United States of America v. Harrington

Filing 14

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 2/12/2014:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RICHARD HARRINGTON,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

Case No. 13 C 5458

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Before the Court is Petitioner Richard Harrington’s motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255.1 For the following reasons, the Court denies
Mr. Harrington’s Section 2255 motion and declines to certify any issues for appeal pursuant to
28 U.S.C. § 2253(c)(2).
BACKGROUND
On June 23, 2010, a grand jury handed down a superseding indictment charging Mr.
Harrington with conspiring to possess with the intent to distribute controlled substances in
violation of 21 U.S.C. § 846 (Count One); money laundering in violation of 18 U.S.C. §
1956(a)(1)(B) (Counts Two and Three); possession with intent to distribute heroin in violation of
21 U.S.C. § 841(a)(1) (Counts Four and Five); distribution of heroin in violation of
21 U.S.C. § 841(a)(1) (Counts Six and Fourteen); using a communication facility, namely a
telephone, in committing and in causing and facilitating the conspiracy alleged in Count One in

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Although Mr. Harrington filed a pro se motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 on July 26, 2013, he has since hired counsel who filed
legal memoranda supporting Mr. Harrington’s Section 2255 motion.

violation of 21 U.S.C. § 843(b) (Counts Seven, Ten, Thirteen, and Fifteen); and possession of a
firearm in furtherance of and carried during and in relation to the conspiracy alleged in Count
One in violation of 18 U.S.C. § 924(c)(1)(A) (Count Eighteen).
On January 31, 2011, Mr. Harrington entered a blind plea of guilty to Counts One, Two,
and Three of the superseding indictment. The government then orally agreed to dismiss all
distribution and phone counts as a result of Mr. Harrington’s guilty plea on Counts One, Two,
and Three. In his January 28, 2011 written plea declaration, Mr. Harrington admitted to the
following:
From 2007 until October 8, 2009, in Chicago, Illinois, and elsewhere, Mr.
Harrington conspired with Valentine Reveles, David Wilson, Christopher
Gathright, LaRoy Musking, Donald Smoot, Albert Holmes, Willie Foster, and
Jason Johnson to possess and distribute a controlled substance, namely one
kilogram or more of mixtures containing a detectable amount of heroin and 5
kilograms or more of mixtures containing a detectable amount of cocaine. Mr.
Harrington and his coconspirators also obtained quantities of marijuana for resale.
As part of this conspiracy, Mr. Harrington obtained wholesale quantities
of heroin and cocaine from Valentine Reveles. He also obtained wholesale
quantities of heroin and marijuana from Manuel Ramos. David Wilson also
supplied the conspiracy with cocaine.
...
At times, Mr. Harrington undertook steps to disguise the source of the
proceeds he received for his drug trafficking activities. Specifically, on June 15,
2007, in Lisle, Illinois, Mr. Harrington conducted a Western Union wire transfer
to DaimlerChrysler Financial Services for a 2007 Mercedes Benz s550v, in the
amount of $2000, using funds he had received through his participation in the
drug conspiracy. On June 12, 2008, he conducted a similar transaction in the
amount of $1149.74, which he had also obtained through the drug conspiracy.
(09 CR 0814, R. 346, Plea Decl., at 2-3.)
Mr. Harrington’s plea declaration also outlined the potential penalties he faced by
pleading guilty — “For Count One, a maximum sentence of life imprisonment, a statutory

