Harris v. USA

Filing 10

ORDER DENYING 28 U.S.C. 2255 petition and DISMISSING case with prejudice and DECLINING to issue certificate of appealablity. Signed by Judge David R. Herndon on 10/9/14. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
VICTORIA MCGEE HARRIS,
Petitioner,
No. 13-0963-DRH

vs.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM and ORDER
HERNDON, District Judge:
I. Introduction, Background and Procedural History
This matter is before the Court on Harris’ motion to vacate, set aside, or
correct sentence, pursuant to 28 U.S.C. § 2255 (Doc. 2).

The government

opposes the motion (Doc. 9) and Harris filed a reply (Doc. 7).

Based on the

following, the Court denies Harris’ petition. Further, having closely examined the
record, the Court concludes that an evidentiary hearing is not necessary in this
matter. It is proper to deny a § 2255 motion without an evidentiary hearing if “the
motion and the files and records of the case conclusively demonstrate that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); Cooper v. United States,
378 F.3d 638, 641–42 (7th Cir. 2004) (district court did not abuse its discretion
in denying petitioner an evidentiary hearing where petitioner did not provide
additional facts or assertions that would warrant a hearing).

Page 1 of 18

On March 24, 2011, Harris pled guilty to an information containing two
counts: Count 1 mail fraud in violation of 18 U.S.C. § 1341 and Count 2 engaging
in a monetary transaction over $10,000 in property derived from specified
unlawful activity in violation of 18 U.S.C. § 1957. United States v. Harris, 1130022-DRH; Docs. 4, 5, 6, & 7.

On February 17, 2012, the Court sentenced

Harris to 210 months in prison on Count 1 and 120 months on Count 2 to run
concurrently and judgment reflecting the same was entered on February 21, 2012.

Id. at Docs. 46 & 50.

During the proceedings, Harris was represented by

attorneys Adam Fein and N. Scott Rosenblum.

Thereafter, Harris, through

counsel, filed a notice of appeal. Id. at Doc. 53. On July 11, 2013, the Seventh
Circuit Court of Appeals issued the Mandate affirming Harris’ sentence and
conviction and denying the motion for rehearing in this case. Id. at Doc. 147.
Subsequently, Harris, through attorney Bradford Kessler, filed this § 2255
petition on September 18, 2013 (Doc. 2). Harris raises the following arguments
regarding ineffective assistance of counsel during her criminal case:
(1) counsel failed to inform her that an admission to an information was no
different than pleading guilty to an indictment had she been indicted by a grand
jury;
(2) counsel failed to inform her that by admitting to the information she
was in fact pleading guilty to the criminal charges of mail fraud and money
laundering, rather than merely admitting to the co-mingling of funds in an amount
over $10,000;
Page 2 of 18

(3) counsel failed to advise her that by pleading guilty to the charges, she
would likely be sentenced to a term under the federal sentencing guidelines of
between 135 and 168 months in prison; and
(4) counsel failed to challenge the voluntariness of the plea on direct appeal.
II. Legal Standard
The Court must grant a ' 2255 motion when a defendant's Asentence was
imposed in violation of the Constitution or laws of the United States.@ 28 U.S.C. '
2255.

More precisely, A[r]elief under ' 2255 is available only for errors of

constitutional or jurisdictional magnitude, or where the error represents a
fundamental defect which inherently results in a complete miscarriage of justice.@

Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994) (quotations omitted).
As a result, A[h]abeas corpus relief under 28 U.S.C. ' 2255 is reserved for
extraordinary situations.@ Prewitt v. United States, 83 F.3d 812, 816 (7th Cir.
1996); Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007).
Of course, a ' 2255 motion does not substitute for a direct appeal.

