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October 12, 2004.

U.S., Defendant.

The opinion of the court was delivered by: CHARLES HAIGHT, District Judge


Defendant Roy William Harris has filed a pro se motion with the Court seeking relief from the sentence he is currently serving. Specifically, Harris asks the Court to consider a downward departure based upon the Second Circuit's recent decisions in United States v. Lauerson, 343 F.3d 604 (2d Cir. 2003), as amended in a further opinion reported at 348 F.3d 329 (2d Cir. 2003). In Lauerson and its companion case, United States v. Jackson, 346 F.3d 22 (2d Cir. 2003), the Second Circuit held for the first time that under the United States Sentencing Guidelines "in some circumstances an accumulation of somewhat overlapping enhancements, even if not amounting to [prohibited] double counting, can justify a downward departure" from a Guidelines-calculated sentence. Jackson, 346 F.3d at 26 (citing Lauerson). Harris contends that such circumstances are present in his case and that this Court should now consider and grant a downward departure from the sentence originally imposed upon him.

This case has generated a number of opinions by this Court and the Court of Appeals. The Supreme Court has declined to hear the case. The circumstances relevant to Harris's present motion are fully stated in the two most recent opinions, familiarity with which is assumed: this Court's opinion in Harris s. United States, 293 F.Supp.2d 259 (S.S.N.Y. 2003) ("Harris I"), and the Second Circuit's opinion in Harris v. United States, 367 F.3d 74 (2d Cir. 2004) ("Harris II").

  In Harris I defendant, represented by counsel newly come to the case, sought to challenge this Court's Guidelines calculation of his sentence through the procedural vehicle of a motion under Rule 60(b)(6), which, following five specific grounds for relief inapplicable to the case at bar, affords relief from a prior judgment for "any other reason justifying relief from the operation on the judgment." The government opposed that motion, arguing that it was procedurally barred and in any event lacked merit. I thought it right to consider both questions, and accepted both government arguments. Thus I concluded my opinion in Harris I denying Harris relief by saying: "Accordingly, I would hold that if, contrary to the conclusion reached in Part I, Harris's motion was not procedurally barred, the motion is without merit." 293 F.Supp. 2d at 284-285 (footnote omitted).

  In Harris II, an opinion dated May 4, 2004, the Second Circuit affirmed the substantive result in Harris I denying Harris Rule 60(b) relief, but remanded the case for procedural retooling. Specifically, the Court of Appeals said: "Because Harris's Rule 60(b) motion attacked the integrity of his previous habeas proceeding (albeit unsuccessfully), it should simply have been denied with prejudice. . . . [W]e vacate the judgment of the district court denying Harris's Rule 60(b) motion as procedurally barred and remand with instructions to deny the motion with prejudice." 367 F.3d at 82. Obedient to that instruction, this Court entered an order dated August 2, 2004, reciting that "petitioner's Rule 60(b) motion is denied with prejudice."

  On June 16, 2003, the same Second Circuit panel (Newman, Winter, and B.D. Parker, Jr., Ct. JJ.), had heard arguments in Lauerson and Jackson. The first opinion in Lauerson was dated September 15, 2003, and the amended opinion was filed on November 25, 2003. The opinion in Jackson was filed on October 1, 2003. Judge Newman wrote all three opinions. As noted, Harris relies upon the Second Circuit's overlapping enhancement ruling in Lauerson as the basis for his present motion for relief from his sentence in the form of a downward departure.

  Harris's present motion is contained in a letter dated August 5, 2004, addressed to this Court and accompanied by a certificate of service reciting that on August 4 a copy was mailed to the United States Attorney for this District. Harris's letter does not bear a docket number. Its first paragraph says to the Court: "Please accept the following letter as a Motion to be styled in accordance with and pursuant to such appropriate rule as your Honor may deem proper in order to grant relief."

  It is entirely appropriate that Harris, now appearing pro se, asks this Court to identify, if possible, an appropriate procedural vehicle for the relief he is seeking. My responsibility for the just administration of this case is a continuing one. Moreover, the procedural question is not a simple one; as this case shows, it is capable of vexing federal district and circuit judges. In Harris II the Second Circuit was kind enough to say that my "exhaustive opinion" in Harris I "recognized the procedural intricacies of the case," set itself to "consider again how district courts should give effect to the protections of Rule 60(b) with respect to previous habeas proceedings without allowing unsuccessful habeas petitioners to bypass the procedures of AEDPA," and in the course of that consideration found it necessary to clarify what it meant to say in its earlier opinion in Rodriguez v. Mitchell, 252 F.3d 191 (2d Cir. 2001). No wonder, then, that Harris, writing to the Court from his place of incarceration and without the advice of counsel, asks me to place his motion in the proper procedural pigeonhole, if in fact such a pigeonhole exists.

  The government, although served with a copy of Harris's letter motion, has not responded to it. The AUSA in charge of the case informally advised my Chambers of the government's view that Harris has no available procedural avenue, and that accordingly the government would not respond to his motion unless directed to do so. That was appropriate conduct on the government's part. The purpose of this Memorandum is to consider whether the government should be directed to respond formally.

