Harris v. USA
RULING AND ORDER dismissing the action. Signed by Judge Robert N. Chatigny on 7/25/13.(Goldsticker, M)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANTHONY DEVINE HARRIS,
UNITED STATES OF AMERICA,
Case No. 3:9-CV-941(RNC)
RULING AND ORDER
Anthony Devine Harris, a federal inmate, brings this action
under 28 U.S.C. § 2255 challenging his sentence of 300 months'
imprisonment for possession of narcotics with intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B)(iii); using and carrying a firearm during a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1); and
possessing a firearm as a prohibited person in violation of 18
U.S.C. § 922(g)(1) and the Armed Career Criminal provision of 18
U.S.C. § 924(e)(1).
Harris claims that the sentence was imposed
in violation of his Sixth Amendment right to effective assistance
of counsel because his counsel unreasonably failed to challenge
the applicability of certain sentencing enhancements.
reasons set forth below, the action is dismissed.
Prior to Harris's jury trial on the charges listed above,
the government filed a second offender notice under 21 U.S.C. §
851, stating that he had previously been convicted in state court
of a "felony drug offense" within the meaning of 21 U.S.C. §
841(b)(1)(B), specifically, sale of narcotics in violation of
Conn. Gen. Stat. § 21a-277(a).
As a result of the filing,
Harris's maximum exposure on the narcotics charge increased from
40 years' imprisonment to
imprisonment for life ("the § 851
See 21 U.S.C. § 841(b)(1)(B).
After the jury
convicted Harris on all three charges, the Probation Office
prepared a presentence report ("PSR") showing that he was subject
to the career offender provision in U.S.S.G. § 4B1.1(a) due to
numerous prior felony convictions.
See PSR ¶ 28.
statutory maximum penalty on the narcotics conviction was
imprisonment for life, the career offender provision called for
an offense level of 37.
See U.S.S.G. § 4B1.4(b)(2).
Harris was a career offender, he was in Criminal History Category
See id. § 4B1.1(b).
As a result, the bottom of the
applicable guideline range was 420 months.
See PSR ¶ 77.
21, 2007, Harris received a non-Guidelines sentence of 300
Harris challenges his sentence on the ground that his
trial and appellate counsel were ineffective in not contesting
the sentencing enhancements he received as a result of his prior
Specifically, he claims (1) that his state
narcotics conviction did not qualify as a predicate offense for
the § 851 enhancement, and (2) that he did not have two prior
felony convictions to support an enhancement under the career
Under 28 U.S.C. § 2255, Harris can obtain relief if "the
sentence was imposed in violation of the Constitution or laws of
the United States."
28 U.S.C. § 2255(a).
His claim of
ineffective assistance of counsel is assessed under the twopronged standard established in Strickland v. Washington, 466
U.S. 668 (1984).
He bears a heavy burden of proving that (1) his
counsel's performance fell below an objective standard of
reasonableness under prevailing professional norms; and (2) but
for his counsel's errors, there is a reasonable probability the
result of the proceedings would have been different.
Id. at 687-
Failure to show "either deficient performance or
sufficient prejudice defeats the ineffectiveness claim."
The § 851 Enhancement
When Harris pleaded guilty in state court to sale of
narcotics in violation of Conn. Gen. Stat. § 21a–277(a), the
statute criminalized some conduct that did not fall within the
federal definition of a "felony drug offense."
See McCoy v.
United States, 707 F.3d 184, 187 (2d Cir. 2013) (per curiam).
Thus, to establish that Harris's state conviction qualified as a
predicate offense for the § 851 enhancement, the government had
to rely on court documents "in which the factual basis for the
plea was confirmed by the defendant."
544 U.S. 13, 26 (2005).
Shepard v. United States,
The government offered no such documents
but relied instead on Harris's plea under the Alford doctrine.
See North Carolina v. Alford, 400 U.S. 25 (1970).
plea provided an inadequate basis for determining that the state
conviction qualified as a predicate drug offense for the § 851
Harris's claim is unavailing, however, because his counsel
proceeded on the basis of the long-held belief that a Connecticut
conviction for sale of narcotics qualified categorically as a
felony drug offenses under 21 U.S.C. § 841(b)(1).
did not change until mid-2009, two years after Harris was
It is well-established that "[a]n attorney is not
required to forecast changes or advances in the law" in order to
provide effective assistance.
Sellan v. Kuhlman, 261 F.3d 303,
315 (2d Cir. 2001) (internal quotation marks and citation
Rather, "counsel's performance must be assessed . . .
as of the time of counsel's conduct without the benefit of
Id. (internal quotation marks and citation omitted).
