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United States v. Harris

United States District Court, E.D. Virginia, Richmond Division

September 21, 2016

UNITED STATES OF AMERICA
v.
CORY D. HARRIS, Petitioner.

          MEMORANDUM OPINION (DISMISSING CLAIMS TWO THROUGH TEN)

          HENRY E. HUDSON UNITED STATES DISTRICT JUDGE

         Cory D. Harris, a federal inmate, submitted a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("2255 Motion, " ECF No. 67).[1] Harris contends that he experienced ineffective assistance of counsel, [2] prosecutorial misconduct, and trial court error in conjunction with his conviction and appeal. Specifically, Harris demands relief because:

Claim One: "Ineffective assistance of trial counsel in violation of the Sixth Amendment for giving erroneous advice that led to rejection of plea." (Id. at 4.)
Claim Two: "Ineffective assistance of trial counsel in violation of the Sixth Amendment for failure to object to constructive amendment of Count One." (Id. at 5.)
Claim Three: "Ineffective assistance of trial counsel in violation of the Sixth Amendment for failure to object to constructive amendment of Counts 3 and 4." (Id. at 7.)
Claim Four: "Ineffective assistance of appellate counsel in violation of the Sixth Amendment for failure to raise constructive amendment on appeal." (Id. at 8.)
Claim Five: "Alleyne [v. United States, 133 S.Ct. 2151 (2013)]
issue/Sixth Amendment violation." (Id. at 14.)
Claim Six: "Napue [v. Illinois, 360 U.S. 264 (1959)] issue/Fifth Amendment violation/prosecutorial misconduct." (Id.)
Claim Seven: "Ineffective assistance of trial counsel in violation of the Sixth Amendment for failing to present evidence needed to establish reasonable doubt as to the drug conspiracy." (Id.)
Claim Eight: "Ineffective assistance of trial counsel in violation of the Sixth Amendment for failing to present evidence needed to establish reasonable doubt as to Counts Five and Six of the Superseding Indictment." (Id. at 15.)
Claim Nine: "The Supreme Court's Almendarez-Torres [v. United States, 523 U.S. 224 (1998)] ruling must be overruled that prior convictions, like any other fact that increases mandatory minimums, must be alleged in the indictment and proved to a jury beyond a reasonable doubt." (Id.)
Claim Ten: "Whether the District Court erred by increasing the consecutive sentences for Counts Three and Four even though I was charged and convicted of these gun offenses in one indictment and the additional consecutive sentences were not for second or subsequent offenses[.]" (Id.)

         The Government has responded, asserting that Harris's ineffective assistance claims lack merit and that his remaining claims are procedurally defaulted. (ECF No. 70.)

         On April 22, 2015, counsel entered a Notice of Appearance on Harris's behalf. (ECF No. 73.) On May 23, 2016, counsel filed a Motion for Leave to File Reply Memorandum of Law in Support of Harris's § 2255 Motion ("Motion for Leave to File, " ECF No. 76). Counsel attached the proposed Reply (ECF No. 76-1), as well as several affidavits (ECF Nos. 76-2, 76-3, 76-4, 76-5.) The Government filed an objection to the Motion for Leave to File. (ECF No. 77.) Because the proposed Reply provides additional argument and support for Claims One, Five, and Nine, the Court will grant the Motion for Leave to File (ECF No. 76) and direct the Clerk to file the Reply (ECF No. 76-1) as a separate docket entry in this matter. For the reasons stated below, the Court will conduct an evidentiary hearing as to Claim One, and deny Harris's § 2255 Motion as to the remaining claims.

         I. PROCEDURAL HISTORY

         On June 8, 2011, a grand jury charged Harris with conspiracy to distribute and possess with the intent to distribute 280 grams or more of a mixture and substance containing a detectable amount of cocaine base (Count One), possession with the intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of cocaine base (Count Two), two counts of possession of a firearm in furtherance of a drug trafficking crime (Counts Three and Four), and two counts of possession of a firearm by a convicted felon (Counts Five and Six). (Superseding Indictment 1-4, ECF No. 12.) On August 5, 2011, a jury found Harris guilty of all six counts of the Superseding Indictment. (ECF No. 34.)

         On November 28, 2011, the Court entered judgment against Harris and sentenced him to a total of 600 months of imprisonment. (J. 3, ECF No. 47.) Specifically, the Court sentenced Harris to 240 months on Count One, 240 months on Count Two, to be served concurrently, 60 months on Count Three, to be served consecutively, 300 months on Count Four, to be served consecutively, 120 months on Count Five, to be served concurrently, and 120 months on Count Six, to be served concurrently. (Id.)

         Harris, through counsel, filed a Notice of Appeal. (ECF No. 49.) On appeal, Harris argued "that the district court erred in permitting the Government to admit evidence that he was involved with controlled substances, marijuana and heroin, that were not charged within the superseding indictment." United States v. Harris, 494 F.App'x 341, 342 (4th Cir. 2012). Harris also alleged "that the district court applied the wrong mandatory minimum sentence" with respect to Count Two. Id. at 342, 344. The United States Court of Appeals for the Fourth Circuit affirmed Harris's convictions and sentences. Id. at 345.

         II. INEFFECTIVE ASSISTANCE OF COUNSEL

         A. Trial Counsel

         To demonstrate ineffective assistance of counsel, a convicted defendant must show first, that counsel's representation was deficient and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, the convicted defendant must overcome the "'strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

         1. Trial Counsel's Performance Regarding Plea Offer

         In Claim One, Harris contends that trial counsel "g[ave] erroneous advice that led to rejection of plea." (§ 2255 Mot. 4.) In support of his argument, Harris states:

Attorney James A. Bullard Jr. told me that he could get all of the evidence suppressed and thrown out based on a Fourth Amendment violation. He said that I have a right to privacy in my own home and the confidential informant violated that right when he told law enforcement what he/she had seen, and that information was used to get a search warrant. That erroneous advice led to a rejection of a favorable plea offer in which I proceeded to trial and received a harsher sentence and counsel never filed a suppression motion.

(Id.) In his Reply, Harris expands upon his claim of ineffective assistance to argue that "Bullard never told Harris that Harris faced anything around a 600-month sentence if Harris rejected the government's 10-year plea deal, went to trial and lost." (Reply 5.)

         a. Harris's Assertions

         Harris's § 2255 Motion is sworn under penalty of perjury. (§ 2255 Mot. 13.) Harris has also submitted a Declaration, sworn under penalty of perjury, to support his claim that he chose to reject a "favorable 10 year plea" based on counsel's assurance that a motion to ...


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