HENRY E. HUDSON, 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).
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.
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.
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.
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:
(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.)
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 suppress would be filed. (ECF No. 72, at 1.) Specifically, Harris states:
My lawyer, Mr. James A. Bullard Jr. told me that an informant cannot come into my home and then report to law enforcement what he/she observed while inside of the residence at 2105 Bishop St. Petersburg, VA 23805, because it will be in violation of my Fourth Amendment right to privacy in my own home. He said that he would file a motion to suppress the evidence found at my Bishop St. home due to illegal search and seizure, in violation of the Fourth Amendment to the Constitution. Mr. Bullard never filed the motion to suppress and I rejected a favorable 10 year plea based on this erroneous advice, because if an informant has been reliable in the past and law enforcement officers has personal knowledge of an informant's reliability, then probable cause can be found to issue the warrant. I would have taken the 10 year plea if it wasn't for the erroneous advice that I received from Mr. Bullard, as opposed to me going to trial and receiving a 600 month sentence.
(Id. at 1-2.)
Harris also submitted Affidavits prepared by Sophia Harris, Vivian Harris, and Deisha Miller, who are presumably relatives of Harris. (ECF Nos. 76-2, 76-3, 76-5.) These three individuals all aver that Bullard indicated to them that Harris's Sentencing Guidelines range only called for thirteen to eighteen years of incarceration if Harris was convicted. (ECF No. 76-2, at 1; ECF No. 76-3, at 1; ECF No. 76-5, at 1.) Ms. Miller further states that "Mr. Harris was offered a plea agreement for 10 years, but he didn't accept it because he was under the assumption of his guidelines." (ECF No. 76-5, at 1.)
Harris also submitted another Declaration with his Reply. (ECF No. 76-4.) In it, he states:
(Id at 1.)
The Government has provided an Affidavit from trial counsel James A. Bullard, Jr. (Gov't's Resp. Ex. 2 ("Bullard Aff."), ECF No. 70-2.) With respect to Claim One, Bullard states:
(.Id. 2.)
"During plea negotiations defendants are `entitled to the effective assistance of competent counsel.'" Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). As the Supreme Court has explained:
Missouri v. Frye, 132 S.Ct. 1399, 1409 (2012). The defendant must also show "that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Lafler, 132 S. Ct. at 1385.
Here, the parties have offered conflicting evidence as to whether Bullard misadvised Harris about the likelihood of success on a motion to suppress prior to Harris's rejection of the plea offer, as well as about his sentencing exposure if Harris decided to reject the plea offer and proceed to trial. Harris asserts that Bullard told him that he would file a motion to suppress and that, based upon this advice, he rejected a tenyear plea offer. (ECF No. 72-1, at 1.) Harris states, however, that Bullard never filed the motion. (Id.) Harris further asserts that Bullard never advised him that he faced a 600month sentence if Harris chose to reject the plea offer and proceed to trial, and that Bullard was unaware of the fact that any sentences imposed for convictions under 18 U.S.C. § 924(c) would be consecutive to any other sentence. (ECF No. 74-4, at 1.) Three of Harris's family members aver that Bullard informed them that Harris only faced between thirteen and eighteen years of imprisonment if he was found guilty. (ECF No. 76-2, at 1; ECF No. 76-3, at 1; ECF No. 76-5, at 1.) Bullard, however, contends that he told Harris that he would not be filing a motion to suppress, and that Harris's decision to reject the plea offer "was not connected to any advice given to him regarding any suppression motions." (Bullard Aff. ¶ 2.) Bullard's Affidavit is silent with respect to Harris's assertions regarding advice about his sentencing exposure.