A

defendant cannot raise constitutional issues that he could have but did not
directly appeal unless he shows good cause for and actual prejudice from his
failure to raise them on appeal or unless failure to consider the claim would result
in a fundamental miscarriage of justice. Bousley v. United States, 523 U.S. 614,
622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Wainwright v. Sykes, 433 U.S. 72,
87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Fountain v. United States, 211 F.3d
429, 433 (7th Cir. 2000); Prewitt, 83 F.3d at 816. Meanwhile, a ' 2255 motion
Page 3 of 18

cannot pursue non-constitutional issues that were not raised on direct appeal
regardless of cause and prejudice. Lanier v. United States, 220 F.3d 833, 842
(7th Cir. 2000). The only way such issues could be heard in the ' 2255 context is
if the alleged error of law represents Aa fundamental defect which inherently
results in a complete miscarriage of justice.@ United States v. Addonizio, 442 U.S.
178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).
The failure to hear a claim for ineffective assistance of counsel in a ' 2255
motion is generally considered to work a fundamental miscarriage of justice
because often such claims can be heard in no other forum. They are rarely
appropriate for direct review since they often turn on events not contained in the
record of a criminal proceeding. Massaro v. United States, 538 U.S. 500, 504-05,
123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Fountain, 211 F.3d at 433-34. Further,
the district court before which the original criminal trial occurred, not an
appellate court, is in the best position to initially make the determination about
the effectiveness of counsel in a particular trial and potential prejudice that
stemmed from that performance.

Massaro, 538 U.S. at 504-05.

For these

reasons, ineffective assistance of counsel claims, regardless of their substance,
may be raised for the first time in a ' 2255 petition.
III. Analysis
The Sixth Amendment to the Constitution provides that A[i]n all criminal
prosecutions, the accused shall enjoy the right ... to have the Assistance of
Counsel for his defense.@

U.S. Const. amend. VI. This right to assistance of
Page 4 of 18

counsel encompasses the right to effective assistance of counsel.

McMann v.

Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). A
party claiming ineffective assistance of counsel bears the burden of showing (1)
that his trial counsel's performance fell below objective standards for reasonably
effective representation and (2) that this deficiency prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 688-94, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); Fountain v. United States, 211 F.3d 429, 434 (7th Cir. 2000). Either

Strickland prong may be analyzed first; if that prong is not met, it will prove fatal
to plaintiff's claim. Strickland, 466 U.S. at 697; Ebbole v. United States, 8 F.3d
530, 533 (7th Cir. 1993).
Regarding the first prong of the Strickland test, counsel's performance
must be evaluated keeping in mind that an attorney's trial strategies are a matter
of professional judgment and often turn on facts not contained in the trial record.

Strickland, 466 U.S. at 689.

The petitioner's burden is heavy because the

Strickland test is Ahighly deferential to counsel, presuming reasonable judgment
and declining to second guess strategic choices.@ United States v. Shukri, 207
F.3d 412, 418 (7th Cir. 2000) (quotations omitted). In other words, the Court
must not become a AMonday morning quarterback.@ Harris v. Reed, 894 F.2d
871, 877 (7th Cir. 1990). With regards to the second prong of Strickland, the
petitioner must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would have been different.

Fountain, 211 F.3d at 434; Adams v. Bertrand, 453 F.3d 428, 435 (7th Cir.
Page 5 of 18

2006). AA reasonable probability is defined as one that is sufficient to undermine
confidence in an outcome.@ Adams, 453 F.3d at 435 (citing Strickland, 466 U.S.
at 694).
In the instant case, the Court cannot say that neither Mr. Fein nor Mr.
Rosenblum’s

performance

significantly

prejudiced

Harris

or

that

their

representation fell below an objective standard of reasonableness. Further, the
Court cannot say that despite these alleged errors the results of the proceedings
would have been different.
As noted supra, Harris argues: (1) counsel failed to inform her that an
admission to an information was no different than pleading guilty to an
indictment had she been indicted by a grand jury; (2) counsel failed to inform her
that by admitting to the Information she was in fact pleading guilty to the criminal
charges of mail fraud and money laundering, rather than merely admitting to the
co-mingling of funds in an amount over $10,000; (3) counsel failed to advise her
that by pleading guilty to the charges, she would likely be sentenced to a term
under the federal sentencing guidelines of between 135 and 168 months in
prison; and (4) counsel failed to challenge the voluntariness of the plea on direct
appeal. The Court rejects all of these arguments and addresses them together as
they are interrelated.
Harris’ plea documents, statements during the plea hearing and her signed
waiver contradict these arguments.