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minimum sentence of 10 years, and a maximum fine of $4,000,000. For Counts Two and Three,
a maximum sentence of 20 years’ imprisonment and a maximum fine of $500,000.” (Id. at 4.)
In addition, at his change of plea hearing, the Court informed Mr. Harrington of the maximum
penalties he faced on these counts, as well as the mandatory minimum on Count One, and Mr.
Harrington confirmed that he understood that the Court could impose a sentence up to the
statutory maximum. (09 CR 0814, 1/31/11 Change of Plea Hr’g Tr., at 15-16.)
Furthermore, Mr. Harrington stated in his plea declaration that “Mr. Harrington notes, but
disagrees with, the government’s position that his offense level should be increased by 2 points
for possession of a firearm under Guideline § 2D1.1(b)(1).” (Plea Decl., at 2-3.) Also, Mr.
Harrington acknowledged that the amount of heroin involved in the conspiracy that the
government could prove by a preponderance of the evidence was either between 3 and 10
kilograms or between 10 and 30 kilograms. (Id.) The government’s position was that it could
prove in excess of 30 kilograms of heroin for a base level offense of 38. (Id.) Mr. Harrington
further acknowledged that he was an organizer or leader for purposes of U.S.S.G. § 3B1.1(a).
(Id. at 5.) At his change of plea hearing, the Court advised Mr. Harrington that the guideline
calculations in his plea declaration were preliminary and that the Court would determine the
applicable guideline calculation at the time of his sentencing. (1/31/11 Change of Plea Hr’g Tr.,
at 18-19.)
On December 12, 2011, Mr. Harrington proceeded to trial on Count Eighteen, namely,
the charge of possession of a firearm in furtherance of and carried during and in relation to the
conspiracy alleged in Count One in violation of 18 U.S.C. § 924(c)(1)(A). Mr. Harrington’s trial
resulted in a mistrial after the jury was unable to reach a verdict. On February 7, 2012, the

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government moved to dismiss Count Eighteen, which the Court granted. During the December
2011 jury trial on Count Eighteen, Mr. Harrington chose to testify on his own behalf. At trial,
Mr. Harrington admitted that he was a drug dealer — dealing in heroin and cocaine. Mr.
Harrington also testified that he was unable to quantify the total amount of drugs that he sold
during his career, but admitted that he sold a lot of drugs and made a lot of money doing so.
Further, Mr. Harrington stated that he had carried several firearms for protection for his drug
business. Nevertheless, Mr. Harrington testified that the Smith and Wesson handgun the police
found in his car on the day of his arrest — that formed the basis of Count Eighteen of the
superseding indictment — was not his firearm. In addition, Mr. Harrington maintained that he
would have pleaded guilty to the gun count had the government charged the correct gun.
On July 26, 2012, the Court sentenced Mr. Harrington to 264 months in prison — 264
months on Count One and 240 months each on Counts Two and Three to be served concurrently
to each other and Count One. Specifically, the Court determined that Mr. Harrington’s base
offense level was 36 with a drug amount of 10 to 30 kilograms of heroin. In addition, the Court
applied a four-level enhancement for a being leader/organizer and a two-level enhancement for
gun possession. Over the government’s objection, the Court gave Mr. Harrington a three-level
reduction for acceptance of responsibility. The Court also rejected to the government’s request
for an obstruction of justice enhancement.
Mr. Harrington did not directly appeal his conviction or sentence to the United States
Court of Appeals for the Seventh Circuit. On July 26, 2013, Mr. Harrington filed the present
Section 2255 motion. The government does not challenge the timeliness of Mr. Harrington’s
Section 2255 motion under 28 U.S.C. § 2255(f)(1).

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LEGAL STANDARD
“[R]elief under § 2255 is an extraordinary remedy because it asks the district court
essentially to reopen the criminal process to a person who already has had an opportunity for full
process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007); see also Bousley v.
United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Under Section 2255,
relief “is available only when the ‘sentence was imposed in violation of the Constitution or laws
of the United States,’ the court lacked jurisdiction, the sentence was greater than the maximum
authorized by law, or it is otherwise subject to collateral attack.” Torzala v. United States, 545
F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). Accordingly, a Section 2255 motion
is not a substitute for a direct criminal appeal nor is it a means by which a defendant may appeal
the same claims a second time. See Bousley, 523 U.S. at 621 (relief under 2255 “will not be
allowed to do service for an appeal”); Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007)
(Section 2255 motion is “neither a recapitulation of nor a substitute for a direct appeal.”)
(citation omitted). Nonetheless, because claims of ineffective assistance of counsel often involve
evidence outside of the trial record, such claims may be brought for the first time in a Section
2255 motion. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d
714 (2003); United States v. Flores, 739 F.3d 337, 341 (7th Cir. 2014).
ANALYSIS
In his Section 2255 motion, Mr. Harrington argues that his trial counsel was
constitutionally ineffective for: (1) improperly advising him as to the consequences of his guilty
plea and subsequent trial testimony; and (2) putting the interests of counsel’s law firm ahead of
Mr. Harrington’s interests. To establish constitutionally ineffective assistance of trial counsel,

