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HARRIS v. U.S.

United States District Court, S.D. New York


August 5, 2005.

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

The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge

OPINION AND ORDER

The petitioner, Tracy Harris ("Harris"), presently in custody and subject to a sentence imposed by this Court, seeks to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The petition is denied for the reasons set forth below.

BACKGROUND

  On April 8, 2000, a grand jury returned Indictment 00 Cr. 105, which charged Harris and 13 co-defendants with conspiracy to distribute and possess with intent to distribute five kilograms and more of cocaine and 50 grams and more of "crack," in violation of Title 21, United States Code, Sections 812, 841(a)(1), 841(b)(1)(A), and 846. On September 22, 2000, the Government filed a two-count Superseding Information against Harris. The Information charged Harris in Count One with distributing and possessing with intent to distribute mixtures and substances containing cocaine base, in violation of Title 21, United States Code, Sections 812, 841(a)(1), 841(b)(1)(C); and in Count Two with using a communication facility (a telephone) in committing the felony of conspiring to distribute and possess with intent to distribute cocaine base, in violation of Title 21, United States Code, Section 843(b). On September 22, 2000 — the same day the Government filed the Superseding Information — Harris waived indictment and pled guilty to both counts in the Superseding Information pursuant to a plea agreement. In the plea agreement, Harris stipulated that his offense involved more than 1.5 kilograms of crack, which resulted in a base offense level of 38, pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1. (Plea Agreement ("Plea Agmt."), dated Sept. 22, 2000, at 3, attached as Ex. B to Government Memorandum of Law ("Gov. Mem."), dated Mar. 14, 2005.) Harris stipulated to a two-level enhancement for possession of firearms in connection with the offense, a four-level enhancement for organizing and leading a criminal activity that involved five or more participants, and a two-level adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a). (Id.) Thus, Harris's adjusted offense level was 42. (Id.)*fn1

  Harris and the Government agreed that under the Sentencing Guidelines Harris had a Criminal History Category of III, and that his Stipulated Guidelines range was therefore 360 months to life imprisonment. (Id. at 4.) The parties further agreed that because the statutory maximum penalties for the violations of 21 U.S.C. § 843(b) and 21 U.S.C. § 841(b)(1)(C) were 48 months and 240 months, respectively, Harris's total statutory maximum sentence was 288 months. (Id.) Thus, pursuant to U.S.S.G. § 5G1.1(a),*fn2 the plea agreement provided for a sentence of 288 months. (Id.)

  In the plea agreement, Harris also agreed that "neither a downward nor an upward departure from the Stipulated Guidelines Sentence (288 months)" was warranted, and that he would not "seek such a departure or seek any adjustment not set forth" in the plea agreement. (Id. at 4.) Harris further agreed that he would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence at or below the Stipulated Guidelines Sentence set forth above (288 months)." (Id. at 5.)

  In consideration for Harris's plea, the Government promised to refrain from further prosecuting Harris for (1) his actions charged in both counts of the Superseding Information; (2) Count One of the original Indictment, 00 Cr. 105, and any relevant drug trafficking conduct in 1998 in connection with the conspiracy charged therein; (3) conspiring to distribute and possess with intent to distribute hydromorphone (Dilaudid) as charged in Indictment 00 Cr. 106 (SHS); and (4) possessing firearms in connection with the offenses charged in the original Indictment 00 Cr. 105. (Id. at 2.) The parties agreed that the drug trafficking conduct set forth in (2) and (3) constituted relevant conduct under the Sentencing Guidelines, and that possession of firearms constituted a specific offense characteristic under the Sentencing Guidelines, all of which would be considered by the Court at the time of sentencing. (Id.)

