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United States v. Harris

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

July 27, 2018




         Darrell Lamont Harris, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion," ECF No. II).[1] In his § 2255 Motion, [2] Harris raises the following claims for relief:

Claim One: Counsel provided ineffective assistance[3] by:
(a) "failing to file any pretrial motions'' or "pretrial discovery," "failing to conduct any pretrial investigations," and "not properly prepar[ing]," resulting in unacceptable strategic decisions (Id. at 4, 13-14);
(b) "refus[ing] to file a pretrial motion to dismiss federal indictment on grounds that the government violated [Harris's] Fifth Amendment Due Process Rights against pre-indictment delay"[4](id. at 4);
(c) "refusing to file pretrial suppression motion to suppress the in-court [and] out-[of-]court identification of the prosecutor[']s two key witnesses" (id. at 15);
(d) "refus[ing] to file pretrial motion to dismiss federal indictment on grounds that prior dismissal of all [state] charges against [Harris] for the April 28, 2012 offense . . . should have constitutionally barred the federal government from later bringing charges against [Harris] for the same April 28, 2012 offense." (Id. at 16.)
Claim Two:" [Harris] was denied a fair trial for the following reasons with regard to prosecutorial misconduct[:]"
(a) "Fifth Amendment Double Jeopardy violation, (vindictive prosecution) (selective prosecution)"[5] (id. at 5);
(b) "Intentional distortion of evidence/ Brady [6] violation in that the prosecution withheld exculpatory evidence." (Id.)
Claim Three: "The evidence adduced in the trial of this case was insufficient as a matter of fact and law to sustain the resulting conviction." (Id. at 7.)
Claim Four: "Appellate counsel rendered ineffective assistance [by] failing to present on appeal evidence to support [Harris's] claim that the subsequent federal indictment against him should have been constitutionally barred from re-prosecution due to the prior dismissal of all [state] charges.7' (Id. at 8.)
Claim Five: "The trial of this case [wa]s representative of a sham prosecution." (Id. at 9.)

         The Government has responded, asserting that Harris's claims lack merit. (ECF No. 88.) Harris has replied. (ECF No. 94.) For the reasons set forth below, Harris's § 2255 Motion (ECF No. 77) will be denied.


         The Government seeks dismissal of the § 2255 Motion on the ground that Harris fails to state a claim upon which relief can be granted. (ECF No. 88, at 23.) It is important to clarify-initially that Fed. R. of Civ. P. 12(b)(6) is not the appropriate procedural vehicle to use in assessing standard of a motion to vacate under § 2255. In Raines v. United States, 423 F.2d 526 (4th Cir. 1970), the United States Court of Appeals for the Fourth Circuit listed three means of properly disposing of § 2255 motions: (1) summary dispositions; (2) dispositions on expanded records; and (3) evidentiary hearings. Id. at 529-30. Section 2255 permits the Court to summarily dismiss a claim if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief ." 28 U.S.C. § 2255(b). Nevertheless, “[a]llegations of 'a vague, conclusory or palpably incredible nature' do not raise factual issues which require a full hearing." Raines, 423 F.2d at 531 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)). Moreover, "no hearing is required if the petitioner's allegations 'cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). In this instance, summary dismissal is appropriate. It is upon this standard that the Court reviews Harris's claims.


         Harris was charged, in the Circuit Court for the City of Colonial Heights, Virginia, with robbery and related felony charges in the City of Colonial Heights, Virginia. The preliminary hearing for these charges was held on August 8, 2012. The trial was set to begin on January 28, 2013, but the charges were ultimately nolle prossed. (Gov't's Resp. 9.)

         The charges were later reinstated. Harris's counsel then filed several motions, including a motion to suppress the in-court and out-of-court eyewitness identifications of Harris. At the suppression hearing, one of the Commonwealth's witnesses, Jennifer Hurley, was shown a photo lineup by Harris's counsel, which was later determined to be a photo lineup that did not include Harris's photograph.[7] Before it was determined that Ms. Hurley was shown a photo lineup that did not include Harris, Ms. Hurley identified Harris as "number two" on the photo lineup. In response, to Ms. Hurley's identification, Harris's counsel stated, "And I would note for the record, Judge, that is correct." A subsequent witness for the Commonwealth was shown the same photo lineup, and this witness indicated that the photo lineup was not the same photo lineup that the police officers had previously shown the witness. (May 20, 2013 Tr. 27.) The court denied the defense's suppression motion. (May 20, 2013 Tr. 57-58.) Ultimately, the charges were dismissed before trial by the Circuit Court for the City of Colonial Heights on speedy trial grounds.