This conflict raises factual issues that cannot be resolved on the current record, as a "determination that counsel's advice . . . was a strategic one is a factual determination requiring a credibility determination, or at least the receipt of evidence outside of the present record." United States v. Dickerson, 546 F. App'x 211, 214 (4th Cir. 2013) (citation omitted); see United States v. Robertson, 219 F. App'x 286, 286 (4th Cir. 2007) (citations omitted) (noting that an evidentiary hearing is generally "required when a movant presents a colorable Sixth Amendment claim showing disputed material facts and a credibility determination is necessary to solve this issue"). Throughout his pleadings, Harris maintains that he would have accepted the plea offer if counsel had provided a more accurate prediction of the likelihood of success on a motion to suppress, as well as advice regarding his potential sentencing exposure should he choose to go to trial. The sentence Harris received was considerably greater than the ten-year sentence provided in the plea offer. The Court simply lacks enough information to determine whether Bullard reasonably advised Harris about the likelihood of success on a motion to suppress prior to Harris's decision to reject the plea offer, as well as about potential sentencing exposure if he proceeded to trial. Accordingly, the Court is unable, at this juncture, to conclusively find that Harris is entitled to no relief. See 28 U.S.C. § 2255(b). Thus, Harris has made a sufficient threshold showing to warrant a hearing on these issues. Therefore, the Court will conduct an evidentiary hearing with respect to Claim One.
In Claim Two, Harris alleges that trial counsel "failed to object to the constructive amendment of Count One of the Superseding Indictment." (§ 2255 Mot. 5.) According to Harris, the Court constructively amended Count One by "instructing] [the jury] that it could find guilt if the evidence establishes beyond a reasonable doubt that the defendant entered into an agreement to manufacture, distribute or possess cocaine base with intent to distribute and manufacture was not charged in the indictment." (Id.) In Claim Three, Harris argues that counsel "failed to object to constructive amendment of the 924(c) counts 3 and 4 of the Superseding Indictment." (Id. at 7.) Harris argues:
An indictment is constructively amended if "either the government (usually during its presentation of evidence and/or its argument), [or] the court (usually through its instructions to the jury), or both, broadens the possible bases for conviction beyond those presented by the grand jury." United States v. Sampson, 140 F.3d 585, 589 (4th Cir. 1998) (alteration in original) (quoting United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994)). When considering whether a constructive amendment has occurred, "it is the broadening [of the bases for a defendant's conviction] that is important—nothing more." United States v. Mingo, 237 F. App'x 860, 866 (4th Cir. 2007) (alteration in original) (quoting Floresca, 38 F.3d at 711).
With respect to Claim Two, the record reflects that the Court first instructed the jury as to the specific charge alleged in Count One. The Court stated:
(Aug. 4, 2011 Tr. 576 (emphasis added).)
Here, the evidence against Harris overwhelmingly demonstrated that the conspiracy involved possession with intent to distribute and distribution of cocaine base. Any reference to manufacturing in this general conspiracy instruction was harmless. Any argument otherwise would have been without merit, and counsel cannot be faulted for failing to raise a meritless objection. United States v. Moore, 934 F.Supp. 724, 731 (E.D. Va. 1996). Because Harris has failed to demonstrate deficient performance of counsel or resulting prejudice, Claim Two will be dismissed.
With respect to Claim Three, the record reflects that the Court first instructed the jury as to the specific charges alleged in Counts Three and Four:
(Aug. 4, 2011 Tr. 579-80.) The Court then instructed the jury on the elements that the Government must prove beyond a reasonable doubt for the jury to convict Harris of Counts Three and Four. (Aug. 4, 2011 Tr. 581-82.) Subsequently, the Court provided a general instruction regarding the various factors the jury could consider when determining whether Harris had possessed the firearms in furtherance of a drug trafficking crime:
(Aug. 4, 2011 Tr. 587-89.)
Harris does not explain, and the Court cannot discern, how this general instruction, which provided several examples of how a firearm can be possessed in furtherance of drug trafficking, constructively amended Counts Three and Four of the Superseding Indictment. Nothing in this general instruction "broadened [the bases for conviction on Counts Three and Four] beyond those charged in the indictment." United States v. King, 270 F. App'x 261, 267 (4th Cir. 2008) (citing United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999)). Any argument otherwise would have been without merit, and counsel cannot be faulted for failing to raise a meritless objection. Moore, 934 F. Supp. at 731. Because Harris has failed to demonstrate deficient performance of counsel or resulting prejudice, Claim Three will be dismissed.