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Mr. Harrington must show that (1) his trial attorney’s performance “fell below an objective
standard of reasonableness,” and (2) “but for counsel’s unprofessional errors the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Blake v. United States, 723 F.3d 870, 879 (7th Cir.
2013). “To reflect the wide range of competent legal strategies and to avoid the pitfalls of
review in hindsight, [the Court’s] review of an attorney’s performance is highly deferential and
reflects a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Yu Tian Li v. United States, 648 F.3d 524, 527-28 (7th Cir. 2011).
To establish prejudice, Mr. Harrington must “show that there is a reasonable probability
that, but for counsel’s errors, the result of the proceedings would have been different, such that
the proceedings were fundamentally unfair or unreliable.” Blake, 723 F.3d at 879. In the
context of a guilty plea, the United States Supreme Court has articulated that “a defendant who
pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character
of the guilty plea by showing that the advice he received was constitutionally ineffective.” Hill
v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (quotations omitted). In this
context, under the prejudice prong of the Strickland standard, Mr. Harrington “must show that
there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Lafler v. Cooper, ___
U.S. ___, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012) (“a defendant must show the outcome
of the plea process would have been different with competent advice”).
A Section 2255 petitioner may establish that he was denied effective assistance of
counsel based on an attorney’s conflict of interest two different ways: (1) under the Strickland

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standard; or (2) by showing that an actual conflict of interest adversely affected counsel’s
performance pursuant to Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333
(1980). See Freeman v. Chandler, 645 F.3d 863, 868-69 (7th Cir. 2011). Mr. Harrington seeks
to establish his ineffective assistance claim based on counsel’s conflict of interest pursuant to the
Strickland standard, under which he must establish prejudice. See Hall v. United States, 371
F.3d 969, 973 (7th Cir. 2004) (Under Strickland, “petitioner may show that his attorney had a
potential conflict of interest and that the potential conflict prejudiced his defense.”).2
Mr. Harrington argues that his trial counsel violated his Sixth Amendment right to
constitutionally effective assistance of counsel because counsel failed to advise him as to the
consequences of his decision to plead guilty to Counts One, Two, and Three and then go to trial
on Count Eighteen at which he testified to facts that were relevant to his sentencing guideline
calculations in respect to the drug quantity and firearm enhancement. Accordingly, Mr.
Harrington contends that trial counsel’s failures prejudiced him because the Court sentenced him
to a significantly lengthier sentence than it would have had counsel properly advised him. In
particular, Mr. Harrington contends that he received “almost 80 more months than what he was
led to believe was a likely sentence.”
The Court turns to whether trial counsel’s performance prejudiced Mr. Harrington
because it is dispositive. See Strickland, 466 U.S. at 697 (“a court need not determine whether
counsel’s performance was deficient before examining the prejudice suffered by the defendant”).
Put differently, “[c]ourts may deny ineffective assistance of counsel claims for lack of prejudice
without ever considering the question of counsel’s actual performance.” United States v. Taylor,