It is clear to the Court that Harris was

informed of the nature of the proceedings and was aware of what she was
Page 6 of 18

pleading guilty to in the waiver of indictment. Moreover, Harris’ signed waiver of
indictment plainly contains charges of Mail Fraud in violation of 18 U.S.C. § 1341
and Engaging in Monetary Transaction Over $10,000 in Property Derived From
Specified Unlawful Activity, in violation of 18 U.S.C. § 1957. Harris, 11-30022DRH; Doc. 1. Further, her signed written agreement to plead guilty states:
she is actually guilty and will enter a plea of guilty to an Information,
charging: Count 1: Mail Fraud, in violation of Title 18 United States
Code, Section 1341, which carries a maximum statutory penalty of
20 years imprisonment, 3 years supervised release, mandatory
restitution, a fine up to $250,000, with a mandatory special
assessment of $100; and Count 2: Engaging in a Financial
Transaction over $10,000 from property derived from Mail
Fraud, in violation of Title 18, United States Code, Section 1957,
which carries a maximum statutory penalty of up to 10 years
imprisonment, 3 years supervised release and a fine of up to
$250,000, with a mandatory special assessment of $100.

Id. at Doc. 7, p. 4. That plea agreement also informed Harris that an anticipated
sentencing guideline range was 135-168 months. Id. at Doc. 7, p. 6. In addition,
the plea agreement informed her of the following:
The Defendant understands that the Sentencing Guidelines are
advisory only and that the Court has the discretion to sentence the
Defendant anywhere up to the statutory maximum sentence after
consideration of the Sentencing Guidelines, and the factors set forth
in 18 U.S.C. § 3553(a), including the nature and circumstances of the
offense(s) and the criminal history and characteristics of the
Defendant.

Id.

Further, during the hearing, Magistrate Judge Wilkerson thoroughly

addressed all these issues with Harris as the following colloquy took place:
THE COURT: All right. Now, Ms. McGee, have you seen a copy of the
information that we’re talking about this morning?
MS. HARRIS: YES.
THE COURT: Have you gone over it?
Page 7 of 18

MS. HARRIS: Yes.
THE COURT: Okay. I’m not asking you if you did it at this point.
What I am asking you is, do you understand what the government
says you did?
MS. Harris: Yes.
THE COURT: Ms. McGee, you have the right to be indicted under the
Constitution of the United States. No one can be charged except
upon indictment by a grand jury. Do you understand that right?
MS. HARRIS: Yes.
THE COURT: However, you can waive or give up that right to
indictment, and we may proceed by way of information. And that’s
what I’m told by your attorney that we want – that you want to do this
morning. Is that correct?
MS. HARRIS: Yes.
…
THE COURT: And it says that you have been advised of the nature of
the charges, proposed information, your rights and you waive in open
court, and there is a date. I’d like for you to date it and sign it, a
prosecution by indictment and consent that the proceedings may be
by information rather than indictment. Is that what you want to do,
proceed by way of information?
MR. HARRIS: Yes.
…
THE COURT: All right. And Ms. Harris, nobody has forced you to
sign this, right?
MS. HARRIS: No.
THE COURT: You signed it of your own free will?
MS. HARRIS: I did.
…
THE COURT: You want to waive your right to indictment and
proceed by information?
MS. HARRIS: I do.
THE COURT: All right. The Court is signing the waiver of indictment
and will find that – make a finding that Ms. Harris’ waiver of her right
to be indicted is a knowing and voluntary waiver, and the Court will
accept the same, and we will proceed by way of information in this
case.
…
THE COURT: Oh, I’m sorry. The information, how does she intend
to plead?
MR. FEIN: Not guilty to the information.
THE COURT: Okay. Is that correct?
MS. HARRIS: Yes, sir.
Page 8 of 18

