United States Court of Appeals

For the Eighth Circuit

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No. 16-1840

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Showin Keon Davis

lllllllllllllllllllllPetitioner - Appellee

v.

United States of America

lllllllllllllllllllllRespondent - Appellant

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Appeal from United States District Court 

for the District of North Dakota - Fargo

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 Submitted: March 10, 2017

 Filed: May 26, 2017

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Before LOKEN, MURPHY, and BENTON, Circuit Judges.

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BENTON, Circuit Judge.

After rejecting two plea offers, Showin K. Davis pled guilty to one count of

conspiracy to possess with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1)

and 846. The district court sentenced him to 120 months’ imprisonment. Davis

moved to vacate the conviction and sentence under 28 U.S.C. § 2255, claiming

ineffective assistance of counsel. The district court granted the motion in part,

ordering the government to reoffer an earlier plea deal. The government appeals. 
Having jurisdiction under 28 U.S.C. §§ 1291 and 2253, this court reversesin part and

remands.

I.

Davis was indicted for conspiring to distribute controlled substances, a charge

with a mandatory ten-year sentence. The government made three plea offers; the

second and third are at issue here. 

The first, offered months before trial, was a standard cooperation agreement. 

Daniel E. Hopper, Davis’s appointed attorney, explained the agreement to him. He

rejected it. 

A week before trial, the government offered Davis a five-year deal (the second

offer). Hopper recommended he take it, explaining a jury likely would find him

guilty. He rejected it. They again discussed the five-year deal the first morning of

trial. Davis showed no interest in it.

On the second day of trial, the government made a third offer. It had a

mandatory ten-year sentence, but limited the type and quantity of controlled

substances attributable to Davis. He accepted. The district court sentenced him to

120 months.

Davis moved to vacate his conviction and sentence under 28 U.S.C. § 2255,

alleging ineffective assistance of counsel. He asserted four claims. The district court

found they

cluster[ed] around two separate theories: (a) during the course of the

pretrial proceedings Hopper did not afford Davis an opportunity to

review discovery and did not file any pretrial motions; and (b) Hopper

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failed to provide Davis with the information to make an informed

decision on the proposed plea agreement and ultimate change of plea.

After an evidentiary hearing, the court rejected the first theory, but granted the

motion on the second:

While Hopper’s representation was not entirely ineffective, during the

immediate pretrial preparation phase, Hopper failed to effectively

communicate the law of conspiracy in a way that Davis was capable of

comprehending; Hopper failed to explain the risks and benefits of the

plea offer in a way that Davis could comprehend; and Hopper

misinformed Davis of his eligibility for the safety valve. These failures

and conveyance of misinformation constitute ineffective assistance of

counsel within the meaning of Strickland v. Washington. 

The court vacated the conviction and sentence. It ordered the government to reoffer

the five-year deal. The government appeals.

This court reviews de novo ineffective assistance claims under § 2255, and the

underlying factual findings for clear error. United States v. Regenos, 405 F.3d 691,

692-93 (8th Cir. 2005). To establish ineffective assistance during plea negotiations,

the petitioner must show “‘counsel’s representation fell below an objective standard

of reasonableness’” and “that such deficient performance prejudiced” the defense. 

Id. at 693, quoting Strickland v. Washington, 466 U.S. 668, 688 (1984). Prejudice

requires “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. 

“[S]crutiny of counsel’s performance must be highly deferential.” Hamberg v.

United States, 675 F.3d 1170, 1172 (8th Cir. 2012) (internal quotation marks

omitted). There is a “strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” United States v. Taylor, 258 F.3d 815,

820 (8th Cir. 2001), citing Strickland, 466 U.S. at 689.

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II.

The district court concluded Hopper was ineffective because he did not

communicate “the law of conspiracy” and “the risk and benefits of the plea offer in

a way that Davis could comprehend.” The court found:

(1) “At the outset, it should be noted that the claim that Hopper never spent a

sufficient amount of time consulting with Davis would be easily disposed of in the

ordinary case. Hopper spent more than 27 hours in conference with Davis over the

course of pretrial preparation. Under ordinary circumstances, this length of time is

typically sufficient to meet with a criminal defendant in a case of this nature.”

(2) “The record does not make plain, but it appears that from the outset that

Davis had limited interest in cooperating with the prosecution. It is clear that from

the very earlieststages of his representation of Davis, Hopper tried to convince Davis

that cooperation was the best strategy. The record also makes plain that Davis

believed that the United States would have difficulty both positively identifying him

as a person involved in the conspiracy and establishing a role for him in the

conspiracy. It is equally clear that upon review of the discovery that Hopper had

reached a different conclusion.”

