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United States v. Harris

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

March 3, 2017

CORY D. HARRIS, Petitioner. Civil Action No. 3:14CV32-HEH


          Henry E. Hudson United States District Judge

         Petitioner Cory D. Harris ("Harris"), a federal inmate, urges this Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 based on his contention that he received ineffective assistance by his trial counsel. By Memorandum Opinion and accompanying Order issued on September 22, 2016 (ECF Nos. 78, 79, respectively), this Court dismissed Claims Two through Ten of Harris's 28 U.S.C. § 2255 Motion ("§ 2255 Mot.", ECF No. 67). The remaining claim focuses on the adequacy of trial counsel's representation during the course of plea negotiations. Specifically, Harris maintains that trial counsel provided "erroneous advice that led to rejection of plea." (§ 2255 Mot. ¶ 12.) Because material facts pivotal to the resolution of this claim are in dispute, this Court was unable to find conclusively, at the pleading stage, that Harris was entitled to no relief on this claim. See 28 U.S.C. § 2255(b). Accordingly, this Court conducted an evidentiary hearing on December 2, 2016, limited to whether Harris was competently counseled concerning his potential sentencing exposure under the U.S. Sentencing Guidelines, if convicted by a jury, and whether counsel failed to adequately pursue a motion to suppress evidence seized from Harris's home. Harris asserts that trial counsel's deficient representation "led to a rejection of a favorable plea offer in which [Harris] proceeded to trial and received a harsher sentence" (Id. at ¶ 12(a).)

         As more fully explained in this Court's previous Memorandum Opinion, Harris was convicted by a jury of conspiracy to distribute and possession 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 fifty 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). (See Superseding Indictment, ECF No. 12.)

         On November 28, 2011, Harris was sentenced to a total of 600 months of imprisonment. Specifically, the Court sentenced Harris to 240 months on Count One, 240 months on Count Two, to be served concurrently with Count One, 60 months on Count Three, to be served consecutively, 300 months on Count Four, to be served consecutively, 100 months on Count Five, to be served concurrently, and 120 months on Count Six, to be served concurrently. The United States Court of Appeals for the Fourth Circuit affirmed Harris's convictions and sentences.

         In Harris's remaining claim on his § 2255 Motion, he contends that his trial counsel gave "erroneous advice that led to rejection of plea." (§ 2255 Mot. ¶ 12.) Harris elaborates by maintaining that his attorney, James A. Bullard, Jr. ("Bullard"), advised him that "he could get all of the evidence suppressed and thrown out based on a Fourth Amendment violation." (Id. at ¶ 12(a).) Relying on that advice, Harris claims that he rejected "the government's 10-year plea deal, went to trial and lost." (Pet'r's Reply at 5, ECF No. 80.) According to Harris, his attorney never advised him that he had a potential sentencing exposure of 600 months if convicted at trial on all six counts. (Id.) It was Harris's impression, based on conversations with his lawyer, that he was only facing eighteen years if convicted at trial. (Id. at 6.)

         Bullard countered through the government's responsive pleading that after reviewing the state's search warrants and accompanying affidavits, he explained to Harris that he saw no basis for filing a motion to suppress. Moreover, Bullard maintained that Harris's "decision to reject the plea offer and proceed to trial was his alone, and was not connected to any advice given to him regarding any suppression motions." (Gov't's Resp. to Petition, Ex. 2 at ¶ 2, ECF No. 70-2.) To resolve the conflicting representations, this Court held an evidentiary hearing on December 2, 2016, as required by 28 U.S.C. § 2255(b). Following the hearing, each side was afforded an opportunity to file additional memoranda supporting their positions.[1]

         On direct examination, Harris testified that it was his idea to file a motion to suppress, "[b]ased upon me sharing with him that the search warrant was illegally obtained, and that they used false informant [sic] to obtain the search warrant."[2] (Hr'g Tr. 8:19-21, ECF No. 88.) Harris stated that his initial retained attorney declined to file a motion to suppress and encouraged Harris "to take a plea agreement instead of fighting it." (Id. at 10:11.) Harris decided to fire his first attorney and retain Bullard. (Id. at 9:23-10:22.)

         Harris further explained that he was "open to a plea agreement, " but apparently wanted to pursue the motion to suppress as a matter of principle, "[b]ecause I just wanted to shine some light on them violating my constitutional rights." (Id. at 10:15-19.) Harris amplified his reasoning on direct examination. "Actually, the guns and the drugs came to the house an hour and a half prior to them executing the search warrant." (Id. at 9:7-9.) Harris recounted that he explained to Bullard "what had happened as far as me bringing the drugs in the house, and then the affidavit stating that within 72 hours they had a reliable informant, which I know couldn't have been true." (Id. at 12:4-7.) According to Harris, Bullard explained to him that "an informant cannot come into my house without explaining with specificity the place where the drugs and guns could be found." (Id. at 11:18-20.) "That mean [sic] I had grounds to file a suppression motion." (Id. at 11:22-23.) This discussion apparently occurred at Harris's first meeting with Bullard.