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See Memorandum of Law in Support of Petition, at page 9, footnote 2.
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569 F.3d 742, 748 (7th Cir. 2009).
At his January 31, 2011, change of plea hearing — at which Mr. Harrington pleaded
guilty to Counts One, Two, and Three of the superseding indictment — the Court asked Mr.
Harrington if he had read his plea declaration and whether he discussed his questions regarding
the plea declaration with counsel, to which Mr. Harrington answered “yes.” (09 CR 0814,
1/31/11 Hr’g Tr., at 15.) Further, the Court asked Mr. Harrington if he had any questions about
the plea declaration, to which he stated “no.” (Id.) Also, the Court asked him if his plea
declaration was true and accurate to the best of his knowledge and Mr. Harrington answered
“yes.” (Id.) Then, the government stated the statutory penalties for Counts One, Two, and
Three:
The maximum penalty for Count 1 is life imprisonment, a fine of $4
million and a term of supervised release of at least five year, up to and including
life.
For Counts 2 and 3, the maximum penalty for each is 20 years in
imprisonment and a fine of $500,000.
(Id. at 15.) Thereafter, the Court asked Mr. Harrington if he understood the maximum term of
imprisonment on Count One was life imprisonment, to which Mr. Harrington answered “yes.”
(Id.) The government further stated on the record that Count One carried an mandatory
minimum term of ten years and Counts Two and Three carry a 20 year maximum term of
imprisonment to which Mr. Harrington stated that he understood. (Id. at 16.) The Court
explained, “[s]o, the maximum term of imprisonment that the Court can impose by statute on the
crimes that you are offering to plead guilty to is up to life in prison. Do you understand that, Mr.
Harrington?” (Id.) Mr. Harrington answered “yes.” (Id.)
Furthermore, during his plea colloquy, the Court explained to Mr. Harrington that his
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counsel anticipated a guideline range of either 188 to 235 months for a base level offense of 36
or 235 to 293 months for a base level offense of 38. (Id. at 18-19.) Thereafter, the Court asked
Mr. Harrington if he understood this, and Mr. Harrington answered “yes.” (Id. at 19.) The Court
further stated that “it will be up to the Court to determine what the applicable Guideline range
is.” (Id.) Mr. Harrington stated that he understood this. (Id.) Mr. Harrington answered “no”
when the Court asked him if any promises had been made to him regarding his sentence and
again, asked him if he understood that it was the Court’s final decision as to his sentence, to
which he answered “yes.” (Id. at 20).
It is well-established that a district court’s explanation of the sentencing process to a
defendant during the defendant’s plea colloquy removes any possible prejudice of counsel’s
advise on the sentencing consequences. See Thompson v. United States, 732 F.3d 826, 830-31
(7th Cir. 2013) (per curiam) (citing Wyatt v. United States, 574 F.3d 455, 458–59 (7th Cir.
2009); Bethel v. United States, 458 F.3d 711, 718–20 (7th Cir. 2006)). At his change of plea
hearing, Mr. Harrington acknowledged the maximum sentences for Counts One, Two, and
Three, which included a life sentence. He also acknowledged that his counsel’s proposed
sentencing guidelines ranges included 188 to 235 months or 235 to 293 months, but that his
actual sentence might be higher because the Court controlled sentencing. See Thomspon, 732
F.3d at 831; Wyatt, 574 F.3d at 458-59. Indeed, Mr. Harrington’s statements at his change of
plea hearing — that he made under oath — directly contradict his current assertion that the
Court sentenced him to 80 more months than “what he was led to believe was a likely sentence.”
See Bethel, 458 F.3d at 719. Indeed, his 264 month sentence fell squarely within one of the
guideline ranges anticipated by his counsel.

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Also, in his Section 2255 motion and legal memoranda, Mr. Harrington does not argue
nor present evidence that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial on Counts One, Two, and
Three, which is a necessary component of establishing prejudice in the context of a guilty plea.3
See Hill, 474 U.S. at 59; Warren v. Baenen, 712 F.3d 1090, 1101 (7th Cir. 2013); see also Julian
v. Bartley, 495 F.3d 487, 498 (7th Cir. 2007) (in the plea agreement context, prejudice prong
focuses on whether counsel’s deficient performance was a decisive factor in the defendant’s
decision to plead guilty rather than going to trial).
In addition, Mr. Harrington was aware of the possible consequences that his trial
testimony might have on his sentence as evidenced by his testimony at his December 2011 trial
on Count Eighteen. In particular, on cross-examination, the government asked Mr. Harrington
about his plea declaration. Specifically, the government read the plea declaration into the record
as follows: “Mr. Harrington notes, but disagrees with, the government’s position that his
offense level should be increased by 2 points for possession of a firearm under Guideline §
2D1.1(b)(1).” (09 CR 0814, 12/16/11, Trial Tr., at 201.) Thereafter, the government asked Mr.
Harrington if that was his plea declaration and Mr. Harrington said yes. (Id.) Then, the
government asked Mr. Harrington — “But you take responsibility for those guns, right?” and
Mr. Harrington said, “Yes I do.” (Id.) On re-direct, Mr. Harrington acknowledged that the
Court could consider his trial testimony at sentencing. (Id. at 244-46.)