(3) “[O]n March 4, 2013 . . . Davis met with Hopper and Hopper’s senior

partner Cash Aaland for two hours in the morning and another three and a half hours

in the afternoon for a total of 5.5 hours. During this meeting a comprehensive review

of the discovery, the likelihood of success on the merits, and a discussion of a

possible plea agreement took place. Davis rejected the idea of a change of plea and

indicated a desire to proceed to trial.”

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(4) “[O]n March 25, 2013, approximately ten days prior to trial . . . [there was

a] meeting last[ing] four hours [which] included a further review of the evidence and

a plea offer.”

(5) “Davis spent more than 27 hours in consultation with Hopper. The record

makes plain that Davis had approximately five hours on March 4, 2013, to review the

discovery and another four hours on March 25, 2013. It is also apparent from the

time records that Hopper had numerous lengthy phone conferences with Davis

discussing the case and the evidence against him.”

(6) “The record is plain that Davis was given sufficient opportunity to review

the discovery and he was fully informed about the evidence that would have been

presented to support the charge at the change of plea hearing.”

(7) “Davis’s lawyers, Hopper, Lange, and Aaland each forcefully attempted

to explain the law of conspiracy and how Davis might be convicted, paying particular

attention to the possible penalties he faced.”

(8) “It is apparent that Hopper along with his partners Aaland and Lange

attempted to explain the law of conspiracy in ways that Davis could understand.”

(9) “During [the time leading up to the rejection of the plea offer], Hopper

reviewed discovery and offered up explanations of potentially viable defenses. He

also informed Davis of the difficulties that an identification defense might present.

The discussions at this point were essentially moot since Davis had indicated an

unwillingness to cooperate with the government and was focused on the merits of an

identification defense. Based on the record, the court cannot say that Hopper provided

ineffective assistance of counsel at this stage of the proceedings.”

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(10) “Davis is not the first defendant to fail to hear the message being

delivered by his lawyer.”

Despite these findings, the court concluded Hopper “failed to effectively

communicate the law of conspiracy in a way that Davis was capable of

comprehending,” because: “(1) Davis suffers from mental illnesses and conditions

that impair his ability to focus and to make reasoned decisions, something his lawyers

should have been aware of and taken into account; and (2) Hopper’s communication

style and heavy reliance on telephone communication did not mesh well with Davis’s

difficulties.” 

i. 

The district court based its first finding—that Davissuffers frommental illness

that impaired his ability to understand repeated advice from Hopper and make

reasoned decisions (and that Hopper should have known this)—primarily on mental

health records presented to support Davis’s 2255 motion. The records do not support

this finding.

The records show: (1) Davis was admitted to the hospital two months before

trial for a possible overdose/suicide attempt; (2) he was prescribed antidepressants

(Zoloft and Trazodone); and (3) at discharge he was diagnosed with malingering,

anxiety disorder, mood disorder, and cannabis dependence. The examining doctor

said: “Fund of knowledge, insight and judgment are fair. He is oriented to time,

place and person. Attention and concentration are intact, as well asrecent and remote

memory.” The doctor also reported: “The patient does not give any reliable

information”; “I strongly believe that patient is malingering, and he istrying to evade

his legal problems”; “He is just not being truthful here and I believe that he is

malingering”; and “Patient will be discharged on the same day of admission.” 

Reviewing the records, the district court concluded, “Davis suffers from serious

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mental health problems” including “problems with attention, anxiety (including

agoraphobic traits), depression, and learning” and this mental illness made it difficult

for Davis to understand “what his lawyers were trying to tell him.”

The district court clearly erred in finding that Davis suffered from mental

illness that impaired his ability to understand legal advice and make reasoned

decisions. The mental health records show no learning or comprehension limitations. 

To the contrary, the records show his “[a]ttention and concentration are intact” and

he understood an array of topics, including “patient contract agreements,” “necessity,

risks, benefits, and possible side effects of medications,” “individualized treatment

plan[s],” “variables affecting anticipated length of stay,” and “outcomes that must be

achieved prior to discharge.” If anything, the records show he has a history of lying

about his mental health in order to evade legal problems. 

