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HARRIS v. U.S.

August 10, 2005.

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



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

OPINION AND ORDER

Pro se petitioner, Troy 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 on the ground that he was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution. Harris also moves for an order requiring "all entities participating in the above captioned matter to prove their corporate existence, solvency, and capacity to sue or be sued according to Federal Rule of Civil Procedure 9(a)." Harris's petition and motion are denied for the reasons set forth below.

BACKGROUND

  On April 8, 2000, a grand jury returned Indictment 00 Cr. 105, which charged Harris, his brother Tracy Harris, and 12 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 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846.

  On September 22, 2000, Harris pled guilty to the Indictment pursuant to a plea agreement with the Government.*fn1 In the plea agreement, Harris and the Government stipulated that the offense involved Harris's distribution of 1.5 kilograms and more of crack, which resulted in a base offense level of 38, pursuant to Section 2D1.1(c)(3) of the United States Sentencing Guidelines ("U.S.S.G."). (Plea Agreement (Plea Agmt."), dated Sept. 21, 2000, at 3.) The parties stipulated to a two-level adjustment for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a), and agreed that Harris could move for a reduction of an additional point, pursuant to U.S.S.G. § 3E1.1(b)(2). (Plea Agmt. at 3.) Harris and the Government agreed that Harris had a Criminal History Category of II, and that if his motion under U.S.S.G. § 3E1.1(b)(2) was granted, his Stipulated Guidelines range was 188 months to 262 months. (Plea Agmt. at 4.)

  In consideration for Harris's plea, the Government agreed not to file a Prior Felony Information, pursuant to 21 U.S.C. § 851, in connection with Harris's prior narcotics felony conviction, which would have increased his minimum sentence to 20 years. (Plea Agmt. at 3.) Harris agreed that he would not appeal or otherwise litigate under 28 U.S.C. § 2255 any sentence within or below the Stipulated Guidelines range of 188 to 262 months. (Plea Agmt. at 5-6.) On February 8, 2001, in accordance with the plea agreement, this Court sentenced Harris to 188 months in prison. The Court also imposed a 5-year term of supervised release and a mandatory $100 special assessment. Shortly thereafter, Harris filed a notice of appeal. The Government moved for summary affirmance, arguing that Harris did not have any non-frivolous claims on appeal. The Second Circuit affirmed Harris's conviction and sentence in a summary order dated December 23, 2002. Harris did not seek a writ of certiorari from the Supreme Court.

  Harris, proceeding pro se, has petitioned this Court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In his petition, Harris asserts three separate grounds for relief based on ineffective assistance of counsel in violation of the Sixth Amendment. Harris contends that his counsel at trial and on appeal rendered ineffective assistance because (1) "the Sentencing Guidelines do not permit the district court to hold petitioner responsible for a specific quantity of drugs unless the court can conclude that petitioner was responsible for a quantity greater than or equal to? the quantity for which the petitioner is being held responsible for" (Harris's Memorandum of Law in Support of § 2255 Petition ("Harris Mem.") at 1); (2) counsel did not request a downward departure based on Harris's "extraordinary family circumstances" (Id.); and (3) counsel did not request a downward departure based on Harris's "mental, emotional, and physical condition because of petitioner's extraordinary situation faced by petitioner as a baby and youth" (Id.). In a subsequent filing, Harris argues that his counsel rendered ineffective assistance because she failed to contest the district court's jurisdiction over him. (Harris's Supplemental Amended Brief ("Harris Supp. Br.") at 21-28.) Lastly, Harris filed a motion on September 3, 2004, in which he requests that "all entities participating in the above-captioned matter provide the adverse party with copies of their limited liability bonds underwriting, their corporations, their insurance policies, and home owners insurance policies as proof of their solvency and capacity to sue or be sued," pursuant to Rule 9(a) of the Federal Rules of Civil Procedure. (Harris's Rule 9(a) Motion at first unnumbered page.)

  The Government filed a Memorandum of Law in opposition to Harris's petition on January 6, 2004 and a letter on October 18, 2004, in which it contends that Harris's claims are without merit and should be denied without a hearing.

  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 Ineffective Assistance of Counsel Claims

  To establish a claim for ineffective assistance of counsel, a petitioner must demonstrate (1) that his counsel's performance was deficient and (2) that counsel's deficient performance prejudiced the petitioner. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance was deficient if it "fell below an objective standard of reasonableness" under "prevailing professional norms." Id. at 688. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690.

  In addition to demonstrating an unreasonable error by counsel, a petitioner must show that the deficiency in counsel's performance had an effect on the result; that is, that the error was prejudicial to the petitioner. See Strickland, 466 U.S. at 691-96. A petitioner demonstrates prejudice by "showing that counsel's errors were so serious as to deprive the defendant of a fair trial," and that "there is a reasonable probability ...


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