Harris v. United States of America

Filing 6

OPINION: The Court lifts the stay (stay ordered on 7/20/16). Because it plainly appears from the Motion and the record of the prior proceedings that Petitioner is not entitled to relief, the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody 1 is SUMMARILY DISMISSED. The Clerk is DIRECTED to notify Petitioner of the dismissal. The Court also denies a certificate of appealability. THIS CASE IS CLOSED. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 12/13/17. (SKN, ilcd) Modified on 12/14/2017 to replace partial Opinion document with complete Opinion document (SKN, ilcd).

E-FILED

Thursday, 14 December, 2017 04:16:20 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
SPENCER HARRIS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

No. 16-cv-3208

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This matter is before the Court on Petitioner Spencer Harris’
Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255 (d/e 1). Under Rule 4(b) of the Rules Governing
Section 2255 Proceedings for the United States District Courts,
this Court must promptly examine the motion. If it appears from
the motion, any attached exhibits, and the record of prior
proceedings that Petitioner is not entitled to relief, the Court must
dismiss the motion. See Rules Governing Section 2255
Proceedings, 4(b). This matter was stayed on July 20, 2016. The
Court now lifts the stay. A preliminary review of Petitioner’s

motion shows that it must be dismissed because Petitioner is not
entitled to relief.
I. BACKGROUND
On October 10, 2006, following a jury trial, Petitioner was
found guilty of the following charges as listed in the second
superseding indictment: distributing five or more grams of cocaine
base (crack) (Count 1), possession with intent to distribute five or
more grams of cocaine base (crack) (Count 2), possession of a
firearm by a felon (Count 3), possession of a firearm in furtherance
of a drug trafficking (Count 4), and distribution of cocaine (Count
5). See United States v. Harris, United States District Court,
Central District of Illinois, Springfield Division, Case No. 06-cr30058 (hereinafter, Crim.), Second Superseding Indictment (d/e
14); Crim., Jury Verdict (d/e 16). On May 21, 2007, U.S. District
Judge Jeanne E. Scott held the sentencing hearing. See Crim.,
May 21, 2007 Minute Entry.
The Presentence Investigation Report (PSR) determined that
Petitioner qualified as a career offender under § 4B1.1 of the
Sentencing Guidelines based on two prior felony convictions: (1) a
crime of violence, aggravated battery, Sangamon County, Illinois,
Page 2 of 10

Circuit Court, Case No. 88-CF-316; and (2) a controlled substance
offense, manufacture/delivery of a controlled substance,
Sangamon County, Illinois, Circuit Court, Case No. 89-CF-418.
See Crim., PSR ¶ 58 (d/e 44); U.S.S.G. § 4B1.1(a).
At the Sentencing Hearing, the Court found that Petitioner
qualified as a career offender. See Crim., May 21, 2007 Minute
Entry. Petitioner did not object to the career offender designation.
Id. Petitioner’s designation as a career offender resulted in an
advisory sentencing guideline range of 420 months to life
imprisonment, consisting of 360 months to life imprisonment on
each of Counts 1, 2 and 5, to run concurrently; 120 months’
imprisonment on Count 3, to run concurrently with Counts 1, 2
and 5; and 60 months’ imprisonment on Count 4, to run
consecutively to the sentences imposed on Counts 1, 2, 3 and 5.
Judge Scott sentenced Petitioner to 460 months, consisting of 400
months on Counts 1, 2 and 5 and 120 months on Count 3 all to
run concurrently with each other, and 60 months on Count 4 to
run consecutively to Counts 1, 2, 3, and 5. See Crim., Judgment
(d/e 42).

Page 3 of 10

Petitioner appealed, claiming the district court made several
erroneous evidentiary rulings, which deprived him of a fair trial.
The Seventh Circuit affirmed the judgment of the district court and
dismissed the appeal. United States v. Harris, 536 F.3d 798, 813
(7th Cir. 2008). The mandate issued on August 28, 2008. See
Crim., Mandate (d/e 61).
In August 2009, Petitioner filed his first § 2255 Motion. See
Harris v. United States, United States District Court, Central
District of Illinois, Springfield Division, Case No. 09-3201.
Petitioner argued his Fifth and Sixth Amendment rights were
violated because the District Court improperly allowed the
Indictment to be amended, his Sixth Amendment rights were
violated because he received ineffective assistance of counsel at
trial and on appeal, and his rights were violated when the Court
improperly included an enhancement in the Sentencing Guideline
calculation for possession of a weapon in connection with a drug
offense. See Harris, Case No. 09-3201, Motion at 5-11 (d/e 1);
Motion to Amend at 1-2 (d/e 4). The Court denied the Motion as
amended in July 2010.

Page 4 of 10

In June 2016, Petitioner sought permission from the Seventh
Circuit to file a successive § 2255 Motion. Petitioner sought to
challenge his sentence under Johnson v. United States, 135 S. Ct.
2551 (2015), which held that the residual clause of the Armed
Career Criminal Act is unconstitutionally vague. Johnson, 135 S.
Ct. at 2563; 18 U.S.C. § 924(e)(2)(B)(ii) (the ACCA “residual clause”)
(defining the term “violent felony” to include “conduct that presents
a serious potential risk of physical injury to another”). The
Seventh Circuit authorized this Court to consider Petitioner’s
Johnson claim, along with the government’s defenses. Crim. (d/e
1-1).
On July 18, 2016, Petitioner filed the § 2255 Motion at issue
herein. Petitioner makes two claims (1) he challenges his sentence
under Johnson because the Court may have relied on the residual
clause of the sentencing guidelines to determine that his
aggravated battery conviction qualified as a crime of violence for
purposes of the career offender designation under § 4B1.2(a)(2);
and (2) his Sixth Amendment rights were violated because he
received ineffective assistance of counsel at sentencing when his
counsel failed to object to his designation as a career offender. See
Page 5 of 10