In McCoy, the Court of Appeals recently rejected an ineffective
assistance of counsel claim like Harris's on this very basis.
See 707 F.3d at 188.
Thus, it did not constitute ineffective
assistance for Harris's trial counsel to fail to challenge the §
Harris argues that his counsel had an opportunity to
challenge the § 851 enhancement after June 2009 because the case
was remanded by the Court of Appeals for possible resentencing
and resentencing was not denied until December 2010.
of Appeals ordered a "remand for the limited purpose of
permitting the sentencing judge to determine whether to
resentence in light of United States v. Whitley, 529 F.3d 150 (2d
See United States v. Harris, 294 F. App'x 689, 689
(2d Cir. 2008).
It was not unreasonable for Harris's counsel to
fail to raise the § 851 issue on the remand because raising such
a new issue on a limited remand is barred by the law of the case.
As the Court of Appeals has explained:
The law of the case ordinarily forecloses relitigation
of issues expressly or impliedly decided by the
appellate court. And where an issue was ripe for review
at the time of an initial appeal but was nonetheless
foregone, it is considered waived and the law of the
case doctrine bars the district court on remand and an
appellate court in a subsequent appeal from reopening
such issues unless the mandate can reasonably be
understood as permitting it to do so. We have
explained that it would be absurd that a party who has
chosen not to argue a point on a first appeal should
stand better as regards the law of the case than one
who had argued and lost. For similar reasons, we
conclude that the law of the case ordinarily prohibits
a party, upon resentencing or an appeal from that
resentencing, from raising issues that he or she waived
by not litigating them at the time of the initial
United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002)
(citations and internal quotation marks omitted).
Moreover, Harris's counsel's failure to challenge the § 851
enhancement was not prejudicial.
There is no prejudice when the
same sentence would have been imposed regardless of a change in
the guideline calculation.
This is illustrated by Pak v. United
States, 278 F. Supp. 2d 263 (D. Conn. 2003), where the defendant
claimed that his counsel's failure to initiate plea discussions
prior to jury selection deprived him of an extra point for
acceptance of responsibility.
There was no prejudice because, as
Judge Underhill explained, the sentence would have been the same
in any event:
This court's determination of [the] sentence was by no
means mechanical. Indeed, [the] sentence was carefully
considered and was intended to reflect the nature of
[the] offense, as well as the four purposes of
sentencing--punishment, incapacitation, deterrence, and
rehabilitation of the defendant. [The] sentence was
not tied to the low end of the applicable guideline
range. Looking at the totality of the circumstances,
this court tailored [the] sentence to fit [the
defendant's] criminal history and the seriousness of
the crime underlying his conviction. Had [he] been
subject to the lower guideline range, this court still
would have imposed a sentence of 48 months'
incarceration in order to reflect the seriousness of
the crime and [his] circumstances.
Id. at 268-69; cf. Johnson v. United States, 313 F.3d 815, 818
(2d Cir. 2002) (counsel's failure to object to an improper base
offense level was prejudicial in light of the sentencing court's
statement that the defendant would be given the "minimum"
The same is true here.
If Harris's counsel had successfully
challenged the § 851 enhancement, the bottom of the guideline
range would have been 360 months.
See U.S.S.G. § 4B1.1(c)(2) and
The sentence Harris received was 60 months less than that.
As in Pak, the sentence was calculated, not mechanically on the
basis of the low end of the range, but only after considering the
factors enumerated in 18 U.S.C. § 3553(a) in light of the
See Sentencing Tr. 49:17-57:11, May 21,
Thus, had Harris's counsel successfully challenged the §
851 enhancement, the sentence still would have been the same--a
non-Guidelines sentence of 300 months' imprisonment.
B. Career Offender Enhancement
To qualify as a career offender, Harris had to have "at
least two prior felony convictions of a crime of violence or a
controlled substance offense."
U.S.S.G. § 4B1.1(a).
conviction constitutes a crime of violence if the statute under
which the defendant was convicted "has as an element the use,
attempted use, or threatened use of physical force against the
person of another . . . or otherwise involves conduct that
presents a serious potential risk of physical injury to another."
U.S.S.G. § 4B1.2(a).
In making this determination, courts
historically employed a categorical approach, foregoing inquiry
into the specific circumstances of an offense.
United States, 495 U.S. 575, 600 (1990).
See Taylor v.
In Shepard, however,
the Supreme Court held that when a state statute encompasses
multiple offenses-–one or more of which are not career offender
predicates--courts may employ a modified categorical approach by
looking to a restricted set of documents to ascertain which of
the multiple offenses constituted the offense of conviction.
