Harris v. United States of America

Filing 7

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 11/13/2015. (PSM)

FILED
2015 Nov-13 PM 01:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
MARIO DERAMUS HARRIS,
PETITIONER,
VS.

UNITED STATES OF AMERICA,
RESPONDENT.

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) 1:15-CV-8016-LSC
) (1:09-CR-0263-LSC-JEO-1)
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MEMORANDUM OF OPINION
I.

INTRODUCTION
This is a motion to vacate, set aside, or correct a sentence pursuant to 28

U.S.C. § 2255, filed by petitioner Mario Deramus Harris (“Harris”) on July 27,
2015. (Doc. 1.) In this Court, Harris pled guilty to Armed Bank Robbery in violation
of 18 U.S.C. § 2113(a), Brandishing a Firearm During and in Relation to a Crime of
Violence in violation of 18 U.S.C. § 924(c)(1)(c)(ii), and Felon in Possession of a
Firearm in violation of 18 U.S.C. § 922(g). Due to his past violent felonies and a
serious drug offense, Harris was sentenced under provisions of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e). He now moves the Court to

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reconsider his sentencing in light of the recent Supreme Court decision, Johnson v.
United States, 135 S. Ct. 2551 (2015). Harris’s § 2255 motion is due to be denied.
II.

BACKGROUND
On October 24, 2006, Harris and an accomplice robbed a Wachovia Bank

branch while brandishing firearms. Later that day, law enforcement apprehended
Harris’s accomplice which led to the arrest of Harris. Harris was indicted on three
counts: Count One: Armed Bank Robbery, 18 U.S.C. § 2113(a); Count Two:
Brandishing a Firearm During and in Relation to a Crime of Violence, 18 U.S.C. §
924(c)(1)(A)(ii); and Count Three: Felon in Possession of a Firearm, 18 U.S.C. §
922(g)(1).
Harris pled guilty to all three counts and was sentenced to a total of 150
months of federal imprisonment: 66 months as to Counts 1 and 3, separately, with
each count to run concurrently with the other, and 84 months as to Count 2, with
Count 2 to run consecutively to Counts 1 and 3. For Count Three, Felon in
Possession of a Firearm, Harris was sentenced under the enhanced sentencing
provision of the ACCA. Judgment was entered on March 4th, 2010. Harris did not
appeal his conviction or sentence.
Prior to the bank robbery, Harris was no stranger to crime. In 1997, Harris
was convicted of two separate counts of Assault in the First Degree in state court.

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These convictions resulted from his shooting two people on different occasions. In
addition, a little over a year after the assault convictions, Harris was convicted of
Trafficking Cannabis in state court after police caught him with a suitcase
containing over six pounds of marijuana.
III.

DISCUSSION

A prisoner in federal custody may bring a collateral challenge to his
conviction or sentence by moving the sentencing court to vacate, set aside, or
correct the sentence. 28 U.S.C. § 2255(a). For a § 2255 motion to be timely, it
must be brought within one year of the final judgment of conviction. See id. §
2255(f)(1). In addition, a petitioner may also bring a claim within one year of a
Supreme Court decision that recognizes a new right that is applicable to the
petitioner’s case. See id. § 2255(f)(3). However, the newly recognized right must
apply retroactively to cases on collateral review. Id.
Final judgment on Harris’s conviction was in 2010; as such, Harris is outside
the one year statute of limitations found in § 2255(f)(1). Nonetheless, Harris
asserts that his motion is timely because it was filed within one year of a Supreme
Court decision, Johnson v. United States, 135 S. Ct. 2551 (2015), which recognized a
new right that is applicable to his case.

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In Johnson v. United States, the Supreme Court held that a portion of the
ACCA was unconstitutionally vague. Id. at 2563. The ACCA allows for enhanced
sentencing for criminal defendants who have three or more prior convictions for
serious drug offenses or violent felonies. In Johnson, one of the defendant’s
qualifying convictions was for the possession of a sawed-off shotgun that had a
barrel shorter than allowed by law. Id. at 2556. In Johnson, the government claimed
that this conviction was a violent felony because it fell under the residual clause of
the ACCA’s definition of violent felony. Id. The residual clause defines violent
felony as one that “otherwise involves conduct that presents a serious potential risk
of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court
found this language unconstitutionally vague. Johnson, 135 S. Ct. at 2563.
The first question that must be addressed is whether Johnson created a new
right at all. It is “often difficult to determine when a case announces a new rule.”
Teague v. Lane, 489 U.S. 288, 302 (1989). Generally, a new rule is created when it
“breaks new ground or it imposes a new obligation on the States or the Federal
Government.” Id. Because Johnson ruled a portion of the ACCA unconstitutional,
it broke “new ground” and recognized a new right that applies to the scope of the
ACCA’s enhanced sentencing. Harris was sentenced under the ACCA’s enhanced
sentencing. Therefore, Johnson’s holding is relevant to the law at issue in this

