Saturday, May 27, 2017

Case o' The Week: Ninth Dodges Pot, Shot - Davies and Plea Agreement Collateral-Attack Waivers

  A non-cap habe raises execution issues, in a Section 2241 opinion.
  Davies v. Benov, 2017 WL 2125897(9th Cir. May 17, 2017), decision available here.

Players: Decision by Judge Gould, joined by Judges Wardlaw and Callahan.

Facts: Davies owned medical marijuana dispensaries in California, which he contended complies with state law. Id. at *1. He was charged federally in the ED Cal, and plead guilty to a five year term. Id. The plea agreement had a waiver provision that read, “Regardless of the sentence he receives, the defendant also gives up any right he may have to bring a postappeal attack on his conviction or his sentence. He specifically agrees not to file a motion under 28 U.S.C. § 2255 or § 2241 attacking his conviction or sentence.” Id. A year into Davies’ term, Congress passed an appropriation rider. That rider prohibited the use of federal funds to prosecute offenses otherwise legal under state medical marijuana laws. Id. at *2. Davies filed a Section 2241 habeas petition, arguing that BOP’s use of federal funds to incarcerate him violated this appropriations rider. Id. The magistrate judge denied the petition, holding that the plea agreement waiver barred the challenge. Id.

Issue(s): “The sole question presented here is whether the plea agreement’s waiver provision clearly bars Davies from bringing his § 2241 petition, which challenges his continued incarceration based on the appropriations rider. “ Id. at *2.

Held:The waiver language included in Davies's plea agreement is broad and unambiguous, and we hold that it precludes Davies’s petition on the grounds he raised.” Id. at *2.

Of Note: Davies made an interesting, albeit unsuccessful, argument. The waiver language in this plea agreement prohibited an appeal of “any aspect of the sentence imposed in this case.” Id. at *3 (emphasis added). By contrast, the collateral-attack waiver provision did not have that “any aspect of his sentence” clause. Id.
  Davies argued that the collateral-attack waiver was less broad than the appellate waiver. It’s an – appealing – argument, given the old contra proferentem rule we learned in law school (a rule acknowledged by Judge Gould, who concedes that because the government drafted the agreement, “ambiguities are construed in favor of the defendant.” Id. at *2 (citing United States v. Charles, 581 F.3d 927, 931 (9th Cir. 2009).
  Unfortunately, the Ninth holds the waiver language is not ambiguous: “Despite differences in the language of the direct-appeal and collateral-attack waiver provisions, the collateral attack waiver provision states the scope of the waiver: Davies gives up any right to bring a post-appeal attack on his conviction or sentence. The scope of the collateral-attack waiver provision clearly covers his present challenge. Limitations on any right to attack his sentence encompasses challenges to the execution and conditions of his sentence, as his challenge is styled here, as well as to the legality of his sentence.” Id. at *3.

How to Use: What about inmates serving federal prison sentences for (medical) marijuana offenses, who pleaded open, or who were convicted after trial? Unlike Davies, they are unencumbered by these collateral-attack waivers.
  Judge Gould expressly reserves the question if the BOP can use federal funds to incarcerate these folks: “we need not reach and save for another day the issue of whether the expenditure of federal funds to incarcerate individuals who fully complied with state medical marijuana laws violates the appropriations rider.” Id. at *3. 
  Would make for an interesting § 2241 petition, for these inmates in federal prison.
For Further Reading: With any luck, Johnson warriors will be freeing another tranche of over-serving petitioners after a Dimaya victory next Tuesday. SCOTUS’s next opinion drop is May 30 at 9:30 EDT: opinions will be live-blogged here

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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