Shepard v. United States, 544 U.S. 13, 26 (2005).
The scope of
the inquiry is "limited to the terms of the charging document,
the terms of a plea agreement or transcript of colloquy between
judge and defendant in which the factual basis for the plea was
confirmed by the defendant, or to some comparable judicial record
of this information."
Harris argues that the offenses
listed in the PSR could be found to qualify as predicate violent
offenses only through reference to other types of documents, such
as police reports.
Harris's claim fails because at least two predicate
convictions listed in the PSR are clearly crimes of violence.
January 29, 2001, Harris was convicted on count two of an
information charging him with assault in the first degree by
discharge of a firearm in violation of Conn. Gen. Stat. § 53a59(a)(5).
See PSR ¶ 39.
For a defendant to be convicted under
this statute, he must intend to cause physical injury to another
by means of the discharge of a firearm.
See Conn. Gen. Stat. §
Indeed, the charge to which Harris pleaded guilty
alleged that he assaulted another by shooting him with a firearm.
See Gov's. Resp. to Am. Pet. Ex. 1 (ECF No. 31-1 at 21).
offense constitutes a crime of violence under both the
categorical and modified categorical approach.
On June 26, 2002, Harris was convicted of, among other
crimes, attempted robbery in the third degree in violation of
Conn. Gen. Stat. §§ 53a-49 and 136.
See PSR ¶ 40.
defendant to be convicted of robbery under this statute he must,
in the course of committing a larceny, use or threaten the
immediate use of physical force upon another person for the
purpose of (1) preventing or overcoming resistance or (2)
compelling a person to deliver up property or engage in other
conduct which aids the commission of the larceny.
See Conn. Gen.
Stat. § 53a-133 (defining the elements of robbery under § 53a136).
The counts of the information to which Harris pleaded
guilty show that he assaulted and attempted to rob a victim while
armed with a firearm.
See Gov's. Resp. to Am. Pet. Ex. 1 (ECF
No. 31-1) at 10-11.
This conviction also clearly constitutes a
crime of violence.1
See Carter v. United States, 731 F. Supp. 2d
262, 273 (D. Conn. 2010) ("By its plain terms, the Connecticut
robbery statute does not encompass conduct that would and conduct
that would not qualify as a violent felony under the ACCA and
thus, under the categorical approach, the court needed only to
look to the fact of [the defendant's] conviction to conclude
Under the Guidelines, the terms "'[c]rime of violence' and
'controlled substance offense' include the offenses of aiding and
abetting, conspiring, and attempting to commit such offenses."
U.S.S.G. § 4B1.2, Application Note 1 (emphasis added).
that, in pleading guilty, he necessarily admitted a fact
establishing the required element of the predicate violent felony
offense--the use or threatened use of force.").2
Based on these two convictions alone, Harris was properly
deemed a career offender.
Thus, he cannot show that his trial
counsel was ineffective in failing to object to the enhancement
under the career offender guideline.
See Harrington v. United
States, 689 F.3d 124, 130 (2d Cir. 2012) ("[A] petitioner cannot
show prejudice if the claim or objection that an attorney failed
to pursue lacks merit.").
Nor can he show that his appellate
counsel was ineffective in failing to raise the claim on direct
See Johnson v. United States, 307 F. Supp. 2d 380, 386
(D. Conn. 2003)(failure to raise a meritless argument on appeal
is not ineffective assistance).
III. Certificate of Appealability
A certificate of appealability may issue "only if the
applicant has made a substantial showing of a denial of a
See 28 U.S.C. § 2253(c)(2).
standard, a certificate of appealability will not issue unless
Harris notes that in Carter the robbery conviction did not
count as a predicate conviction pursuant to the career offender
guideline. However, that conviction was not counted as a
predicate conviction because the PSR awarded it zero criminal
history points pursuant to guideline § 4A1.1(2)(e). See Carter
v. United States, 731 F. Supp. 2d 262, 269 (D. Conn. 2010).
Here, the PSR awarded Harris's robbery conviction three criminal
history points because it occurred within fifteen years of his
commission of the instant offenses. See U.S.S.G. § 4A1.2(e).
jurists of reason could debate whether the petition should have
been resolved in a different manner or the issues are adequate to
deserve encouragement to proceed further.
U.S. 473, 484 (2000).
Slack v. McDaniel, 529
Harris has not made this showing.
Accordingly, a certificate of appealability will not issue.
The action is hereby dismissed.
The Clerk will enter
judgment and close the file.
So ordered this 25th day of July 2013.
Robert N. Chatigny
United States District Judge
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