         On July 9, 2013, a federal grand jury, in a one-count Indictment, charged Harris with interference with commerce by robbery. On December 30, 2013, Harris's counsel filed a Motion in Limine, seeking to exclude the following testimony and evidence:

(1) any testimony by law enforcement or any other government witness alleging that Mr. Harris was a suspect or in any way involved in any other robberies in Colonial Heights or in [any] other jurisdiction, and (2) evidence of a toy gun found in an apartment where Mr. Harris lived at the time of the robbery.

(Mot. in Limine 1, ECF No. 22.) After hearing argument, the Court denied the motion as to the toy gun, which was "described as a BB gun in the pleadings," and denied as moot the motion as to any reference to other robberies because "the United States does not intend to introduce any evidence of other crimes, including robberies." (Order 1, ECF No. 29.)

         On January 6, 2014, the jury trial commenced. On January 8, 2014, after the close of all evidence in the case, Harris moved for a judgment of acquittal pursuant to Fed. R. of Crim. P. 29. The Court denied the motion. Following deliberations, which began on January 8, 2014 and ended on January 9, 2014, the jury returned its verdict. (ECF Nos. 39, 41.) The jury found Harris guilty of one count of interference with commerce by robbery, as charged in the one-count Indictment. (ECF No. 42.)

         On April 8, 2014, the Court entered judgment against Harris and sentenced him to 24 0 months of imprisonment. Harris appealed. (ECF No. 57.) On appeal, Harris argued that the Court "erred in denying his motion for a judgment of acquittal under Fed. R. Crim. P. 29, because the Government presented insufficient evidence to sustain his conviction." United States v. Harris, 593 Fed.Appx. 189, 190 (4th Cir. 2014) . The United States Court of Appeals for the Fourth Circuit found no error and affirmed Harris's conviction. Id. at 191.


         The Fourth Circuit summarized the evidence of Harris's guilt as follows:

Harris concedes that the Government presented sufficient evidence that a robbery occurred and that the perpetrator violated the Hobbs Act. He argues, however, that the Government presented insufficient evidence to permit the jury to conclude beyond a reasonable doubt that he committed the robbery. Specifically, Harris contends that (1) the eyewitness identifications were unreliable; (2) the evidence of a BB gun recovered from his girlfriend's residence did not clearly link him to the crime; and (3) blue latex gloves recovered from his girlfriend's residence, allegedly matching gloves worn by the robber, are so commonplace that they do not support the conviction.
It is well settled that "the identification of a criminal actor by one person is itself evidence sufficient to go to the jury and support a guilty verdict." United States v. Holley, 502 F.2d 273, 274 (4th Cir. 1974) . Here, two eyewitnesses selected Harris from a photographic lineup and positively identified Harris during their in-court testimony. Although not contesting the admissibility of testimony regarding the identifications, Harris contends that the circumstances surrounding the photographic lineup identifications were so suggestive that the eyewitness identifications were insufficient to establish his identity as the robber. "In the absence of a very substantial likelihood of irreparable misidentification, [eyewitness identification] evidence is for the jury to weigh." Fowler v. Joyner, 753 F.3d 446, 454 (4th Cir. 2014) (internal quotation marks and ellipsis omitted). In determining the likelihood of misidentification, the factors a court should consider include:
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
Here, both eyewitnesses had ample opportunity to view the robber. Although the robber wore a mask during the robbery, one of the eyewitnesses observed the robber before he pulled the mask over his face and the other eyewitness observed distinguishing facial features through cutouts in the mask. Further, both eyewitnesses provided an accurate description of the robber, in line with the descriptions provided by other eyewitnesses and generally matching a description of Harris. Additionally, both eyewitnesses testified that they were certain Harris was the robber. The testimony of Harris's alleged coconspirator placed Harris at the scene of the robbery. Finally, although Harris's federal trial occurred two years after the robbery, both eyewitnesses picked Harris out of a lineup within two days of the robbery and confronted Harris in ...

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