UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-80914-CIV-JIC

XAVIER DAVIS,

Movant,

v.

THE UNITES STATES OF AMERICA,

Respondent.

__________________________________/

ORDER GRANTING IN PART MOTION TO VACATE

THIS CAUSE is before the Court upon the Report and Recommendation of 

Magistrate Judge [DE 35] (“Report”) submitted by United States Magistrate Judge 

William Matthewman regarding Movant’s Final Amended 2255 Petition [DE 11] 

(“Motion”). The Court has reviewed the Motion, the Report, and the record in this case 

and is otherwise advised in the premises. No objections to the Report have been filed 

and the time in which to do so has expired.

On March 5, 2019, pursuant to a plea agreement, Movant entered a plea of guilty 

to five counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Counts 1, 4, 8,

10, and 12), and one count of possession of a firearm in furtherance of a crime of 

violence, in violation of 18 U.S.C. § 924(c) (Count 13). CR-DE 36, 38.1 He was 

sentenced to concurrent 66-month terms of imprisonment on Counts 1, 4, 8, 10, and 12, 

and a consecutive 84-month term of imprisonment on Count 13; all to be followed by 

concurrent 3-year terms of supervised release on all Counts. CR-DE 57. He was also 

1 All reference to the docket in Movant’s criminal case, 18-80195-CR-JIC, shall be denoted by “CR-DE.”

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sentenced to repay $11,132.03 in restitution. On June 9, 2020, he submitted a Motion 

Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in 

Federal Custody. CR-DE 58, DE 1. He amended the Motion on July 17, 2020, in 

compliance with the order of Magistrate Judge Lisette M. Reid. DE 11. 

In the Motion, Movant asserts four grounds for vacating his sentence: (1) his 

counsel provided ineffective assistance by failing to file a direct appeal, (2) the Hobbs 

Act robbery statute is unconstitutionally vague, (3) his counsel provided ineffective 

assistance by failing to challenge the Government’s search warrant or impeach the 

Government’s expert witness, and (4) his counsel provided ineffective assistance by not 

pursuing a mental health evaluation. In accordance with Eleventh Circuit jurisprudence, 

the Court referred the first ground alone to Magistrate Judge William Matthewman for an 

evidentiary hearing, notwithstanding the appeal waiver contained in Movant’s plea 

agreement. See Patel v. United States, 252 F. App'x 970, 973 (11th Cir. 2007) (stating 

that “an appeal waiver does not relieve counsel of the duty to file a notice of appeal on 

request” and noting that holding an evidentiary hearing is the first “essential step” in 

determining whether an attorney discharged his duty to advise a movant of his appellate 

rights). 

Magistrate Judge Matthewman held a comprehensive evidentiary hearing during 

which he heard testimony from Movant, Movant’s trial attorney, and Movant’s mother. 

In addition, he reviewed documentary evidence. He concluded that Movant had carried 

his burden of showing that his mother had relayed to his attorney that he wanted to 

appeal his sentence, but that his attorney did not file the requested appeal. In the 

Report, Judge Matthewman recommends granting the Motion in part, solely with respect 

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to Ground One, and vacating Movant’s sentence and reimposing the same sentence in 

order to give Movant an opportunity to appeal. Neither the Government nor the Movant 

has objected to the Report. 

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. The Report and Recommendation of Magistrate Judge [DE 35] is 

ADOPTED in full.

2. The Motion [DE 11] is GRANTED in part. 

a. The Motion is granted with respect to Ground One only.

b. Grounds Two, Three, and Four are DENIED without prejudice.

3. Movant’s sentence is hereby VACATED, and the same sentence will be 

REIMPOSED in case number 18-80195-CR-COHN.

4. Movant will be permitted to file a direct appeal within 14 days of entry of 

the Amended Judgment.

5. The Clerk of Court is directed to CLOSE this case and DENY as moot all 

pending motions.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, 

Florida, this 4th day of June, 2021.

Copies provided to:

Counsel of record via CM/ECF

Pro se parties via U.S. mail to address on file

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