The finding also contradicts the district court’s earlier findings that Davis was

competent to plead guilty and be sentenced. At the change of plea, the court found

Davis competent: “I see a person here who does seem to be functioning well within

the bell curve who does seem to understand the proceedings, does seem to be in a

position to assist his counsel in his defense and I find that he is competent to

proceed.” See Shafer v. Bowersox, 329 F.3d 637, 650 (8th Cir. 2003) (the question

“whether the accused was competent” means “did he have the ability to understand

the proceedings”). And although the court now believes that “Davis was actually

suffering from more profound mental illness than the court understood at the time of

the change of plea,” it affirmed its competency findings in the 2255 order. Thus, the

court still believes Davis was able to understand legal advice and make reasoned

decisions the day he pled guilty.

The district court also clearly erred in finding that Hopper “should have

known” that Davis was not able to understand legal advice or make reasoned

decisions. “A fair assessment of attorney performance requires that every effort be

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made to eliminate the distorting effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689 (emphasis added). Davis’s

mental illness provides a basis for ineffective assistance of counsel only if Hopper

knew or should have known of it at the time. See Crenshaw v. Wolff, 504 F.2d 377,

380 (8th Cir. 1974) (affirming denial of post-conviction relief where “there was no

evidence that the trial attorney knew or should have known about petitioner’s

possible incompetency”).

There is no evidence that Hopper should have known that Davis’s mental

health issues—not his steadfast denial of wrongdoing—were the reason for his failure

to follow Hopper’s legal advice. See Jones v. Barnes, 463 U.S. 745, 751 (1983)

(“[T]he accused has the ultimate authority to make certain fundamental decisions

regarding the case, as to whether to plead guilty.”). To the contrary, the evidence

shows Hopper had no reason to believe Davis could not understand legal advice or

make reasoned decisions. Davis testified he is the “kind of a person where I don’t

like sharing information about my well-being meaning that I take medications.” All

parties testified to his competence on the day he pled guilty, a week after he initially

rejected the 5-year plea offer and a day after he rejected it a second time. At the

1

change of plea hearing, Davis testified that he understood “the nature of the charge”

against him, “the potential penalties . . . including the 10-year mandatory minimum

At the evidentiary hearing, Davis testified that the first time he reviewed the

1

five-year offer was April 2, the first day of trial. The district court did not credit this

testimony:

On March 25, 2013, the United States extended an offer that would have

allowed Davis to plead to a reduced quantity thus reducing the

mandatory minimum sentence from ten years to five years. Davis spent

four hours with Hopper on March 25 reviewing discovery and

discussing the plea offer. Following those discussions, Davis rejected

the plea offer.

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sentence,” his right to a jury trial, and the unavailability of parole. Hopper similarly

testified he had not “seen anything that would cause [him] to question [Davis’s]legal

competence.” (Davis later testified he did not know whether Hopper knew about his

anxiety the first day of trial, and he not ask Hopper to help him with it). At the plea

hearing, the district court found him competent to plead guilty:

Here’s what I think I’ve seen and observed. The defendant has related

that he has some history of mental illnesses and that he’s taking

medications for them; that he was taking his medications; that he

skipped yesterday. After he took his medications that things seemed

clearer to him and that he wants to plead guilty. That to the Court seems

to be a rational decision at this point.

. . . .

I see a person here who does seem to be functioning well within the bell

curve who does seem to understand the proceedings, does seem to be in

a position to assist his counsel in his defense and I find that he is

competent to proceed.

The court reiterated these findings in its 2255 order: “It is also clear that at the time

he entered his plea, Davis was in a position to understand the charge against him, the

penalties that he faced, his constitutional and statutory rights, and that he was in a

position to assist his lawyer in his defense.” At sentencing, the district court did not

question his competence.

The record shows that when he pled guilty, Davis, Hopper, and the district

court all believed Davis was competent to understand legal counsel and make

reasoned decisions. The court’s finding that “Davissuffers frommental illnesses and

conditionsthat impair his ability to focus and to make reasoned decisions, something

his lawyers should have been aware of and taken into account” is thus influenced by

“the distorting effects of hindsight,” and is clear error. Strickland, 466 U.S. at 689.

 

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ii.

The second finding—that “Hopper’s communication style and heavy reliance

on telephone communication did not mesh well with Davis’s difficulties”—does not

provide a basis for ineffective assistance of counsel. First, it is a close call whether

thisfinding issupported by the record. The court described Hopper’s communication

style: 

The court isfamiliar with Hopper, a capable and competent lawyer. His

personal style of communication is soft-spoken, inferential, and

non-confrontational. He is a person who prefers to provide information

and allow the listener to draw his or her own conclusions. If the listener

has difficulty reaching the most apparent conclusion, Hopper tends to

conversationally and rationally, and sometimesrepetitively, explain the

conclusion and the ramifications.