Motion (d/e 1). This Court appointed the Federal Public Defender’s
Office to represent Petitioner and stayed Petitioner’s case pending
the Seventh Circuit’s resolution of the effect of Johnson on the
identically worded residual clause in the career offender guideline.1
See July 20, 2016 Text Order.
In August 2016, the Seventh Circuit held that Johnson
applied to the guidelines. United States v. Hurlburt, 835 F.3d 715,
725 (7th Cir. 2016) (applying Johnson and holding that the
residual clause in § 4B1.2(a)(2) was unconstitutionally vague).
But, on March 6, 2017, the United States Supreme Court decided
Beckles v. United States, holding that the “advisory Guidelines are
not subject to vagueness challenges under the Due Process
Clause” and that the residual clause in § 4B1.2(a)(2) is not void for
vagueness. 137 S. Ct. 886, 890 (2017) (also abrogating Hurlburt).
II. ANALYSIS
A person convicted of a federal crime may move to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Relief

Pursuant to Amendment 798 to the Guidelines, effective August 1, 2016, the Sentencing
Commission deleted the residual clause contained in U.S.S.G. § 4B1.2(a)'s definition of a
“crime of violence.” Harris was classified as a career offender using the previous version of
the guidelines.
1

Page 6 of 10

under § 2555 is an extraordinary remedy because a § 2255
petitioner has already had “an opportunity for full process.”
Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Here, Petitioner’s Johnson claim is foreclosed by the decision
in Beckles. Petitioner challenges his designation as a career
offender based on his prior conviction of aggravated battery to the
extent that it qualified as a crime of violence under the Guidelines’
residual clause. In light of Beckles, the “advisory Guidelines are
not subject to vagueness challenges under the Due Process
Clause” and that the residual clause in § 4B1.2(a)(2) is not void for
vagueness. 137 S. Ct. 886, 890 (2017). Accordingly, Petitioner’s
Johnson claim must be denied.
Petitioner’s § 2255 motion also raises a claim of ineffective
assistance of counsel based on his defense counsel’s failure to
object to his classification as a career offender in the PSR. See
Motion at 16 (d/e 1). However, the claim is untimely raised. A
one-year period of limitation applies to § 2255 petitions. 28 U.S.C.
§ 2255(f). Petitioner’s conviction became final more than a year
before his filing (§ 2255(f)(1)). Petitioner’s conviction became final
on November 26, 2008, which is 90 days after the Seventh Circuit
Page 7 of 10

issued the decision on Petitioner’s unsuccessful appeal. See Clay
v. United States, 537 U.S. 522, 525 (2003) (when a defendant
takes an unsuccessful direct appeal, the one-year period begins to
run when the time for filing a petition for certiorari expires); Sup.
Ct. R. 13.1 (requiring a petition for certiorari be filed within 90
days after entry of judgment); Crim., Mandate (d/e 61) (issued
August 28, 2008). Petitioner’s § 2255 Motion filed in June 2016
was clearly filed beyond one-year from the date the conviction was
final. Moreover, the other three possible ways to calculate
timeliness do not apply: Petitioner does not allege any government
action prevented him from making a motion (§ 2255(f)(2)), that a
new right exists (§ 2255(f)(3)), or that he recently discovered,
through the exercise of due diligence, facts supporting the
ineffective assistance of counsel claim (§ 2255(f)(4)).
Even if the claim was timely filed, it must be denied because
counsel is not ineffective for failing to predict a potential change in
the law. To succeed on a claim of ineffective assistance, a § 2255
petitioner must show: (1) that his attorney's performance fell below
an objective standard of reasonableness; and (2) that he suffered
prejudice as a result. Wyatt v. United States, 574 F.3d 455, 457–
Page 8 of 10

58 (7th Cir. 2009) (citing Strickland v. Washington, 466 U.S. 668,
687–88 (1984)). At the time of sentencing, the residual clauses in
the ACCA and the sentencing guidelines were not void for
vagueness. So, counsel’s performance could not have been
objectively unreasonably for failing to challenge the career offender
designation on these grounds. Further, there was no prejudice
because, after Beckles, such a challenge would be foreclosed.
Accordingly, Petitioner’s ineffective assistance of counsel claim
must be dismissed as well.
III. CERTIFICATE OF APPEALABILITY
If Petitioner seeks to appeal this decision, he must first obtain
a certificate of appealability. See 28 U.S.C. § 2253(c) (providing
that an appeal may not be taken to the court of appeals from the
final order in a § 2255 proceeding unless a circuit justice or judge
issues a certificate of appealability). A certificate of appealability
may issue only if Petitioner has made “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Here,
Petitioner has not made a substantial showing of the denial of a
constitutional right. Therefore, the Court denies a certificate of
appealability.
Page 9 of 10

IV. CONCLUSION
The Court lifts the stay. Because it plainly appears from the
Motion and the record of the prior proceedings that Petitioner is
not entitled to relief, the Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody (d/e
1) is SUMMARILY DISMISSED. The Clerk is DIRECTED to notify
Petitioner of the dismissal. The Court also denies a certificate of
appealability. THIS CASE IS CLOSED.
ENTER: December 13, 2017
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

Page 10 of 10