Harris v. United States of America

Filing 12

OPINION AND ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255). The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:15-cr-56-FTM-29MRM), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 6/1/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JERMARL HARRIS,
Petitioner,
v.

Case No: 2:17-cv-27-FtM-29MRM
Case No. 2:15-CR-56-FTM-29MRM

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#49) 1 filed on January 17, 2017.

The government filed a Response

in Opposition to Motion (Cv. Doc. #10) on May 19, 2017. The
petitioner filed a Reply (Cv. Doc. #11) on June 12, 2017.
I.
On April 29, 2015, a federal grand jury in Fort Myers, Florida
returned a one-count Indictment (Cr. Doc. #1) charging petitioner
with conspiracy to possess with intent to distribute a detectable
amount of marijuana.

Petitioner entered a plea of guilty, which

was accepted on December 18, 2015.

1The

(Cr. Docs. ## 33-35.)

Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”

On March 22, 2016, the Court sentenced petitioner to a term
of imprisonment of 46 months, concurrent but not coterminous with
the term of imprisonment in Circuit Court case Numbers 13CF877 and
14CF300

beginning

supervised release.

February

7,

2014,

followed

by

a

term

of

Alternatively, pursuant to Barden v. Keohane,

921 F.2d 476 (3d Cir. 1990), the Court recommended that the Bureau
of

Prisons

retroactively

designate

the

Florida

facilities

as

defendant's location of federal imprisonment effective February 7,
2014. (Cr. Doc. #44.)
23, 2016.

Judgment (Cr. Doc. #46) was filed on March

Petitioner did not file a direct appeal, and timely

filed his habeas petition.
II.
Petitioner argues that counsel was ineffective for failing to
recognize that the Court could not legally have given credit for
time served, and in fact the Court had no authority to provide
credit.

Petitioner further argues that United States Sentencing

Guidelines § 5G1.3 should apply to correct his sentence.

The

Court finds that it has no authority to grant the relief sought.
(1)

General Legal Principles

The legal standard for ineffective assistance of counsel
claims in a habeas proceeding is well established.

To prevail on

a claim of ineffective assistance of counsel, a habeas petitioner
must demonstrate both that (1) counsel's performance was deficient
because it fell below an objective standard of reasonableness, and

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(2) prejudice resulted because there is a reasonable probability
that,

but

for

the

deficient

performance,

proceeding would have been different.
___,

134

S.

Ct.

1081,

1087-88

the

result

of

the

Hinton v. Alabama, ___ U.S.

(2014)

(citing

Strickland

v.

Washington, 466 U.S. 668, 687, 694 (1984) and Padilla v. Kentucky,
559 U.S. 356, 366 (2010)).

“Because a petitioner's failure to

show either deficient performance or prejudice is fatal to a
Strickland claim, a court need not address both Strickland prongs
if the petitioner fails to satisfy either of them.”

Kokal v.

Sec’y, Dep’t of Corr., 623 F.3d 1331, 1344 (11th Cir. 2010)
(citations omitted).
is

simply

The proper measure of attorney performance

reasonableness

under

prevailing

considering all the circumstances.
(citations omitted).

professional

norms

Hinton, 134 S. Ct. at 1088

“A fair assessment of attorney performance

requires that every effort be made to eliminate the distorting
effects

of

hindsight,

to

reconstruct

the

circumstances

of

counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.”

Strickland, 466 U.S. at 689.

See also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (the Court
looks to facts at the time of counsel’s conduct).

This judicial

scrutiny is highly deferential, and the Court adheres to a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.
90.

Strickland, 466 U.S. at 689-

To be objectively unreasonable, the performance must be such

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that no competent counsel would have taken the action.

Rose v.

McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); Hall v. Thomas, 611
F.3d 1259, 1290 (11th Cir. 2010).

Additionally, an attorney is

not ineffective for failing to raise or preserve a meritless issue.
United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992);
Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989).
(2)

Credit for Time Served

Under Section 3585(b),
A defendant shall be given credit toward the
service of a term of imprisonment for any time
he has spent in official detention prior to
the date the sentence commences-(1) as a result of the offense for which the
sentence was imposed; or
(2) as a result of any other charge for which
the
defendant
was
arrested
after
the
commission of the offense for which the
sentence was imposed;
that has not been credited against another
sentence.
18 U.S.C. § 3585(b).

Although framed as an ineffective assistance

of counsel argument, counsel presented the argument for credit for
time served, and a recommendation was made.

The Court sentenced

petitioner with an alternative for a retroactive designation as
follows:
Accordingly, it is the judgment of the Court
that you be committed to the custody of the
Bureau of Prisons to be imprisoned for a term
of 46 months. The Court is going to recommend
that that sentence be served concurrently but
not conterminously with the state convictions

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that result in your incarceration beginning on
February the 7th, 2014. In the judgment, I'll
list the case numbers that we'll get in the
presentence report.
The Court would also recommend, again, with
the aim of having the sentence be concurrent
with that time, that if the credit is not
possible,
that
the
Bureau
of
Prisons
retroactively designate the state facility to
be the federal location where this sentence is
to have been served. The effect of which will
give the defendant credit for that service on
the federal sentence.
The federal sentence is not conterminous
because it doesn't end when your state
sentence ended. So you still have some time,
it's just a matter of how much time you're
going to either get credit for or the
retroactive designation will help you for.
(Cv. Doc. #10-2, pp. 18-19.)