MR. SMITH: Well, it’s – actually – it’s – it’s co-mingling an
arraignment and a plea of guilty.
THE COURT: Okay.
MR. SMITH: But you can clear that up.
MR. FEIN: But to the information, your Honor, there is a plea of not
guilty for the arraignment, but for the –
THE COURT: Oh, right, right, right. Okay.
MR. FEIN: See?
THE COURT: I misunderstood what – I didn’t – I didn’t understand
what you were saying. All right. You wish to enter an initial plea of
not guilty, and then we will go back. But I want to know how she
ultimately intends to plead today.
MR. FEIN: Guilty, Your Honor.
THE COURT: Okay. That’s what I wanted to know. Is that correct,
Ms. Harris, you intend to – as we go through these proceedings to
ultimately enter a plea of not guilty – of guilty – a plea of guilty?
MS. HARRIS: Okay. Yes.
THE COURT: All right. Now, for the record, all right – and thank
you, Mr. Fein. But for the record, I will enter an initial plea of not
guilty, and we will change it to a plea of guilty, all right. Do the
parties agree with that posture, Mr. Smith?
MR. SMITH: The United States concurs, your Honor.
MR. FEIN: Yes, your Honor.
THE COURT: All right. Very good. Before I accept your guilty plea,
Ms. Harris. There are a number of questions I’m going to order you
in order to assure myself that you are entering a valid plea. If you do
not understand any of the questions or at any time you wish to
consult with Mr. Fein, all you have to do is say so because it is
essential to a valid plea that you understand each question before
you answer. You understand that?
MS. HARRIS: Yes.
THE COURT: You have a right to consult with Mr. Fein.
MS. HARRIS: Right.
THE COURT: Tell me in your own words what we are doing here
today.
MS. HARRIS: We’re doing a stipulation of fact for a plea and –
MR. FEIN: What is your plea going to be?
MS. HARRIS: Not guilty and then guilty.
THE COURT: Okay. So you are here to plead guilty to the information,
correct?
MR. FEIN: Your Honor, the problem is when you say that, she is
pleading guilty to a stipulation of facts in the plea agreement. She
doesn’t agree with every fact in the information, so that is what is
confusing her. There is a stipulation of facts to which she is pleading
Page 9 of 18

guilty to and the plea agreement. It doesn’t mean that she agrees with
every fact in the information.
MR. SMITH: Allow the government to comment, your Honor?
THE COURT: Please.
MR. SMITH: Over the course of the plea negotiations, changes have
been made to a stipulation of facts that do not affect the factual basis
of the essential elements of the offenses. Therefore, the information
sets forth two counts, Count 1 being mail fraud and Count 2 being
money laundering in violation of 1957. That’s a cash transaction of
over $10,000 in property derived from specified unlawful activity.
There is a factual basis completely that covers all of this essential
elements in the stipulation of facts. There are some allegations in the
information that they still wish to contest or leave open for the
possibility of contesting. For example, the government believes the
amount of the loss is approximately $6 million’ whether it’s a little
below or a little above, it is going to be about 6 million.
They want to reserve the right to look further and potentially argue
that it is not 6 million. That’s not fatal to the plea, it’s not fatal to the
essential elements that substantiate the crimes. But they are just
leaving open for argument certain facts that are detailed in the
information.
I hope I made that simple.
…
THE COURT: All right. I’m going to go back and ask again. Do you
understand that you are pleading guilty to the charges contained in
this information?
MS. HARRIS: Yes.
THE COURT: Okay. Very good. Does either of you have any doubt as
to Ms. Harris’ competence to plead in this matter at this time?
MR. SMITH: From the facts of the investigation, your Honor, and
from personally meeting and speaking with Victoria McGee Harris, I
do believe she is competent.
MR. FEIN: I do not, your Honor.
…
The COURT: Ms. Harris, have you had ample opportunity to discuss
your case with Mr. Fein?
MS. HARRIS: Yes.
THE COURT: Are you satisfied with Mr. Fein’s representation of
you?
MS. HARRIS: Yes.
THE COURT: Has there been anything you wanted Mr. Fein to do for
you that he has not done?
MS. HARRIS: No.
…
Page 10 of 18

