Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

HARRIS v. U.S.

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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.