The Court made the recommendation

for credit, “[b]ut it is the Attorney General through the BOP, not
the district court, that § 3585(b) empowers to compute sentence
credit awards after sentencing.”
17-15410,
2018).

F. App’x

United States v. Leverette, No.

, 2018 WL 2068646 (11th Cir. May 3,

Therefore, counsel could not be deemed deficient in his

performance.
(3)

Sentencing Guideline Section 5G1.3

Petitioner argues that § 5G1.3 authorizes the credit that he
seeks, and that the Bureau of Prisons failed to award him the
credit.

Specifically,
If . . . a term of imprisonment resulted from
another offense that is relevant conduct to
the instant offense of conviction . . . the
instant offense shall be imposed as follows:

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(1) the court shall adjust the sentence for
any period of imprisonment already served on
the undischarged term of imprisonment if the
court
determines
that
such
period
of
imprisonment will not be credited to the
federal sentence by the Bureau of Prisons; and
(2) the sentence for the instant offense shall
be imposed to run concurrently to the
remainder
of
the
undischarged
term
of
imprisonment.
United States Sentencing Guidelines Manual § 5G1.3(b).

However,

Sentencing
Guideline
§
5G1.3
does
not
authorize a district court to grant credit for
time served prior to the imposition of
sentence. The granting of credit for time
served
“is
in
the
first
instance
an
administrative, not a judicial, function.”
United States v. Flanagan, 868 F.2d 1544, 1546
(11th Cir. 1989). A claim for credit for time
served is brought under 28 U.S.C. § 2241 after
the exhaustion of administrative remedies.
United States v. Nyhuis, 211 F.3d 1340, 1345 (11th Cir. 2000).
Because petitioner’s claim is regarding the execution of the
Court’s

recommendation

for

credit

and

not

the

length

of

the

sentence, the motion will be dismissed.
(4)

Habeas Relief

Ordinarily,

an

action

in

which

an

individual

seeks

to

collaterally attack his sentence should be filed as a motion under
28 U.S.C. § 2255 in the district of conviction 28 U.S.C. § 2255(a).
Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003).
“challenges

to

the

execution

of

a

sentence,

rather

However,
than

the

validity of the sentence itself, are properly brought under §
2241.”

Antonelli v. Warden, U.S.P. Atl., 542 F.3d 1348, 1352

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(11th Cir. 2008) See also McCarthan v. Dir. of Goodwill Indus.Suncoast, Inc., 851 F.3d 1076, 1089 (11th Cir. 2017), cert. denied
sub nom. McCarthan v. Collins, 138 S. Ct. 502 (2017).

“A petition

for a writ of habeas corpus may only be brought in the court having
jurisdiction over the petitioner or his place of incarceration.”
Hajduk v. United States, 764 F.2d 795, 796 (11th Cir. 1985).

“A

prisoner in custody pursuant to a federal court judgment may
proceed under § 2241 only when he raises claims outside the scope
of

§

2255(a),

sentence.”
The

that

is,

claims

concerning

execution

of

his

Antonelli, 542 F.3d at 1351 n.1.

motion

will

alternatively

be

dismissed

under

2255,

without prejudice to exhausting and seeking relief in the district
of incarceration under Section 2241:
Congress has accorded the Attorney General
with initial discretion to determine credit
for time served by a defendant. Under the
relevant statute, “[t]he Attorney General
shall give any such person credit toward
service of his sentence for any days spent in
custody in connection with the offense or acts
for which sentence is imposed.” 18 U.S.C. §
3568. Construing this provision, this court
has held that the granting of credit for time
served
is
in
the
first
instance
an
administrative, not a judicial, function. See
United States v. Morgan, 425 F.2d 1388, 138990 (5th Cir. 1970). Accordingly, a federal
prisoner dissatisfied with the computation of
his sentence must pursue the administrative
remedy available through the federal prison
system before seeking judicial review of his
sentence. Id. at 1390; see, e.g., United
States v. Mathis, 689 F.2d 1364, 1365 (11th
Cir.
1982)
(defendant
must
pursue

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administrative remedies before district court
has jurisdiction).
United States v. Flanagan, 868 F.2d 1544, 1546 (11th Cir. 1989).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Petitioner’s Motion Under 28 U.S.C. Section 2255 to

Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #1; Cr. Doc. #49) is DISMISSED.
2.

The Clerk of the Court shall enter judgment accordingly

and close the civil file.

The Clerk is further directed to place

a copy of the civil Judgment in the criminal file, and send
petitioner a 2241 form with this Opinion and Order.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.

A prisoner seeking a writ of habeas

corpus has no absolute entitlement to appeal a district court’s
denial of his petition.

28 U.S.C. § 2253(c)(1); Harbison v. Bell,

556 U.S. 180, 183 (2009).

“A [COA] may issue . . . only if the

applicant has made a substantial showing of the denial of a
constitutional right.”
showing,

Petitioner

28 U.S.C. § 2253(c)(2).

“must

demonstrate

that

To make such a

reasonable

jurists

would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004), or that “the issues presented were adequate to deserve

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encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations and internal quotation marks omitted).
Petitioner

has

not

made

the

requisite

showing

in

these

circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
June, 2018.

Copies:
Petitioner
AUSA

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1st

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