THE COURT: Okay. And, again, you have received a copy of the
information?
MS. HARRIS: Yes.
THE COURT: And you’ve gone over those charges in that information
with Mr. Fein?
MS. HARRIS: Yes.
…
MR. SMITH: Yes, your Honor. First off, the information, as I’ve
indicated, charges Count 1 mail fraud and Count 2 engaging in a
financial transaction over $10,000 in property derived from specified
unlawful activity, that being mail fraud.
The statutory penalties – and for clarification, not advisory
sentencing guidelines because we have had a lot of talk about those in
plea negotiations.
THE COURT: No, just the maximum, that’s what I want.
MR. SMITH: Right. Just for clarification for the defendant, your
Honor, the mail fraud carries a statutory penalty of up to 20 years
imprisonment, 3 years supervised release. Under the Alternative
Minimum Fines Act, it is up to $250,000 or twice the gross gain,
which could be implicated in this – in this case; 100-dollar special
assessment; and mandatory restitution.
The money laundering count in Count 2 carries a statutory penalty of
up to 10 years in prison, 3 years supervised release, a fine of up to
$250,000, or kicking in the Alternative Minimum Fines Act, twice the
gross gain; 100-dollar special assessment; and, again, mandatory
restitution.
The essential elements of mail fraud are: First, that Victoria McGee
Harris knowingly devised a scheme to defraud; second, she did so
knowingly and with the intent to defraud; third, for the purpose of
carrying out the scheme or attempting to carry out the scheme, she
used or caused the use of the United States mail. That would be the
essential elements for Count 1.
The essential elements for the money laundering count, your Honor,
in Count 2 are: First, that Victoria McGee Harris engaged or
attempted to engage in a monetary transaction; second, that she
knew at the time the transaction involved criminally derived
property; third, that the property had a value greater than $10,000;
fourth, the property was, in fact, derived from the SUA or specified
unlawful activity of mail fraud; and fifth, that the transaction
occurred in the United States.
Those would be the essential elements, your Honor.
THE COURT: Thank you, Mr. Smith.

Page 11 of 18

Ms. Harris, did you hear the essential elements that the government
would be required to prove beyond a reasonable doubt if you took
this matter to trial.
MS. HARRIS: I did.
THE COURT: Do you – did you hear the maximum possible
punishment you face if the Court accepts your guilty plea?
MS. HARRIS: I did.
THE COURT: Ms. Harris, has anyone threatened you or in any way
tried to force you to plead guilty in this matter?
MS. HARRIS: No.
THE COURT: All right. What I went through with, Ms. Harris, with
the lawyers is, you have no agreement with the government. You are
just pleading guilty to the charges in contained in the information. Is
that your understanding of what’s going on here?
MS. HARRIS: Yes.
THE COURT: Okay. There is a document there, though, that I placed
in front of you which is your agreement to plead guilty.
MS. HARRIS: Mmm hmm.
THE COURT: I’m going to draw your attention to the last page. Is
that your signature?
MS. HARRIS: It is.
THE COURT: Anybody force you to sign that?
MS. HARRIS: No.
THE COURT: And that is your intention, to plead guilty, correct?
MS. HARRIS: Yes.
…
THE COURT: Have you and Mr. Fein talked about how the
sentencing commission guidelines might apply to your case?
MS. HARRIS: Yes.
THE COURT: While the Court must be advised by these guidelines,
Ms. Harris, in determining the particular sentence to impose, the
Court will consider certain statutory factors under Section 3553 of
Title 18, including, among other things, the nature and
circumstances of the offense and the nature and characteristics of the
defendant.
The Court will impose a sentence sufficient but not greater than
necessary to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense, and to
adequately deter future criminal conduct.
Have you and Mr. Fein talked about how these statutory factors
outside the guideline might apply to your sentence.?
MS. HARRIS: We did.
THE COURT: Do you understand that a presentence report will be
completed to assist the Court in sentencing you, and you and the
Page 12 of 18