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motion. However, that is not the end of the analysis. While it may be true that in
Johnson the Supreme Court recognized a new right, that is not sufficient in itself; it
must also apply retroactively on collateral review. See 28 U.S.C. § 2255(f)(3)
(“The limitation period shall run from . . . the date on which the right asserted was
initially recognized by the Supreme Court, if that right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on collateral review.”)
(emphasis added).
The Eleventh Circuit has held that Johnson does not apply retroactively on
collateral review. In re Rivero, 797 F.3d 986, 990 (11th Cir. 2015). Thus, Harris
cannot rely on it pursuant to 28 U.S.C. § 2255(f)(3). Also, since one year has
passed since his final judgment, his petition is time barred. It is true that § 2255(f)
is a statute of limitation and not a jurisdictional bar, and as such is subject to
equitable tolling. Sandvik v. United States, 177 F.3d 1269 (11th Cir. 1999). Equitable
tolling applies when habeas corpus petitioners have not rested on their rights but
were prevented from filing earlier by some extraordinary circumstance. Pace v.
DiGuglielmo, 544 U.S. 408 (2005); San Martin v. McNeil, 633 F.3d 1257, 1267 (11th
Cir. 2011). However, Harris has not offered any explanation of an extraordinary
circumstance that would justify equitable tolling in this case.

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Even if Harris’s motion was to be considered on its merits, it would still be
due to be denied. Under the ACCA, defendants receive enhanced sentencing if
they are convicted under 18 U.S.C. § 922(g) and have three prior convictions that
are violent felonies or serious drug offenses. See 18 U.S.C. § 924(e)(1). There is no
question that Harris’s Trafficking Cannabis conviction is a serious drug offense.1
That leaves only Harris’s two prior violent felonies for discussion. In Johnson, the
Supreme Court addressed only the residual clause of the ACCA’s definition of
violent felonies. 135 S. Ct. at 2563 (“Today’s decision does not call into question . .
. the remainder of the [ACCA’s] definition of violent felony.”). Harris’s two
Assault in the First Degree convictions clearly fall under the ACCA’s elements
clause of the definition. See 18 U.S.C. § 924(e)(B)(i) (defining violent felony as one
having “as an element the use, attempted use, or threatened used of physical force
against the person of another.”). Harris’s assault convictions were the result of

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The ACCA defines “serious drug offense” as follows:
(i) an offense under the Controlled Substances Act (21 U.S.C. § 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or
chapter 705 of title 46, for which a maximum term of imprisonment of ten years or
more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance (as
defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802)), for
which a maximum term of imprisonment of ten years or more is prescribed by law;

18 U.S.C. § 924(e)(2)(A).
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drive-by shootings in which Harris actually shot two people on different occasions
three days apart from each other. In Harris’s Presentence Investigative Report
(“PSR”), each of these two convictions was treated as a “violent felony” for
enhancement purposes under 18 U.S.C. § 924(e) because each had as an element
the use, attempted use, or threatened use of physical force against the person of
another (referring to the ACCA’s “elements clause”), and because they otherwise
involved conduct that presented a serious risk of potential injury to another
(referring to the ACCA’s “residual clause”). Harris did not object to his previous
assault convictions being considered crimes of violence or violent felonies in the
PSR. These convictions were for violating 13A-6-20, Ala. Code 1975, which defines
“Assault in the First Degree” as follows:
(a) A person commits the crime of assault in the first degree if:
(1) With intent to cause serious physical injury to another
person, he or she causes serious physical injury to any person by
means of a deadly weapon or a dangerous instrument; or
(2) With intent to disfigure another person seriously and
permanently, or to destroy, amputate, or disable permanently a
member or organ of the body of another person, he or she causes such
an injury to any person; or
(3) Under circumstances manifesting extreme indifference to
the value of human life, he or she recklessly engages in conduct which
creates a grave risk of death to another person, and thereby causes
serious physical injury to any person; or

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(4) In the course of and in furtherance of the commission or
attempted commission of arson in the first degree, burglary in the first
or second degree, escape in the first degree, kidnapping in the first
degree, rape in the first degree, robbery in any degree, sodomy in the
first degree, or any other felony clearly dangerous to human life, or of
immediate flight therefrom, he or she causes a serious physical injury
to another person; or
(5) While driving under the influence of alcohol or a controlled
substance or any combination thereof in violation of Section 32-5A-191
or 32-5A-191.3, he or she causes serious physical injury to the person
of another with a vehicle or vessel.
As such, these convictions meet the elements clause of the ACCA definition of
violent felony. Therefore, Harris’s reliance on Johnson is misplaced, because even
if this Court excised the residual clause from the PSR, each of these convictions
would still have qualified for § 924(e) treatment due to its falling under the
elements clause of the ACCA.
Finally, Harris was sentenced to 66 months for both Count One and Count
Three with those sentences running concurrently. Even if the sentence for Count
Three was vacated or reduced, the Sentence for Count One would remain
unaffected.
IV.

CONCLUSION
For the foregoing reasons, Harris’s § 2255 motion is due to be denied.
Additionally, this Court may issue a certificate of appealability “only if the

applicant has a made a substantial showing of the denial of a constitutional right.”
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28 U.S.C. § 2253(c)(2). To make such a showing, a “petitioner must demonstrate
that reasonable jurist would find the district court’s assessment of the
constitutional claims debatable and wrong,” Slack v. McDaniel, 529 U.S. 473, 484
(2000), or that “the issues presented were adequate to deserve encouragement to
proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal

quotations omitted). This Court finds that Harris’s claims do not satisfy either
standard. Accordingly, insofar as an application for a certificate of appealability is
implicit in the defendant’s motion, it is due to be denied.
A separate closing order will be entered.
DONE and ORDERED on November 13, 2015.

_____________________________
L. Scott Coogler
United States District Judge
160704

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