Harris v. USA
Filing
12
ORDER DENYING 1 Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by Susan L. Harris. Signed by Judge Nancy J. Rosenstengel on 11/20/2017. (mlp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SUSAN L. HARRIS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. 3:14-CV-1323-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
This matter comes before the Court on Petitioner Susan L. Harris’s Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). For the
reasons set forth below, the motion is denied.
BACKGROUND
I.
Underlying Criminal Case
In 2011, Petitioner Susan L. Harris and her co-defendant, Ashley Drummond,
stole various identities and used them to open credit card accounts in Madison County
and St. Clair County. United States v. Harris, SDIL Case No. 3:12-CR-30226, Doc. 80. 1
Drummond worked at Anderson Hospital, where she was able to acquire the personal
identifying information of elderly patients from hospital charts and computer records.
Id. at 4. Harris and Drummond would then use the elderly patients’ personal
1
Citations to Petitioner’s criminal case will be cited throughout this Order as SDIL Case No.
3:12-CR-30226.
Page 1 of 16
identifying information to open credit card accounts in the victims’ names. Id. At least
eleven elderly patients were defrauded of approximately $10,190.74.
On December 7, 2011, Drummond was arrested for the theft of a patient’s credit
card after being caught on surveillance footage. Id. at 4. Following Drummond’s arrest,
federal investigators learned of Harris’s involvement. Id. at 5. On July 19, 2012, Harris
was indicted on two counts: Count I—Conspiracy to Commit Mail Fraud, in violation
of 18 U.S.C. § 1341 and 18 U.S.C. § 1349, and Count III—Aggravated Identity Theft, in
violation of 18 U.S.C. § 1028A. SDIL Case No. 3:12-CR-30226, Doc. 1. Assistant Federal
Public Defender Daniel G. Cronin was appointed to represent Harris on July 30, 2012.
Id. at Doc. 16.
On the day Harris was released on bond, she submitted to a drug test, which
turned up positive for marijuana. SDIL Case No. 3:12-CR-30226, Doc. 80. On July 29,
2012, Harris was referred to Chestnut Health Services in Granite City for mental health
and substance abuse treatment. Harris had a troubled background and previously had
been diagnosed with bipolar disorder, attention deficit hyperactivity disorder,
post-traumatic stress disorder, anger management issues, and depression. Id. at Doc. 80,
pp. 20-21. On September 5, 2012, Harris underwent an integrated mental health and
substance abuse assessment at Chestnut Health. At the conclusion of the assessment, it
was recommended that Harris be monitored for changes in cognition, affect, and
behavior; however, it was also recommended that treatment be terminated as there was
Page 2 of 16
no finding of addiction or an Axis I diagnosis. 2 Id. at 21.
Defense counsel testified in his affidavit that he was aware of Harris’s troubled
past and mental health issues and, for those reasons, early in the case he had discussed
retaining a psychologist for possible sentencing mitigation purposes (Doc. 6-1, ¶ 4).
Prior to November 22, 2012, counsel had nine meetings with Harris (Id.). At each
meeting, Harris asked pertinent questions and gave detailed responses to counsel’s
questions (Id.). Thus, counsel had no doubts as to her competency and no basis for
requesting a competency exam (Id.). Harris does not rebut these facts. Counsel further
testified that on September 7, 2012, he sent Harris a letter detailing her case and giving
her a sentencing chart that reflected sentencing guidelines and a possible Rule 35
reduction. (Id.). Harris denies receiving this letter (Doc. 7).
On November 22, 2012, Harris was hospitalized at St. Elizabeth’s Hospital after it
was suspected that she intentionally overdosed on Xanax. SDIL Case No.