  On February 8, 2001, in accordance with the plea agreement, this Court sentenced Harris to 288 months in prison. Shortly thereafter, and despite the terms of his plea agreement, Harris filed a notice of appeal. The Government moved for summary affirmance, arguing that Harris did not have any non-frivolous claims on appeal. On December 23, 2002, the Second Circuit granted the Government's motion and summarily affirmed Harris's conviction and sentence. See United States v. Daniels (Tracy Harris), 53 Fed. Appx. 591 (2d Cir. 2002). Harris did not seek a writ of certiorari from the Supreme Court.

  On November 17, 2003, Harris, proceeding pro se, petitioned this Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Harris asserts four separate grounds for relief. First, Harris contends that he was deprived of the effective assistance of counsel because his counsel "failed to reserve petitioner rights at every stage of the proceedings thus compromising that guarantee proscribe[d] in/by 6th Amendment of the United States Constitution." (Harris's Petition Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Harris Pet."), dated Oct. 14, 2003, at 5.) Specifically, he asserts that his counsel was ineffective in failing to make an argument that would have allowed Harris to receive credit for acceptance of responsibility. (Harris's Brief in Support of a Petition Pursuant to 28 U.S.C. § 2255 ("Harris Supp. Br."), dated Mar. 1, 2005, at 3-6; Harris's Reply Letter ("Harris Letter"), dated Apr. 11, 2005, at 1-4.) Second, Harris contends that the Government and the Court breached the plea agreement, which stated that he was entitled to a two-level reduction for his acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a). (Harris Supp. Br. at 6-9.) Third, Harris maintains that the remedial opinion in United States v. Booker, 125 S. Ct. 738 (2005), renders his sentence unconstitutional and warrants resentencing. (Harris Pet. at 5; Harris Supp. Br. at 10-27; Harris Letter at 4-7.) Finally, Harris argues that the Superseding Information was deficient because it lacked a sworn affidavit. (Harris Pet. at 8-10.)

  The Government filed a Memorandum of Law in opposition to Harris's petition on March 15, 2005, in which it contends that Harris's petition is without merit and should be denied without a hearing. On April 4, 2005, the Government responded by letter to Harris's Brief in Support of a Petition Pursuant to 28 U.S.C. § 2255. The matter became fully submitted on April 18, 2005, when Harris submitted a reply letter.

  DISCUSSION

  I. Standard of Review

  In reviewing the instant petition, this Court is mindful that Harris has proceeded pro se in submitting his petition and brief. For this reason, Harris's submissions will be "liberally construed in his favor," Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)), and read "to raise the strongest arguments that they suggest," Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citation omitted).

  Section 2255 of Title 28 of the United States Code ("Section 2255") provides, in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255.

  II. Harris's Waiver of his Right to Seek Relief Pursuant to Section 2255 was Valid and Enforceable

  This Court sentenced Harris after he entered into a plea agreement in which he expressly waived his right to litigate, under Title 28, United States Code, Section 2255, any sentence at or below the Stipulated Sentence of 288 months. (Plea Agmt. at 5.)

  A defendant's knowing and voluntary waiver of his right to collaterally attack his sentence is generally enforceable. See, e.g., Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195-96 (2d Cir. 2002), cert. denied, 537 U.S. 1146 (2003); Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001) (per curiam). As the Second Circuit has stated, permitting a defendant who secured the benefits of a valid and enforceable plea agreement "to escape the fairly bargained-for consequence of [his] agreement with the government would render the plea bargaining process and the resulting agreement meaningless." United States v. Monzon, 359 F.3d 110, 117 (2d Cir. 2004) (internal quotation marks and citation omitted).

  However, "a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured." See Frederick, 308 F.3d at 195; see also United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001). Merely asserting ineffective assistance of counsel, however, does not automatically render a plea agreement unenforceable. See Monzon, 359 F.3d at 118. Where the record reveals that the waiver was knowing and voluntary, and that there is no merit to the ineffective assistance claim, the waiver should be enforced. Id. at 119.

