Davis v. United States of America
| Mykai Davis |
| United States of America |
| 7:2018cv01308 |
| February 14, 2018 |
| US District Court for the Southern District of New York |
| White Plains Office |
| Westchester |
| Vincent L. Briccetti |
| Motions to Vacate Sentence |
| 28 U.S.C. ยง 2255 |
| None |
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Filing
66
ORDER granting 65 Motion for Extension of Time to File. Accordingly, the motion for an extension of time to file the notice of appeal is GRANTED. The Clerk is instructed to accept for filing the Notice of Appeal attached to petitioner's moti on as of October 21, 2020, which is the date petitioner's motion was filed in this Court. Chambers will mail a copy of this Order to petitioner at the following address: Mykai Davis, Reg. No. 71995-054. SO ORDERED. (Signed by Judge Vincent L. Briccetti on 10/23/2020) Copies Mailed By Chambers. (va)
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Filing
64
CLERK'S JUDGMENT re: 63 Order. in favor of United States of America against Mykai Davis. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Opinion and Order dated July 30, 2019, and Order dated J uly 20, 2020, Mykai Davis's motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence is granted in part and denied in part; to the extent the motion is based on a claim of ineffective assistance of counsel or alleged defec ts in Davis's guilty plea and sentencing proceedings, the motion is denied; therefore, his conviction for conspiring to participate in the affairs of a racketeering enterprise (Count One) must stand; however, as the government acknowledges, Davi s's firearms conviction under Section 924(c) (count Two) must be vacated in light of United States v. Davis 139 S. Ct. 2319 (2019). That being the case, although there is no basis to vacate Davis's racketeering conspiracy conviction, his se ntence must be vacated and he will be resentenced on the racketeering conspiracy count; the Court will not enter a judgment in case No. 18 CV 1308 (VB) at this time after Davis is resentenced, the Court will enter an amended judgment in the criminal case and a final judgment in the civil case; Petitioner's Section 2255 motion was denied in all other respects; on July 10, 2020, petitioner was resentenced in the criminal case; an amended judgment, dated July 10, 2020, was entered in the crim inal case on July 13, 2020; (14 CR 768-05 Doc. #469); accordingly, because petitioner has been resentenced and an amended judgment has been entered in the criminal case, final judgment is entered in 18 CV 1308 and the case is closed. As petitioner h as not made a substantial showing of the denial of a constitutional right," a certificate of appealability will not issue; 28 U.S.C. § 2253(c)(2); the Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would n ot be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. (Signed by Clerk of Court Ruby Krajick on 07/21/2020) (Attachments: # 1 Notice of Right to Appeal) (dt) Transmission to Docket Assistant Clerk for processing.
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Filing
63
ORDER: Accordingly, because petitioner has been re-sentenced and an amended judgment has been entered in the criminal case, is it HEREBY ORDERED: 1. The Clerk is instructed to (i) enter a final judgment in the civil case (18 CV 1308) in accordance w ith the Court's July 30, 2019, Opinion and Order (see 18 CV 1308 Doc. #59 at 19), and (ii) close case no. 18 CV 1308. 2. The Clerk is further instructed to update petitioners address on the civil case docket (18 CV 1308) to the following addr ess, as petitioner is no longer incarcerated at USP Lewisburg: Mykai Davis, Reg. No. 71995-054, MCC New York, Metropolitan Correctional Center, 150 Park Row, New York, NY 10007. As petitioner has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2). The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Chambers will mail a copy of this Order to petitioner at the above address. SO ORDERED. (Signed by Judge Vincent L. Briccetti on 7/20/2020) (mml) Transmission to Orders and Judgments Clerk for processing.
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Filing
59
OPINION AND ORDER: Mykai Davis's motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence is GRANTED IN PART and DENIED IN PART. To the extent the motion is based on a claim of ineffective assistance of counsel or alleged defects in Davis's guilty plea and sentencing proceedings, the motion is DENIED. Therefore, his conviction for conspiring to participate in the affairs of a racketeering enterprise (Count One) must stand. However, as the government acknowled ges, Davis's firearms conviction under Section 924(c) (Count Two) must be vacated in light of United States v. Davis 139 S. Ct. 2319 (2019). That being the case, although there is no basis to vacate Davis's racketeering conspiracy convictio n, his sentence must be vacated and he will be resentenced on the racketeering conspiracy count. The Court schedules a hearing on October 4, 2019, at 11:30 a.m., at which the government will consent to a vacatur of Davis's conviction on Count T wo, and Davis will be resentenced on Count One. The Court directs the Probation Department to prepare a revised and updated Presentence Report. The Court re-appoints Daniel A. Hochheiser, Esq., pursuant to the Criminal Justice Act, as Davis's co unsel for purpose of resentencing. The Court will not enter a judgment in Case No. 18 CV 1308 (VB) at this time. After Davis is resentenced, the Court will enter an amended judgment in the criminal case and a final judgment in the civil case. As pe titioner has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appe al from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Chambers will mail a copy of this Opinion and Order to petitioner at the address on the docket in Case No. 18 CV 1308 (VB). SO ORDERED. (Status Conference set for 10/4/2019 at 11:30 AM before Judge Vincent L. Briccetti.) (Signed by Judge Vincent L. Briccetti on 7/30/2019) Copies Mailed By Chambers. (mml)
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| Defendant: United States of America | |
| Represented By: | Scott Andrew Hartman |
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