The facts underlying Harmon's § 924(c) conviction were set forth in a January 21, 1993 Decision and Order of this court that denied Harmon's motion for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(c). Familiarity with that decision is assumed.
A review of those facts makes plain that the evidence in this case was more than sufficient to sustain Harmon's conviction. As stated in my January 1993 decision, there was eyewitness testimony that Harmon approached a bank teller, Linda Ndebi, and "motioned with his eyes, to his hand. Upon looking in that direction, Ndebi saw a gun in the defendant's right hand, resting on the counter." Ndebi also "testified that the barrel of the gun was pointing straight at her for the duration of the robbery." United States v. Harmon, 92-CR-60L, slip op. at 1-2 (W.D.N.Y. Jan. 21, 1993).
As stated, the Court in Bailey stated that "use" of a firearm includes "brandishing" or "displaying" it in a way that "makes the firearm an operative factor in relation to the predicate offense." That is precisely what Harmon did, and no reasonable argument can be made to the contrary. In fact, Harmon does not make such an argument. He simply cites Bailey and asks that his conviction be vacated, as if Bailey had declared § 924(c) unconstitutional. All that the Court did in Bailey was to clarify what must be proven to sustain a conviction under the statute. The proof in this case was more than adequate. See Bailey, 516 U.S. at 148 ("the silent but obvious presence of a gun on a table can be a 'use'"); see also United States v. Washington, 106 F.3d 1488, 1490 (9th Cir.) (upholding § 924(c) conviction based on defendant's knowledge during bank robbery that his fellow robber was openly displaying firearm), cert. denied, 139 L. Ed. 2d 135, 118 S. Ct. 197 (1997); United States v. Price, 76 F.3d 526, 529-30 (3d Cir. 1996) (same); cf. United States v. Jones, 84 F.3d 1206, 1211 (9th Cir.) (defendant's statement to bank tellers that he had a gun was sufficient to support § 924(c) conviction, even though no one saw the gun during the robbery), cert. denied, 136 L. Ed. 2d 319, 117 S. Ct. 405 (1996).
Moreover, it is also beyond dispute that Harmon carried the firearm during the robbery, since the teller testified that he was holding it in his hand. The indictment charged Harmon both with using and carrying a firearm, and the verdict form asked whether the jury found Harmon guilty of using and carrying a firearm. Bailey did not address the meaning of the word "carry" in § 924(c)(1) or alter existing case law concerning that prong of the statute, and using the common-sense definition of that word, it is obvious that Harmon's conviction can be sustained on that basis as well.
II. Sentencing Issues
Harmon next asks the court to "order that defendant's point level and criminal conviction that was used for enhancement as a career criminal be expunged." Defendant's Motion at 2. Although none of his claims in this regard appear to have any merit, I will not decide them on the merits because it is clear that I lack jurisdiction over these claims. Rule 35(c) of the Federal Rules of Criminal Procedure allows the sentencing court, "acting within 7 days after the imposition of sentence, [to] correct a sentence that was imposed as a result of arithmetical, technical, or other clear error." The Second Circuit has held "that the seven-day period provided for in Rule 35(c) is jurisdictional." United States v. Abreu-Cabrera, 64 F.3d 67, 73 (2d Cir. 1995) (citing United States v. Werber, 51 F.3d 342, 348 (2d Cir. 1995)). I therefore have no jurisdiction to alter Harmon's sentence at this point. Moreover, the issues raised by Harmon all could have been raised on his direct appeal, and his failure to do so (no reason for which is given in his papers) bars him from raising these issues now. United States v. Pipitone, 67 F.3d 34, 38 (2d Cir. 1995); Douglas v. United States, 13 F.3d 43, 46-47 (2d Cir. 1993).
III. Custody Issues
Harmon further requests that the court direct the Bureau of Prisons to lower his custody classification level. This claim is also dismissed. Harmon has not alleged that his current classification is in any way unlawful, and he has no liberty interest in any particular classification. Slezak v. Evatt, 21 F.3d 590, 594 (4th Cir.), cert. denied, 513 U.S. 889, 130 L. Ed. 2d 158, 115 S. Ct. 235 (1994); Meyer v. Reno, 911 F. Supp. 11, 16 (D.D.C. 1996). Moreover, there exists an administrative avenue of relief through the Bureau of Prisons' Administrative Remedy Program, see 28 C.F.R. §§ 542.10-542.19, and there is no evidence that Harmon has pursued such relief.
Defendant's petition for a writ of habeas corpus is dismissed.
Further, because the issues raised in the petition are not the type that a court could resolve in a different manner, and because these issues are not debatable among jurists of reason, this court concludes that the petition presents no federal question of substance worthy of attention from the Court of Appeals and, therefore, pursuant to 28 U.S.C. § 2253 and Fed. R. App. P. 22(b), this court denies a certificate of probable cause. Finally, because it appears that any appeal would not be taken in good faith, leave to appeal in forma pauperis will be denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
April 29, 1998.
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