         When asked during the evidentiary hearing how he had become so knowledgeable about the law, Harris responded: "I've stayed in the law library every day since I first stepped foot into the ... BOP." (Id. at 13:5-6.)

         One month later, at their second meeting, Bullard spoke to Harris about a proposed plea agreement. (Id. at 14:15-24.) Harris acknowledged to Bullard that he was in fact guilty and that he admitted to law enforcement that he was the only person residing in the house that was searched.[3] (Id. at 15:9-18.) Harris indicated that his primary concern during that second meeting was discussing the potential motion to suppress the evidence seized. (Id. at 15:22-25.) Harris persisted in arguing that the drugs were not present on his premises seventy-two hours before the search warrant was executed. (Id. at 16:1-17:9.)[4] Harris did recall that Bullard informed him that "the plea was 10 years if I plead to Count 1 of the indictment. Count 2 and Count 3 would be dismissed." (Id. at 18:18-20.) According to Harris, Bullard indicated during the second meeting that he was still working on filing the motion to suppress. (Id. at 19:4-5.) Harris informed Bullard that he was unwilling to accept the plea offer at the time. When asked why, he responded "[b]ecause I ain't never did no time. I never really been in any real trouble. So, 10 years to me, away from my kids and family, sounded like life." (Id. at 19:16-22.) He added, however, that if he had known that Bullard never intended to file the motion to suppress, he would have accepted the plea offer. (Id. at 19:23-20:3.)

         At their next meeting, Bullard informed Harris that the government now had two witnesses willing to testify that Harris had sold them drugs. (Id. at 20:11-13.) Bullard advised Harris that if there is no plea agreement by June 8, the United States intended to supersede the initial indictment. (Id. at 21:2-14.) Harris testified that he again asked Bullard about the posture of the motion to suppress. (Id. at 21:24-25.) Harris testified that Bullard responded that he was working on it. (Id. at 22:1-2.) Harris still believed that the motion to suppress was his "best chance at winning in my pretrial stages. So if I take the plea, then I know I can't shine light on them violating my constitutional rights." (Id. at 22:3-8.)

         Harris denied that Bullard, at that point, explained to him his increased sentencing exposure under the superseding indictment, particularly the potential effect of mandatory consecutive sentences. (Id. at 23:4-17.) Harris, however, acknowledged that Bullard informed him that as a result of the superseding indictment, he was facing additional charges and a substantially increased potential sentence. (Id. at 22:17-23; 48:3-10.) Harris conceded that his focus at that stage was still on the motion to suppress.

         Harris characterized his relationship with Bullard at that point as involving a breakdown of communication. (Id. at 23:25.) When asked by the Court why he did not file a motion before trial seeking new counsel, he replied "[N]o, sir. Because he was a paid attorney." (Id. at 24:10-14.) Despite advising the Court at the sentencing hearing that Bullard had gone over the Presentence Report with him and explained the sentencing guidelines, he steadfastly denied such conversation at the evidentiary hearing. (Id. at 25:21-26:15; 37:2-5.)

         Somewhat inconsistent with his confident analysis and opinion of the legality of the search of his residence, Harris professed on cross-examination an inability to understand the penalty provisions when explained by the Court at the time of arraignment. (Id. at 30:11-23.) He maintained that he simply acknowledged an understanding of the charges and penalties because his lawyer advised him to say "Yeah." (Id. at 31:20-21.) He added that the penalty provisions were never explained to him. (Id. at 32:15-17.)[5]

         The focal point of his recollection was being offered an opportunity to plead guilty to one count of the original indictment, with a recommended sentence often years. (Id. at 32:18-33:9.) If he knew he had no chance of winning the suppression hearing, Harris testified that he would have taken the ten-year deal. (Id. at 33:13-15.) At that initial stage, Harris admitted that he was more interested in prevailing on the motion to suppress than accepting the ten-year plea deal. (Id. at 34:1-16.) Once the superseding indictment was returned, Bullard explained to him that he was now facing around twenty years. (Id. at 36:9-11.) Neither during the trial nor after the return of the verdicts of guilty did Harris express concern to the Court about his lawyer's performance. (Id. at 36:17-37:1.) Harris also testified that Bullard never advised him that he was facing a possible sentence of 600 months. (Id. at 41:15-18.) If he had, Harris mentioned that he would have taken the ten-year deal. (Id. at 41:19-21.)

         At the close of cross-examination, Harris restated that his entire decision to reject the ten-year plea deal was based on the promise of the suppression motion being argued. (Id. at 46:2-7.) According to Harris, he first learned that Bullard had no ...

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