  I begin with the preliminary view that the proper proceeding in which to lodge Harris's present motion is his civil action against the government bearing docket number 97 Civ. 1904, that being the case in which this Court decided Harris I. Moreover, I think it right to regard this motion as a second motion for relief under Rule 60(b)(6), based upon an entirely different ground from that underlying Harris's motion under the Rule in HARRIS I. Construing Harris's present application as a second Rule 60(b) motion does not trigger an automatic procedural bar since, unlike habeas petitions governed by the AEDPA, there is no statutory prohibition against successive Rule 60(b) motions.

  Moreover, there may be genuine substance to Harris's claim for sentencing relief. I use the phrase "may be" because I express no present view with respect to whether the sort of overlapping Guidelines enhancements which the Second Circuit held in Lauerson and Jackson empowered the sentencing judges in those cases to consider downward departures are also present in Harris's case. Unless and until I conclude that it is procedurally permissible for Harris to argue that those cases apply to his, it would be inappropriate for me to express an opinion on that argument's merits. But I can properly say that while the Arochem fraud Harris engineered was egregious and the economic losses inflicted upon the lending banks enormous, the statutes of conviction and the Guidelines combined to mandate the imposition upon the perpetrator of this non-violent offense who had no prior criminal record a sentence that may reasonably be regarded as draconian. It follows that if the Second Circuit had decided Lauerson and Jackson before I sentenced Harris, and the rationale of those cases applied to the Guidelines calculations of Harris's sentence, I would have given serious consideration to a downward departure. While I put the proposition no higher than that, it is sufficient to require an equally serious consideration of Harris's present motion.

  Presumably the government contends that Harris's present motion is procedurally barred for the reasons most recently stated by the Second Circuit in Harris II. At first blush, certain language in Harris II may be read as favorable to Harris. Thus Judge Jacobs's opinion observes that the question "[w]hen should a Rule 60(b) motion to reopen a habeas proceeding be construed as `a second or successive' habeas petition under AEDPA" has "elicited inconsistent answers across the circuits." 367 F.3d at 79. While three circuits "have adopted the view that, regardless of the substance of its allegations, such a motion is always `a second or successive' habeas petition under AEDPA," id. (emphasis in original) (citations omitted), "[o]ther circuits have adopted more flexible approaches that look to the underlying substance of the Rule 60(b) motion in order to determine if it is tantamount to `a second or successive' habeas petition under AEDPA." Id. (footnote and citations omitted). Harris II points out that in Rodriguez, 252 F.3d at 191, the Second Circuit followed the latter approach, a surface flexibility that might appear to assist Harris. But the substance of the procedural rule in this circuit must also be considered. The present procedural rule in the Second Circuit, declared by Rodriguez, Gitten v. United States, 311 F.3d 529 (2d Cir. 2002), and Harris II, is that "an attack on the integrity of a previous habeas proceeding using subsection (6) of Rule 60(b) is viable," but "only in `extraordinary circumstances,'" Harris II, 367 F.3d at 77. Moreover, that limited procedural viability depends upon the movant's ability to characterize his Rule 60(b) motion as in fact "an attack on the integrity of a previous habeas proceeding." If the Rule 60(b) motion is properly construed as an attack upon the movant's underlying criminal conviction, including his sentence, the movant's procedural posture is less favorable. The Second Circuit made that plain in Harris II, 367 F.3d at 81 n. 5:
Of course, with or without "extraordinary circumstances," a Rule 60(b) motion to reopen a habeas proceeding that attacks the underlying conviction but not the original proceeding mst either be (i) treated as "a second or successive" habeas petition, or (ii) denied "as beyond the scope of Rule 60(b). See Gitten, 311 F.3d at 534.
In the text of the Gitten opinion, the Second Circuit gives trial judges some advice about how they should proceed in such circumstances. See Harris II, 367 F.3d at 82. I do not discuss that advice in this Memorandum, which as I have said has a more limited purpose.

  In Harris II the Second Circuit concluded that Harris's Rule 60(b) motion asserting the incompetence of counsel at the original habeas proceeding "arguably attacks the integrity of Harris's habeas proceeding," id. at 80, and accordingly went on to consider and then deny the motion on its merits: "In the absence of any extraordinary circumstance under Rule 60(b)(6), we conclude that Harris's Rule 60(b) motion failed in its attack on the integrity of the habeas proceeding." Id. at 82.

  Two potential problems with Harris's present motion may be preliminary noted. First, assuming without deciding that the Guidelines calculation of Harris's sentence involved the same sort of overlapping enhancements that might justify a downward departure under Lauerson and Jackson, the Second Circuit decided Lauerson and Jackson on direct appeal. Indeed, it was only because the government's cross-appeal in Lauerson succeeded, restoring an enhancement that the trial judge had disallowed, that the overlapping enhancements issue which Judge Newman's opinions address arose. The procedural avenue of direct appeal is not open to Harris. Second, if the only purpose of Harris's present ...

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