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HARRIS v. UNITED STATES

April 7, 1998

PHILLIP HARRIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge :

 Petitioner, pro se, brings this motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. *fn1"

 On October 24, 1989, Indictment 89 Cr. 807 was filed in three counts, against Phillip Harris ("Harris" or "Petitioner"). Count One charged Harris, Wallace Donald Matura ("Matura") and Steven Burgess ("Burgess") with conspiracy to distribute and possess with intent to distribute more than one kilogram of phencyclidine ("PCP"), in violation of Title 21, United States Code, Section 846. Count Two charged Harris, Matura and Burgess with distributing and possessing more than one kilogram of PCP in violation of Title 21, United States Code, Section 812, 841(a)(1), and 841(b)(1)(A). Count Three charged Harris with using and carrying a firearm during and in relation to a drug trafficking crime in violation of Title 18, United States Code, Section 924(c).

 On March 31, 1989, after a six day trial, the jury convicted Harris, Matura and Burgess on Counts One and Two, and acquitted Harris on Count Three. This Court sentenced Harris to a prison term of 264 months. On direct appeal, Harris challenged his sentence as improper because the offense level involved PCP not seized from him but rather distributed during the conspiracy. In addition, Harris challenged the two level enhancement for his role in the offense as a manager and/or supervisor of a drug conspiracy. His sentence was affirmed on appeal. See United States v. Harris, Matura, and Burgess, No.90-1490 (2d Cir. Feb. 5, 1991).

 On May 29, 1997, Harris filed the petition currently before this Court. In his motion Harris asserts six arguments. First, Harris claims that there was insufficient evidence presented at trial of his participation in the Count One conspiracy to distribute PCP to sustain the conviction. Memorandum of Law in Support of Petitioner's writ of Habeas Corpus Title 28, U.S.C. § 2255 Motion, to Vacate, Set Aside, or Resentence Petitioner ("Pet. Br.") at 2. Second, Harris claims that there is newly discovered evidence regarding alleged misconduct on the part of certain Drug Enforcement Agency ("DEA") Special Agents, John McKenna and Jonathan Wilson, prior to and during the trial, which entitles him to a new trial. Id. Third, Harris asserts that his trial counsel was ineffective because he did not investigate the backgrounds of the DEA agents, and that his appellate counsel was ineffective as well. Id. Fourth, Harris claims that DEA Special Agent Jonathan Wilson perjured himself during the trial. Id. Fifth, Harris contends that he was denied his right to testify by his trial counsel. Id. Finally, Harris argues that this Court's use of the word "failure" in a jury instruction discussing the Government's burden of proof "exacted an impermissible toll" on his exercise of his constitutional right not to testify. Id.

 For the reasons discussed below, all of Petitioner's claims are without merit, and therefore, his motion is denied.

 DISCUSSION

 Harris' first claim is that there was insufficient evidence to convict him of Count One, the conspiracy to distribute more than one kilogram of PCP. This issue was not raised on direct appeal and therefore is procedurally barred. Where petitioner has failed to raise a claim on direct appeal, the claim is barred unless the petitioner can establish "cause and prejudice" for the default of normal appellate procedure and "prejudice" flowing from the alleged error. Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992). Harris has established neither cause for his default nor prejudice from the alleged error in light of the abundance of evidence presented at trial and therefore, this claim must be denied.

 Harris' second argument is that he is entitled to a new trial because the Government withheld evidence of misconduct by DEA agents John McKenna and Jonathan Wilson who both testified at Harris' trial. He claims that Special Agents McKenna and Wilson were "both involved in stealing money, coercing witnesses, etc., and that both agents were under investigation prior to and during [the] trial in this instant case." Pet. Br. at 14. Harris does not state the source of his information, however the Government and this Court believe that he is referring to the 1991 publicized allegations of misconduct by members of former group 33 of the DEA, of which Special Agents McKenna and Wilson were a part. *fn2"

 In order for Petitioner to be entitled to the extraordinary relief of a new trial, he must establish that the new evidence directly contradicts the Government's case. "'The discovery of new evidence which merely discredits a government witness and does not directly contradict the government's case ordinarily does not justify the grant of a new trial.'" United States v. Spencer, 4 F.3d 115, 119 (2d Cir. 1993) (quoting United States v. Sposato, 446 F.2d 779, 781 (2d Cir. 1971)). A petitioner seeking a new trial based on the discovery of new evidence bears a "stringent" burden. United States v. Parness, 408 F. Supp. 440, 443 (S.D.N.Y. 1975), aff'd, 536 F.2d 474 (2d Cir.), cert. denied, 429 U.S. 820, 50 L. Ed. 2d 81, 97 S. Ct. 67 (1976). Such motions "based upon previously undiscovered evidence [are] ordinarily 'not favored and should be granted only with great caution.'" United States v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975)(quoting United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 357 U.S. 937, 2 L. Ed. 2d 1551, 78 S. Ct. 1385 (1958).

 For a petitioner to succeed on such a motion, he must show that the evidence could not have been discovered, exercising due diligence, before or during the trial, and that "the evidence is so material and non-cumulative that its admission 'would probably lead to an acquittal.'" United States v. Siddiqi, 959 F.2d 1167, 1173 (2d Cir. 1992) (quoting United States v. Alessi, 638 F.2d 466, 479 (2d Cir. 1980)). "The 'orderly administration of justice requires finality of judgment rendered after a trial unless injustice results. The findings of the trier of fact . . . should not be disturbed on motions for a new trial based upon allegedly newly discovered evidence except for the most extraordinary circumstances.'" United States v. Ochs, 548 F. Supp. 502, 512 (S.D.N.Y. 1982) (quoting United States v. Fassoulis, 203 F. Supp. 114, 117 (S.D.N.Y. 1962)).

 Harris' claim fails to satisfy these standards. The allegations concerned alleged misconduct of Special Agent McKenna and not Special Agent Wilson. The allegations of misconduct occurred ten months after the conclusion of Harris' trial and none of the allegations concern Harris or this case. *fn3" Thus, these allegations cannot supply the basis for a successful motion for a new trial unless those allegations fall within the doctrine articulated by the Supreme Court in Mesarosh v. United States, 352 U.S. 1, 1 L. Ed. 2d 1, 77 S. Ct. 1 (1956). In Mesarosh the Supreme Court based its decision to order a new trial on the Government's own conclusion that its witness was unreliable. Id. at 9. Here, ...


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