The court also found that Hopper “attempted to explain the law of conspiracy in ways

that Davis could understand.” These findings show that Hopper thoroughly and

repeatedly explained the law, and yet Davis continued to reject plea offers. The

district court does not say how Hopper more thoroughly could have explained the

law. In fact, the court recognized that many of Hopper’s explanations were moot

because Davis was unwilling to cooperate:

During this remote preparation period, Hopper reviewed discovery and

offered up explanations of potentially viable defenses. He also informed

Davis ofthe difficulties that an identification defense might present. The

discussions at this point were essentiallymoot since Davis had indicated

an unwillingness to cooperate with the government and was focused on

the merits of an identification defense.

It is hard to reconcile how Davis could have been “focused on the merits of an

identification defense” without understanding the law of conspiracy generally. The

court also recognized Hopper was not ineffective during other phases of the trial: 

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“The record is plain that Davis . . . was fully informed about the evidence that would

have been presented to support the charge at the change of plea hearing.” It similarly

is hard to reconcile how Hopper could have “fully informed” him“about the evidence

that would have been presented to support the charge” but not clearly explained the

law of conspiracy underlying it. 

Regardless, the fact that Hopper’s communication style—“conversational[],

rational[], and sometimesrepetitive[]—did not “mesh” well with Davisisinsufficient

to find ineffective assistance of counsel. See Lindhorst v. United States, 658 F.2d

598, 603 (8th Cir. 1981) (denying 2255 motion, acknowledging that while “the

attorney could have explained [the case] in greater detail,” “the failure to more fully

discuss the case does not constitute a breach of the duty to act as a reasonably

competent attorney”). 

Evaluating Hopper’s “conduct . . . from [his] perspective at the time,”

Strickland, 466 U.S. at 689, Davis cannot meet his “heavy burden” of showing that

Hopper was ineffective in explaining conspiracy law. See DeRoo v. United States,

223 F.3d 919, 925 (8th Cir. 2000). The district court erred in granting the motion on

this basis.

III.

The district court also concluded Hopper was ineffective because he did not

correctly advise Davis about the safety-valve exception to the mandatory minimum

10-year sentence under 18 U.S.C. § 3553(f). On the morning of the plea, Hopper

argued that Davis’s criminal history was overrepresented, implying the safety valve

may reduce the sentence. The district court disagreed:

The Eighth Circuit case law says that we can’t find overrepresentation

as a basis to get to the safety valve. And so all that’s going to happen

on the safety valve analysis is we’re going to go and count the points. 

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And it looks to me like he’s got four one-point offenses, and if he’s got

four one-point offenses he’s certainly going to be outside a Criminal

History Category I. He’s going to be in Criminal History Category III,

and so he’s clearly not safety valve eligible if that all scores up the way

that it looks. I mean, in which case the mandatory minimum is going to

apply. What he gains then is simply the benefit of the two-level

downward departure for acceptance.

The court suggested Hopper and Davis speak with the probation officer about his

criminal history. After a fifteen-minute recess, Hopper informed the court that Davis

still wanted to plead guilty. 

At the evidentiary hearing, Davistestified that even after the district court said

he was not safety-valve eligible, Hopper promised him otherwise. In one part of its

order, the district court found this testimony credible: “At the evidentiary hearing,

Davis credibly testified that during the break Hopper and Jesse Lange, a senior

partner of Hopper’s, told him that they would get AUSA Chris Myers to accept the

safety-valve because the prior offenses were minor.” Later, however, the court noted

the testimony was “directly contrary” to his plea colloquy:

While the record of the plea hearing makes plain that Hopper was

uninformed of the nature of the safety-valve, the court informed Davis

that it was unlikely that he would qualify for the safety-valve. Davis

admitted that his decision to accept the plea was to avoid an increase in

the drug quantity attributable to him. While he now claims that he was

promised by Hopper that Hopper would get the prosecutor to agree to

safety-valve eligibility, Davis’s contention is directly contrary to the

plea colloquy where he indicated that no other promise or threats had

been made. Hopper provided effective assistance of counsel during the

plea hearing.

Thus, it is not clear whether Davis believed he wassafety-valve eligible when he pled

guilty. Regardless, the district court did not err in finding Hopper deficient in failing

to explain the safety-valve exception. See United States v. Langmade, 236 F.3d 931,

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932 (8th Cir. 2001) (reducing a defendant’s criminal history category based on

overrepresentation “does not delete criminal history points for the purposes of the

safety valve”).

