The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
In January 2005, Davis and three others agreed to rob a marijuana dealer. Davis and two of his cohorts gained entrance to the dealer's apartment and robbed him of drugs and money. Apparently dissatisfied with the proceeds of the robbery, Davis then opened fire with an automatic weapon, killing the dealer, wounding the woman with whom the dealer was living, and permanently crippling her son. He was convicted by a jury of conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 and carrying a firearm during and in relation to a crime of violence and possessing a firearm in furtherance of a crime of violence in violation fo 18 U.S.C. § 924(c)(1)(A) and sentenced principally to concurrent terms of imprisonment of 20 years and life, both to run consecutively to a prior, unexpired term of imprisonment.
Davis appealed his conviction to the Second Circuit. His appointed counsel argued principally that the evidence at trial had been insufficient to prove that the robbery had any effect on interstate commerce and therefore failed to satisfy the jurisdictional element of the Hobbs Act. He contended also that the Court of Appeals should reject its prior use of the de minimis standard for evaluating the effects of interstate commerce within the meaning of the Hobbs Act and instead adopt a "substantial effect" test under which, he contended, Davis' conviction should be set aside. Counsel also obtained leave of the Circuit for Davis to file a supplemental pro se brief, noting that Davis wished to argue also that (1) his indictment had been constructively amended, (2) trial counsel had been ineffective, (3) Davis' Speedy Trial Act rights had been violated, (4) the trial court engaged in judicial misconduct, (5) the prosecutor engaged in misconduct, and (6) Davis' sentence was illegal. Davis, so far as the Court of Appeals' docket sheet reveals, never filed such a brief, and his conviction was affirmed. United States v. Davis, No. 08-3604-cr, 2009 WL 1459543 (2d Cir. May 27, 2009).
Now before the Court is Davis' motion to vacate, set aside, or correct the judgment of conviction pursuant to 28 U.S.C. § 2255 as well as his amended petition.
Davis' motion and largely redundant, amended motion collectively assert the follow grounds for relief, giving them the charitable reading appropriate for pro se filings:
1. Trial counsel was ineffective in that he failed to investigate possible witnesses or follow Davis' instructions. Motion ¶ 12A, Amended Motion ("AM") at 13-14.
2. Davis was denied the right to represent himself under Faretta v. United States, 422 U.S. 805 (1975). Motion ¶ 12A.
3. The indictment was constructively amended, an apparent reference to Davis' claim that marijuana is not a narcotic. Id. ¶ 12B, AM at 4-6.
4. The evidence was insufficient to satisfy the interstate commerce requirement of the Hobbs Act. Motion ¶ 12B, AM 4, 8-9.
5. Davis' Speedy Trial Act right was violated by Judge Keenan, referring to docket items 26, 31 and 39. Motion ¶ 12C.
6. The trial court and appointed trial counsel improperly prevented Davis from calling an expert witness to testify that marijuana is not a narcotic. AM at 8.
7. Davis was improperly denied the right to confront his accusers, specifically Detectives Killen and Urbina. Motion ¶12D.
8. Davis was denied access to the courts by the Bureau of Prisons moving him from one facility to another and losing or depriving him of his legal ...