  This Court accepted Harris's guilty plea at a hearing on September 22, 2000. Prior to accepting the plea, the Court placed Harris under oath and ascertained that he was competent to enter a plea. (Transcript of Sept. 22, 2000 Plea Hearing ("Plea Tr.") at 2, 17, 19, attached as Ex. C to Gov. Mem.) The Court then determined that Harris had sufficient time to discuss the charges with his attorney, and that he was satisfied with the legal advice and representation he had been provided in the case. (Id. at 6-7.) In response to the Court's questioning, Harris confirmed that he had read and discussed the plea agreement with his attorney, and that his attorney had answered any questions he had about the agreement. (Id. at 7.) Harris also acknowledged that he fully understood the plea agreement, and that he entered into it voluntarily. (Id. at 7-8.) Additionally, Harris confirmed his understanding that he would not litigate a sentence of 288 months. (Id. at 11.)

  Harris showed by his statements at the plea hearing that he knowingly and voluntarily waived his right to attack collaterally his sentence under Section 2255. Although Harris has raised an ineffective assistance of counsel claim in the instant petition, he does not argue and nothing in the record suggests that he received ineffective assistance of counsel in connection with the plea negotiations or plea proceedings. Accordingly, the provision of Harris's plea agreement waiving his right to litigate a sentence of 288 months under Section 2255 prevails and the Court dismisses the instant petition.

  III. Harris's Claims are Procedurally Barred or Without Merit

  Even if Harris's petition did not explicitly violate the terms of his plea agreement, each of the arguments he makes in his Section 2255 petition and reply papers would nonetheless fail. These arguments are analyzed below.

  A. Ineffective Assistance of Counsel

  Harris argues first that he was deprived of his constitutional right to effective assistance of counsel because his counsel failed to argue at sentencing that the Court should depart downward for acceptance of responsibility from the Stipulated Sentence of 288 months and that an evidentiary hearing is required to determine whether his counsel was aware that the Court could depart under U.S.S.G. § 5G1.1(a)*fn3 and, if counsel was aware, why he did not so argue. (Harris Supp. Br. at 3-6; Harris Letter at 1-4.) In general, the benchmark for judging an ineffective assistance of counsel claim is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). To obtain reversal of a conviction due to ineffective assistance of counsel, a petitioner must demonstrate (1) that his counsel's performance was deficient; and (2) that the deficient performance prejudiced the petitioner. See id. at 687. To satisfy the first prong of the Strickland test, a petitioner must show that his attorney's performance "fell below an objective standard of reasonableness" under "prevailing professional norms." Id. at 688. Under the second prong, the petitioner must "show? that counsel's errors were so serious as to deprive the defendant of a fair trial," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687, 694.

  Harris maintains that, in light of United States v. Rodriguez, 64 F.3d 638 (11th Cir. 1995), and cases cited therein, counsel was ineffective because he did not argue that Harris should receive a two-level reduction in offense level for acceptance of responsibility, taken from the Stipulated Sentence of 288 months. (Harris Supp. Br. at 6.)*fn4 In Rodriguez, the Eleventh Circuit held "that a district court has the discretion to reward a defendant's acceptance of responsibility by departing downward when [U.S.S.G.] § 5G1.1(a) renders [U.S.S.G.] § 3E1.1 ineffectual in reducing the defendant's actual sentence." Rodriguez, 64 F.3d at 643. Thus, Rodriguez explains that a district court's decision to depart downwardly where a defendant's acceptance of responsibility is negated because his statutory maximum sentence is lower than his adjusted Guidelines range is discretionary not mandatory. See id. at 643.