government will have an opportunity to challenge the facts reported
by the probation office? Do you understand that?
MS. HARRIS: Yes.
…
THE COURT: Do you understand if the sentence is more severe than
you expected, you will still be bound by your plea and have no right
to withdraw it?
MS. HARRIS: Yes.
THE COURT: … I have been handed a document here, Ms. Harris, a
stipulation of facts. I’m going ot pass that over to Mr. Fein. I’m going
to draw your attention to Page 2. Is that your signature?
MS. HARRIS: It is on Page 3.
THE COURT: Page 3, I’m sorry, the last page. That’s your signature?
MS. HARRIS: Mmm hmm.
THE COURT: “Mmm hmm” won’t work. You’ve got to say it.
MS. HARRIS: Yes.
THE COURT: Did anybody force you to sign it?
MS. HARRIS: No.
THE COURT: Have you gone over this document from beginning to
end?
MS. HARRIS: Yes.
THE COURT: Read every word?
MS. HARRIS: Yes.
The COURT: Is there anything in this document you disagree with?
MS. HARRIS: No.
THE COURT: Did you do the things that the government said that
you did in this document?
MS. HARRIS: Yes.
…
THE COURT: Ms. Harris, are you pleading guilty because you are
guilty?
MS. HARRIS: Yes.
THE COURT: You are not pleading guilty for some other reason?
MS. HARRIS: No.
The COURT: All right. At this time, I am going to ask you, how do
you plead to the two counts charged in the information – just one
second – Count 1, which charges you with mail fraud, and Count 2,
which charges you with engaging in a monetary transaction over
$10,000 in property derived from specified unlawful activity? How
do you plead?
MS. HARRIS: Guilty.
THE COURT: Ms. Harris, since you acknowledge that you are, in fact,
guilty as charged in Counts 1 and 2 of the information, since you
know your right to a trial, what the maximum possible punishment
Page 13 of 18

is, and since you are voluntarily pleading guilty, I will accept your
guilty plea.

Harris, Doc. 76; Initial Appearance and Plea to an Information hearing transcript.
Based on the foregoing, the Court finds that Harris’ petition fails.

Her

claims that her attorneys were ineffective are without merit. The Court finds that
Harris has not met the burden regarding the involuntariness of her plea.

“A

reasonably competent lawyer will attempt to learn all of the relevant facts of the
case, make an estimate of a likely sentence, and communicate the results of that
analysis to the client before allowing the client to plead guilty.” Bethel v. United

States, 458 F.3d 711, 717 (7th Cir.2006). The Supreme Court has acknowledged
that the decision to plead guilty involves many uncertainties: “[b]ecause many
questions about the facts and how a court or jury will apply the law to those facts
cannot be answered by counsel with certitude, ‘[w]aiving trial entails the inherent
risk that the good-faith evaluations of a reasonably competent attorney will turn
out to be mistaken either as to the facts or as to what a court's judgment might be
on given facts.’ “ Id. ( quoting McMann v. Richardson, 397 U.S. 759, 769–70, 90
S.Ct.

1441,

25

L.Ed.2d

763

(1970)).

Furthermore,

while

“a

gross

mischaracterization of the sentencing consequences of a plea may strongly
indicate deficient performance, it is not proof of deficiency.” Bethel, 458 F.3d at
717. The critical question for the Court to consider is “whether counsel undertook
a good-faith effort to determine the applicable facts and estimate the sentence. An
inaccurate prediction of a sentence alone is not enough to meet the standard.” Id.
Page 14 of 18

Also, Harris does not offer support for her allegation that her attorneys did
not advise her properly. See McCleese v. United States, 75 F.3d 1174, 1179 (7th
Cir. 1996) (petitioner must present objective evidence that he would not have
entered the guilty plea; his own self-serving testimony is not enough). Therefore,
her claims of ineffective assistance of counsel on these grounds do not succeed.

See United States v. Jordan, 870 F.2d 1310, 1318 (7th Cir.), cert. denied, 493
U.S. 831 (1989)(holding that even assuming petitioner’s counsel should have
advised petitioner of possible consequences of his plea, petitioner has the burden
to offer evidence to support the bare allegations that his counsel failed to advise
him of these possibilities). Also, Harris’ arguments are belied by her statements
at the change of plea hearing which are presumed truthful. See United States v.