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Although Mr. Harrington signed his Section 2255 motion under penalty of perjury, he
does not state in his motion that but for counsel’s errors, he would not have pleaded guilty and
insisted on going to trial on Counts One, Two, and Three. See Weddington v. Zatecky, 721 F.3d
456, 464 (7th Cir. 2013).
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Mr. Harrington was also aware of the consequences of his trial testimony at his
sentencing hearing. Specifically, at his July 26, 2012 sentencing hearing, the following
exchange took place between the Court and Mr. Harrington:
Court: Mr. Harrington, have you reviewed the Presentence Investigation Report
and the April 25, 2012, supplemental report?
Defendant: Yes, ma’am.
Court: Have you reviewed them with your attorneys?
Defendant: Yes, ma’am.
Court: Other than the issues raised in the objections filed on your behalf by Mr.
Brindley [trial counsel] and the sentencing memo filed on your behalf, do you
have any other comments, corrections or objections to the information either of
these documents, sir?
Defendant: No, ma’am.
(09 CR 0814, 7/26/12 Sent. Tr., at 3.) It is undisputed that Mr. Harrington’s Supplemental
Presentence Investigation Report discussed the two-level firearm enhancement under U.S.S.G. §
2D.1(b). (See 09 CR 0814, R. 540, Supp. Report.) It is also undisputed that the government was
seeking a base offense level of 38 based on a drug quantity of over 30 kilograms of heroin,
although the Court found that there was less than 30 kilograms of heroin for a base level offense
of 36. (Sent. Tr., at 28-29.) Also at sentencing, Mr. Harrington stated:
My lawyers have been real honest with me. And I know that things could have
been different, but my eyes are now wide open. They’re very hopeful about how
this will go. But for me, I have been at MCC a long time. I understand the
Guidelines and what they are, and I have added it up.
(Id. at 84.)
Not only was Mr. Harrington abundantly aware of the sentencing consequences
associated with testifying at his own trial on Count Eighteen, Mr. Harrington cannot establish
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that “but for counsel’s errors, there is a reasonable probability that he would have received a
different sentence” as required to establish prejudice under Strickland. See Griffin v. Pierce, 622
F.3d 831, 844 (7th Cir. 2010) (citing Strickland, 466 U.S. at 695). As the Court explained at Mr.
Harrington’s sentencing hearing: “I do note that I am, as I am directed to do, sentencing the
defendant consistent with the factors in Section 3553; and, even if the Court’s Guideline
calculations were wrong, I would impose the same sentence that I am imposing now under the
3553 factors.” (Sent. Tr., at 90.) In other words, even if the Court had not found the drug
amount to be less than 30 kilograms or did not apply the two-level firearm enhancement pursuant
to U.S.S.G. § 2D.1(b), the Court would have still sentenced Mr. Harrington to 264 months in
prison. Therefore, the Court denies Mr. Harrington’s Section 2255 motion because Mr.
Harrington has failed to establish prejudice under the Strickland standard.
II.

Evidentiary Hearing
Because the motion, files, and records of this case conclusively establish that Mr.

Harrington is not entitled to any relief under Section 2255, the Court need not hold an
evidentiary hearing under the circumstances. See Yu Tian Li, 648 F.3d at 532; Koons v. United
States, 639 F.3d 348, 354-55 (7th Cir. 2011); 28 U.S.C. § 2255(b).
III.

Certificate of Appealability
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2255

Proceedings, the “district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Therefore, the Court must determine whether to grant Mr.
Harrington a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) in the present
Memorandum, Opinion, and Order. See Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 649

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n.5, 181 L.Ed.2d 619 (2012).
Under 28 U.S.C. § 2253(c)(2), a petitioner does not have the absolute right to appeal a
district court’s denial of his Section 2255 motion, instead, he must first request a certificate of
appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 154 L.Ed.2d 931
(2003). A petitioner is entitled to a certificate of appealability only if he can make a substantial
showing of the denial of a constitutional right. See id. at 336; United States v. Fleming, 676 F.3d
621, 625 (7th Cir. 2012). Under this standard, Mr. Harrington must demonstrate that
“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529
U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).
Mr. Harrington has not established that jurists of reason would debate that the Court
should have resolved his Section 2255 motion differently. Specifically, reasonable jurists would
not debate that Mr. Harrington failed to establish that but for counsel’s errors, there is a
reasonable probability that he would have received a different sentence, see Griffin, 622 F.3d at
844, or that but for counsel’s errors, he would have insisted on going to trial regarding Counts
One, Two, and Three. See Hill, 474 U.S. at 59. As such, the Court declines to certify any issues
for appeal.

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CONCLUSION
The Court denies Petitioner’s motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255 and declines to certify any issues for appeal pursuant to 28 U.S.C. §
2253(c)(2).
Dated: February 12, 2013
ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge

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