Based on Hopper’s misunderstanding of the safety valve, the district court

ordered the government to reoffer the five-year plea agreement. But the court does

not explain how the safety-valve misunderstanding affected rejection of the five-year

deal. Instead, the court’s analysis of the safety valve focuses only on the decision to

plead guilty to the ten-year deal rather than proceed to trial:

The record makes plain that Hopper was aware that Davis’s criminal

history placed him in a Category II or higher. [Hopper] was, however

operating under the notion that he [Davis] could still qualify for the

safety-valve exception because his criminal historywas overstated. The

law of this circuit has long been that the criminal history point

calculation is separate and distinct from the decision that a particular

defendant’s criminal history is overstated. Simply put, it has been the

law of this circuit for nearly two decadesthat while a court isfree to find

that the criminal history is overstated—it is not empowered to reduce the

point total for purposes of the safety-valve calculation. Thus, Hopper

was entirely mistaken when he told Davis that he could still qualify for

the safety-valve because his criminal history was overstated. Based on

this misrepresentation of the law, Davis reasonably believed that by

pleading guilty he would not be subject to the ten year mandatory

minimum. It is plain from the change of plea hearing that as late as the

morning of April 3, 2013, Davis believed that he would be eligible for

the safety-valve.

(emphasis added) (citations omitted). 

Davis similarly focused on the 10-year deal in arguing the safety-valve issue

in his 2255 motion:

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Davis will testify at the hearing on his Motion that attorney Hopper

advised him on the morning of the second day of his trial (while in

attorney Hopper’s office) that Davis needed to plead guilty because he

was going to lose, that his “name was on the wall”, but that Davis would

likely qualify for the safety valve provision under the Federal

Sentencing Guidelines, and thus not be subjected to the mandatory

minimum sentence of ten years.

. . . .

Davis will also testify that, had he known he was going to get at least the

minimum mandatory even if he pled guilty, he would have taken his

chances with a trial rather than pleading.

In briefing before this court, Davis now asserts he rejected the five-year offer

because he believed he was safety-valve eligible:

For all Davis knew, he was safety valve eligible regardless of whether

he went to trial, accepted the 5-year plea agreement, or pleaded to the

Indictment just as he did. Simple deductive reasoning results in the

inescapable conclusion that if Hopper didn’t understand the safety valve

eligibility requirements when he advised Davis to just “answer the

questions and stick with the plea” on April 3, 2013, Hopper clearly

didn’t know any different during the earlier time frame of him

representing Davis. Hopper’s incorrect advice clearlypermeated Davis’s

decisions on the plea offers.

But there is no evidence Hopper and Davis discussed safety-valve relief when the

five-year deal was offered. The safety-valve exception is thus not relevant to his

rejection of the five-year offer. Additionally, Davistestified he rejected the five-year

deal because he believed he was innocent, not because he believed he was safetyvalve eligible. Thus, he cannot show that but for the misleading advice, he would

have accepted to the five-year deal. See Lafler v. Cooper, 566 U.S. 156, 163 (2012)

(“To establish Strickland prejudice a defendant must ‘show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

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would have been different.’”), quoting Strickland, 466 U.S. at 694; United States v.

Norvell, 729 F.3d 788, 795 (8th Cir. 2013), as corrected (Sept. 4, 2013) (holding that

“[t]o show prejudice, the defendant must establish that he would have accepted the

plea but for counsel’s advice” and defendant cannot show a legal misunderstanding

prejudiced him where counsel still advised him to accept the plea) (internal quotation

marks omitted).

At most, Hopper was deficient on the morning of the plea colloquy, when the

five-year deal was no longer available and he encouraged Davisto accept the ten-year

deal. The proper remedy was not to reoffer the five-year deal. The district court

erred in directing the government to do so.

Finally, it is not clear whether Davis was prejudiced by the safety-valve advice. 

The district court examined whether, but for counsel’s erroneous safety-valve advice,

he would have accepted the five-year offer. But as discussed, the proper inquiry was

whether he would have rejected the ten-year offer and proceeded to trial had he

properly been advised by attorney Hopper—as he was advised by the district court—

that he wasineligible for safety valve relief fromany applicable mandatory minimum

sentence. The district court did not make a finding on this issue.

This court remands to the district court to determine whether Davis was

prejudiced by the safety-valve advice. If prejudiced, the court should allow Davis to

withdraw his guilty plea and proceed to trial. If not prejudiced, the court should

dismiss the motion. 

* * * * * * *

The judgment is vacated, and the case remanded.

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