  Harris's claim that his counsel was ineffective in failing to argue for a downward departure for acceptance of responsibility from the Stipulated Sentence of 288 months does not satisfy the Strickland standard. If counsel had argued under Rodriguez for a reduction in Harris's sentence, counsel, who co-signed the plea agreement with Harris, clearly would have been in breach of the plea agreement's provision for a Stipulated Sentence of 288 months. Such a breach of the plea agreement would have permitted the Government to opt to prosecute Harris under Count One of the original Indictment — distributing 50 grams and more of "crack" cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846 — which has a maximum sentence of life imprisonment and a Guidelines range of 360 months to life, far exceeding the 240-month maximum sentence for violating 21 U.S.C. § 841(b)(1)(C) and the additional 48-month maximum sentence for violating 21 U.S.C. § 843(b), as charged in the Superseding Information.*fn5 In addition, at the trial the Government would have had the right to use Harris's admissions of guilt during his plea allocution on September 22, 2000. Harris's counsel's failure to take such a disastrous course obviously does not fall below "an objective standard of reasonableness" under "prevailing professional norms." Strickland, 466 U.S. at 688. Nor could Harris be prejudiced by counsel's failure to do so. Accordingly, no evidentiary hearing is necessary and Harris's ineffective assistance of counsel claim is denied. B. Breach of plea agreement

  Harris next argues that the Government breached the plea agreement in failing to provide for a reduction from his Stipulated Sentence of 288 months for acceptance of responsibility. (Harris Supp. Br. at 6-9.) Harris's contention is without merit, however, because the two-level reduction for acceptance of responsibility as set forth in the plea agreement was used solely for the purpose of calculating the Sentencing Guidelines range for the crimes in the Superseding Information, pursuant to U.S.S.G. § 1B1.4. (Plea Agmt. at 3.) The reduction for acceptance of responsibility in the plea agreement did not apply to the Stipulated Sentence of 288 months, which, pursuant to U.S.S.G. § 5G1.1(a), trumped the calculation of the Sentencing Guidelines range for the crimes charged in the Superseding Information.

  Harris's plea agreement clearly states that the Defendant's Stipulated Sentence is 288 months. (Plea Agmt. at 4.) Moreover, as indicated previously, the parties expressly agreed that "neither a downward nor an upward departure from the Stipulated Guidelines Sentence (288 months) is warranted." (Id.) In fact, to deviate from this 288-month sentence would have been a breach of the plea agreement. Thus, the contention that the Government breached the agreement in failing to conform with its explicit terms is entirely without merit.*fn6 C. United States v. Booker

  Harris next claims that his sentence should be reconsidered in light of the Supreme Court's decision in United States v. Booker, 125 S. Ct. 738 (2005).*fn7 (Harris Supp. Br. at 10, 12-15, 26; Harris Letter at 4-7.) Harris maintains that his sentence was unconstitutionally enhanced based on the drug quantity involved, his leadership role, and his possession of firearms in connection with the offense, facts which he asserts were neither proven to a jury nor admitted by him. (Harris Supp. Br. at 10, 12-15, 26.)

  In United States v. Guzman, 404 F.3d 139 (2d Cir. 2005), the Second Circuit directly held that Booker does not apply retroactively to cases on collateral review where the petitioner's conviction was final as of January 12, 2005, the date Booker was decided. Id. at 144. Because Harris did not seek a writ of certiorari, his conviction became final on March 24, 2003, 90 days after the Second Circuit summarily affirmed his sentence. Therefore, Harris's contention that Booker should be applied retroactively to his sentence is without merit.

  D. Deficiency of Charging Statement

  Finally, Harris alleges in his petition that the Information to which he pled guilty was deficient because it lacked an affidavit. (Harris Pet. at 8-10.) This claim is procedurally barred as it was not raised on appeal, and Harris has failed to set forth any supporting facts in his petition which might show the requisite cause and prejudice. Even if the claim was not barred, there is no requirement that an affidavit must accompany an Information. Therefore, this claim must fail. CONCLUSION

  For the reasons stated above, Harris's § 2255 petition is denied. Because Harris has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue, see 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000); Soto v. United States, 185 F.3d 48, 51-53 (2d Cir. 1997), and the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Opinion and Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962).

  IT IS SO ORDERED.


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