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United States v. Ellis

United States District Court, N.D. California

October 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
PURVIS LAMAR ELLIS, Defendant/Movant.

          ORDER DISMISSING § 2255 MOTION WITH LEAVE TO AMEND RE: DKT. NO. 411

          PHYLLIS J. HAMILTON, UNITED STATES DISTRICT JUDGE

         Before the court is the motion of defendant Purvis Lamar Ellis, appearing pro se, for an order under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. For the reasons set forth below, defendant's § 2255 motion is DISMISSED WITH LEAVE TO AMEND pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, 28 U.S.C. foll. § 2255.

         BACKGROUND

         Mr. Ellis is currently serving a sentence imposed by this court. On December 19, 2013, Mr. Ellis was charged in the following counts of an eight-count indictment: Racketeering Conspiracy in violation of 18 U.S.C. § 1962(d) (Count One); Attempted Murder in Aid of Racketeering in violation of 18 U.S.C. § 1959(a)(5) and 2 (Count Two); Assault with a Dangerous Weapon/Resulting in Serious Bodily Injury in Aid of Racketeering in violation of 18 U.S.C. § 1959(a)(3) and 2 (Count Three); Maiming in Aid of Racketeering in violation of 18 U.S.C. § 1959(a)(2) and 2 (Count Four); and Use/Possession/Brandish/Discharge of a Firearm in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A) and 2 (Count Five).

         Counsel for Mr. Ellis and his co-defendants jointly filed several pretrial motions, including motions for a bill of particulars; motion to dismiss, or, in the alternative, for a bill of particulars; motion for discovery and disclosure of FRE 404(b) evidence and disclosure of identity of confidential informant; motion for search and disclosure of electronic surveillance; motion to suppress pretrial and in-court identifications; motion to suppress evidence seized from search on residential curtilage; motion to suppress evidence from an apartment search and for a Franks hearing; motion to suppress evidence seized pursuant to arrest; and motion to suppress evidence seized from digital devices. After ruling on defendants' pretrial motions, the court referred the case to a United States Magistrate Judge for discovery disputes. Dkt. nos. 127, 143, 147. Defendants litigated several discovery matters before the Magistrate Judge, including disclosures about the use of cell-site simulators. See dkt. no. 215. Counsel for Mr. Ellis subsequently filed motions on behalf of all defendants to suppress evidence obtained from cell-site simulators and evidence seized during an apartment search, which the court denied by order entered August 24, 2017. Dkt. no. 337.

         On September 21, 2017, Mr. Ellis entered a guilty plea to Counts One, Two and Five pursuant to a written plea agreement under Rule 11(c)(1)(A) and 11(c)(1)(C) of the Federal Rules of Criminal Procedure. On February 28, 2018, the court sentenced Mr. Ellis to a total term of 240 months of imprisonment, consisting of 120 months on Count One and Two, to be served concurrently, and 120 months on Count Five to be served consecutively to all other counts; 5 years of supervised release; and a $300 special assessment. Counts Three and Four were dismissed on the government's motion.

         On August 19, 2019, Mr. Ellis filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside or correct the sentence, asserting a claim of ineffective assistance of counsel for failing to file a notice of appeal at petitioner's request. Dkt. no. 411. Because Mr. Ellis was convicted of Count Five for use/possession/brandish/discharge of a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A), the court notified the Office of the Federal Public Defender (“FPD”) of his pro se § 2255 motion pursuant to Miscellaneous Order 2019.08.05, in which the court presumptively appointed the FPD to represent any defendant previously determined to have been entitled to appointment of counsel to determine whether that defendant may qualify for relief under § 2255 in light of the Supreme Court's holding in United States v. Davis, 139 S.Ct. 2319 (2019), that the residual clause defining a “crime of violence” in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. On September 9, 2019, the FPD filed a notice of nonintervention stating that it will not seek appointment to represent Mr. Ellis on any Davis claim, without taking a position on the merits of any potential Davis claim. Dkt. no. 414. Having been so notified by the FPD, the court proceeds with a preliminary review of the § 2255 motion.

         DISCUSSION

         I. Legal Standard

         Under 28 U.S.C. § 2255, a federal prisoner may file a motion to vacate, set aside, or correct a sentence on the grounds that “the sentence 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). A prisoner filing a claim for federal habeas relief under 28 U.S.C. § 2255 is entitled to an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003).

         The Sixth Amendment right to counsel guarantees effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A successful claim of ineffective assistance has two components. First, a defendant must show that counsel's performance was deficient. Id. at 687. Deficient performance is representation that falls below an objective standard of reasonableness. Id. at 688. Second, having established deficient performance, the defendant must show he was prejudiced by counsel's errors; that is, there must be a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

         In order to demonstrate deficient performance, a habeas petitioner is required to show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687. The relevant query is not what defense counsel could have done, but rather whether the choices made by defense counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689.

         II. Initial Review of Section 2255 Motion

         The court conducts an initial review of this motion to determine whether it presents a cognizable claim for relief and requires a response by the government. A district court must summarily dismiss a § 2255 motion “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled ...


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