the Court's statement
that “the Supreme Court. . . has not addressed whether
DNA samples obtained from grand jury subpoenas are
permissible, ” as he has failed to identify a Supreme
Court case involving the factual scenario addressed by the
Court. [Doc. 175 p. 5 in No. 3:07-CR-66]. Rather, he only
argues that the Fourth Amendment demands that evidence from
warrantless searches not falling under an exception to the
warrant requirement usually be excluded [Doc. 4 p. 11-13].
His arguments have no bearing on the question posed in this
case, however. Because the initial buccal swab was not
precluded by controlling precedent at the time, suppression
of the evidence would not have been required even if the swab
had been illegally obtained. See United States v.
Master, 614 F.3d 236, 242 (6th Cir. 2010) (finding
“the decision to exclude evidence is divorced from
whether a Fourth Amendment violation occurred”).
Accordingly, this claim fails to warrant reconsideration of
the Court's judgment.
Davis disputes the Court's factual finding that
“analysis of the first swab had not been completed
before the Government obtained the warrant and second
swab” [Doc. 4 p. 3]. According to Davis, this
conclusion was erroneous, because an FBI report indicated
that “preliminary results” from the initial
buccal swab were “back from the laboratory” at
the time the second buccal swab was taken from him [Doc. 4 p.
13-14]. However, the report's use of
“preliminary” confirms the Court's conclusion
that analysis was not yet complete. Indeed, the FBI
laboratory did not issue a report regarding analysis of the
first swab until July 31, 2017, nine days after the second
buccal swab had been obtained from Davis [See, e.g.,
Doc. 15 p. 8-11]. Therefore, this claim offers no basis for
relief under Rule 59(e).
Davis has not demonstrated that an evidentiary hearing was
necessary in this case, and therefore, he cannot prove that
the Court erred by not conducting one. The claims in his
§ 2255 motion do not involve disputed facts; they
involve disputes about the legal significance of undisputed
facts. See, e.g., Valentine v. United States, 488
F.3d 325, 333 (6th Cir. 2007) (holding hearing required to
resolve factual dispute). Moreover, the Court found that the
record conclusively showed that Davis was not entitled to
relief, and therefore, no hearing was necessary. See
Arredondo v. United States, 178 F.3d 778, 782 ...