In Claim Seven, Harris argues that trial counsel was ineffective "for failing to present evidence needed to establish reasonable doubt as to the drug conspiracy." (§ 2255 Mot. 14.) With respect to this claim, Harris alleges that counsel "failed to subpoena witnesses to testify to the fact that cooperating witness Jimmell Jones stated that he would lie to keep himself out of prison." (Id.) In Claim Eight, Harris contends that trial counsel was ineffective "for failing to present evidence needed to establish reasonable doubt as to Counts Five and Six of the Superseding Indictment." (Id. at 15.) Specifically, Harris argues that counsel "failed to subpoena witnesses to testify to the fact that firearms charged in Count Five and Six were in fact theirs and that [Harris] had no knowledge to the fact of the firearms being in the residence where both search warrants, which at two separate times, were executed." (Id.) Because Claims Seven and Eight both concern counsel's alleged failure to subpoena witnesses, the Court will consider them together.
Harris fails to indicate that he specifically requested that counsel interview potential witnesses. He also "provides no concrete evidence of what [these witnesses] would have testified to in exculpation." United States v. Terry, 366 F.3d 312, 316 (4th Cir. 2004). Counsel avers that "[a]t no time did Cory Harris give me the names of witnesses who could impeach Jimmel Jones, a government witness." (Bullard Aff. ¶ 4.) Counsel further avers that Harris also did not "give [him] the names of witnesses who were willing to testify that the guns charged in this case were theirs, and that Mr. Harris had no knowledge of them." (Id.) For these reasons, Harris fails to demonstrate any deficiency of counsel. Moreover, given the substantial evidence against him, Harris has not demonstrated a reasonable probability that, but for counsel's failure to interview witnesses, the jury's verdict would have been different. Harris demonstrates neither deficiency of counsel nor any resulting prejudice, and Claims Seven and Eight will be dismissed.
In Claim Four, Harris asserts that appellate counsel was ineffective "for fail[ing] to raise constructive amendment on appeal." (§ 2255 Mot. 8.) Specifically, Harris contends that appellate counsel was ineffective for failing to raise the argument he has asserted in Claim Three. (Id.)
"In order to establish a claim that appellate counsel was ineffective for failing to pursue a claim on direct appeal, the applicant must normally demonstrate" that appellate counsel performed deficiently and that a reasonable probability of a different result exists. Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (citing Strickland, 466 U.S. at 688, 694). Counsel had no obligation to assert all non-frivolous issues on appeal. Rather, "`winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). A presumption exists that appellate counsel "`decided which issues were most likely to afford relief on appeal.'" Bell, 236 F.3d at 164 (quoting Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993)). "[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Id. (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)). The Court has already determined that Harris has failed to demonstrate that trial counsel was ineffective for failing to argue that the Court constructively amended Counts Three and Four of the Superseding Indictment. See supra Part II.A. Likewise, Harris has failed to show that the argument he urges here was stronger than the arguments counsel presented on appeal. See Bell, 236 F.3d at 164. Accordingly, Harris has demonstrated neither deficient performance nor prejudice, and Claim Four will be dismissed.
The Government correctly asserts that Harris's remaining claims (Claims Five, Six, Nine, and Ten) are barred from review here, absent a showing of cause and prejudice or actual innocence, because Harris could have raised, but did not raise, these claims on direct appeal. See Bousley v. United States, 523 U.S. 614, 622-23 (1998); see also United States v. Under, 552 F.3d 391, 397 (4th Cir. 2009) (internal quotation marks omitted) (citation omitted) (explaining that a petitioner who waives the right to appeal "is not precluded from filing a petition for collateral review. But he is precluded from raising claims that are the sort that could have been raised on appeal.").
In his Reply, Harris contends that appellate counsel's failure to raise the arguments asserted in Claims Five and Nine on direct appeal constitutes cause to excuse his default of those claims. (Reply 16-19, 24-25.) Harris has provided the Court with no argument to support a showing of cause and prejudice or actual innocence with respect to Claims Six and Ten. Accordingly, Claims Six and Ten will be dismissed. The Court considers Harris's assertion of cause with respect to Claims Five and Nine below.