Standiford, 148 F.3d 864, 868 (7th Cir. 1998).
Magistrate Judge Wilkerson informed Harris that the Court would not be
able to determine the guideline impact for the sentence in her case until after the
Presentence Report was prepared and the Court reviewed the objections of the
parties and that the sentence results from that may be different from the one
provided by counsel and the plea agreement. Having all that spelled out quite
carefully, having admitted to actually committing the charged crimes, and having
been expressly admonished as to the consequences of her plea, Harris elected
to go forward. Manifesting neither confusion nor hesitation, Harris pled guilty. As
stated before, Harris was aware of the consequences and decided to plead guilty.

Page 15 of 18

Moreover, the Court finds it telling that Harris never sought to withdraw
her ill-advised guilty plea, despite the fact she had close to eleven months between
pleading guilty and being sentenced, during which time she was released on bond.
Lastly, the Court notes that Harris is an educated woman with a Master’s Degree
in Liberal Arts.
The Court finds that Harris’ claims that her attorneys were ineffective are
without merit. Her bald assertions (which are either not true or not supported by
the record) that her counsel were ineffective are insufficient basis to grant her the
relief she seeks. “An ineffective assistance of counsel claim cannot stand on a
blank record, peppered with the defendant’s own unsupported allegations of
misconduct.” United States v. Hodges, 259 F.3d 655, 660 (7th Cir. 2001); Fuller

v. United States, 398 F.3d 644, 652 (7th Cir. 2005)(finding that a claim of
ineffective assistance unsupported by “actual proof of [his] allegations” cannot
meet the threshold requirement for purposes of § 2255). In fact, the Court finds
that her attorneys’ actions were reasonable and sound in light of the
circumstances.
Harris’ sentence and conviction are legal.

She has not shown that her

sentence was Aimposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack,@ 28 U.S.C. ' 2255. Thus, the Court rejects Harris’ 28
U.S.C. ' 2255 petition/motion.

Finally, the Court notes that letting Harris’
Page 16 of 18

conviction and sentence stand would not result in a fundamental miscarriage of
justice. Murray v. Carrier, 477 U.S. 478, 495 (1986).
Under the 2009 Amendments to Rule 11(a) of

THE

RULES GOVERNING

SECTION 2255 PROCEEDINGS, the Adistrict court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.@ Thus, the
Court must determine whether petitioner=s claims warrant a certificate of
appealability pursuant to 28 U.S.C. ' 2253(c)(2).
A habeas petitioner does not have an absolute right to appeal a district
court=s denial of his habeas petition; he may appeal only those issues for which a
certificate of appealability have been granted. See Sandoval v. United States, 574
F.3d 847, 852 (7th Cir. 2009). A habeas petitioner is entitled to a certificate of
appealability only if he can make a substantial showing of the denial of a
constitutional right. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); 28 U.S.C. '
2253(c)(2). Under this standard, petitioner must demonstrate that, Areasonable
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.=@ Id. (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).
Where a district denies a habeas petition on procedural grounds, the court
should issue a certificate of appealability only if (1) jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right, and (2) jurists of reason would find it debatable whether the district court
Page 17 of 18

was correct in its procedural ruling. See Slack, 529 U.S. at 485.
As to petitioner=s claims, the Court finds that reasonable jurists would not
debate that the petition does not present a valid claim of the denial of a
constitutional right, or that this Court is barred from reviewing the merits of
petitioner=s claim. Reasonable jurists could not debate that the petition should
have been resolved in a different manner, as petitioner=s claims of ineffective
assistance of counsel do not present evidence of constitutionally deficient attorney
performance; nor do they demonstrate resulting prejudice. Therefore, the Court
declines to certify any issues for review pursuant to 28 U.S.C. ' 2253(c).

IV. Conclusion
Accordingly, the Court DENIES Harris’ motion under 28 U.S.C. ' 2255
motion to vacate, set aside or correct sentence by person in federal custody and
the supplements to the petition.

The Court DISMISSES with prejudice this

cause of action. The Court ORDERS the Clerk of the Court to enter judgment
reflecting the same.

Further, the Court DECLINES to issue a certificate of

appealability.
IT IS SO ORDERED.
Signed this 9th day of October, 2014.

Digitally signed
by David R.
Herndon
Date: 2014.10.09
16:39:20 -05'00'
United States District Court

Page 18 of 18