In Claim Five, Harris argues that, with respect to Count Four, his Sixth Amendment rights were violated pursuant to the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). Harris states:
(§ 2255 Mot. 14.)
Harris was charged with and convicted of two separate violations of 18 U.S.C. § 924(c)(1)(A)(i) for possession of firearms in furtherance of a drug trafficking crime. (J. 1.) Under 18 U.S.C. § 924(c), a defendant who possesses a firearm in furtherance of a drug trafficking crime is subject to a consecutive mandatory minimum sentence of not less than five years. 18 U.S.C. § 924(c)(1)(A)(i). However, because Harris was convicted of a second or subsequent § 924(c) charge, he was subject to a consecutive mandatory minimum penalty of twenty-five years for the second conviction. Id. § 924(c)(1)(C). A defendant who is convicted of more than one § 924(c) violation in a single judgment is properly sentenced to the enhanced mandatory consecutive twenty-five year term for his second § 924(c) conviction. See United States v. Robles, 709 F.3d 98, 101 (2d Cir. 2013) (citations omitted).
In Alleyne, the Supreme Court held "that any fact that increases the mandatory minimum is an `element' that must be submitted to the jury." 133 S. Ct. at 2155. Alleyne, however, was decided after the Fourth Circuit had affirmed Harris's convictions and sentences. To the extent that Harris faults appellate counsel for failing to anticipate the Alleyne decision, "the case law is clear that an attorney's assistance is not rendered ineffective because he failed to anticipate a new rule of law." Kornahrens v. Evatt, 66 F.3d 1350, 1360 (4th Cir. 1995) (citations omitted).
Even so, Harris would not be entitled to relief. The Supreme Court has held that the Government need not allege prior convictions in an indictment and need not prove them beyond a reasonable doubt for a court to use those convictions for purposes of enhancing a sentence. Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998). "Finding that a defendant's convictions were `second or subsequent' [under 18 U.S.C. § 924(c)] is the same as finding that a defendant had a prior conviction, and the issue remains governed by Almendarez-Torres.'" United States v. King, 751 F.3d 1268, 1280 (11th Cir.) (citing United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013)), cert, denied, 135 S.Ct. 389 (2014). Therefore, no Alleyne or Sixth Amendment violation occurred, as the Court properly determined that Harris had committed a second or subsequent violation under 18 U.S.C. § 924(c). Because any argument otherwise by appellate counsel would have been futile, Harris cannot demonstrate that he was prejudiced by appellate counsel's failure to raise this argument on direct appeal. Harris has failed to establish cause and prejudice to excuse his default, and Claim Five will be dismissed.
In Claim Nine, Harris argues that the Supreme Court's ruling in Almendarez-Torres "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." (§ 2255 Mot. 15.) However, any argument by appellate counsel that Almendarez-Torres "must be overruled" would have been futile, as the Fourth Circuit is "not free to overrule or ignore the Supreme Court's precedents." United States v. Cheek, 415 F.3d 349, 353-53 (4th Cir. 2005) (citing State Oil Co. v. Khan, 522 U.S. 3, 20 (1997)). Thus, Harris cannot demonstrate that he was prejudiced by appellate counsel's failure to raise this argument on direct appeal. Because Harris has failed to establish cause and prejudice to excuse his default, Claim Nine will be dismissed.
For the foregoing reasons, the Court will conduct an evidentiary hearing as to Claim One. All other claims will be denied. Harris's Motion for Leave to File (ECF No. 76) will be granted. The Clerk will be directed to file the Reply (ECF No. 76-1) as a separate docket entry in this matter.
The Clerk is directed to send a copy of the Memorandum Opinion to counsel of record.
It is so ORDERED.
• Did Bullard convey his belief that there was no basis for filing a motion to suppress during or after the period of time in which Harris had to decide whether to accept or reject the Government's plea offer?
• What information concerning a potential sentence did Bullard convey to Harris?