3:12-CR-30226, Doc. 80 at p. 21. Counsel states that he was concerned about this
incident, reviewed the police report and medical records, and discussed the incident
with Harris (Doc. 6-1, ¶5). While the medical records indicated diagnoses of depressive
disorder, posttraumatic stress disorder, personality disorder, chronic mental illness, and
significant character pathology, her physician concluded she was not a candidate for
involuntary admission because she was demonstrating alertness, impulse control, good
judgment, and logical thought after release (Doc. 6-1, at 2). Counsel attests that his own
2
Axis I clinical disorders include the major mental disorders such as schizophrenia, bipolar, depression,
and anxiety disorders. Diagnostic and Statistical Manual of Mental Disorders (4th ed. Text Rev. 2000).
Page 3 of 16
impression of Harris after her overdose was consistent with those findings (Id.).
On December 3, 2012, Magistrate Judge Stephen C. Williams held a change of
plea hearing, but Harris abruptly aborted her plea and decided to go to trial. SDIL Case
No. 3:12-CR-30226, Doc. 53. Harris states that she stumbled during her “attempted”
guilty plea, at which point counsel told her she was embarrassing him for “being so
high” and now she had to go to trial (Doc. 1). Counsel testified that he was concerned
Harris was over-medicated on valid prescription medication or possibly under the
influence of illegal drugs that day, but did not view that possibility as calling her
competency into question. He denies telling Harris he was embarrassed by her or that
she had to go to trial (Doc. 6-1, ¶ 6).
On December 5, 2012, a jury convicted Harris on both counts. Case No.
3:12-CR-30226, Docs. 59, 61. Defense counsel filed a sentencing memorandum arguing
that a sentence between 36 and 42 months would “fully take into account Susan Harris’s
tragic childhood…” Id. at Doc. 82. On March 25, 2013, the Honorable G. Patrick
Murphy 3 sentenced Harris to 24 months’ imprisonment on each count, to run
consecutively. Harris also was required to pay $7,648.97 in restitution. Id. at Doc. 85.
The court also stated that Harris “might benefit from a program of mental health
treatment,” including a psychiatric evaluation, in order to determine “why someone
that’s of reasonable intelligence and with some job skills would just for almost all your
adult life be involved in some scam, one after another . . . [and] would be assaultive, as
you have shown yourself to be.” Id. at Doc. 99, p. 22.
3
Judge Murphy retired on December 1, 2013.
Page 4 of 16
Harris appealed her conviction to the Seventh Circuit Court of Appeals on April
5, 2013, and initially was represented by defense counsel. Id. at Doc. 88. After defense
counsel declared a “conflict of interest,” Harris was appointed new counsel on appeal.
Id. at Docs. 106, 117. Harris alleged she was denied an accurate and reliable jury
determination because the district court empaneled an anonymous jury. Id. at Doc.
133-2, at 4. The Seventh Circuit Court of Appeals rejected Harris’s argument and
affirmed her conviction and sentence on September 9, 2014. Id. at Docs. 133-1, 133-2.
According to the website maintained by the Bureau of Prisons, Harris was released
from the custody on September 13, 2016. 4
II.
§ 2255 Petition
Harris filed her pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant
to 28 U.S.C. § 2255 on November 26, 2014 (Doc. 1). The Court ruled that Harris’s
petition survived preliminary review under Rule 4 of the Rules Governing Section 2255
Proceedings and directed the Government to respond by July 15, 2015. Harris was
directed to reply by July 29, 2015 (Doc. 5). On July 15, 2015, the government responded
to the motion (Doc. 6), and approximately two weeks later, Harris replied to
government’s response (Doc. 7).
In her petition, Harris asks the Court to reduce her sentence by twelve months
because her counsel was constitutionally ineffective. Specifically, Harris claims counsel:
(1) failed to investigate competency or request a competency hearing
when competency was at issue;
4
Unfortunately, Harris has not updated her address with the Clerk of Court (see Doc. 11).
Page 5 of 16
(2) did not act in Harris’s best interest by not ordering a competency
exam;
(3) gave erroneous advice concerning the Residential Drug Abuse
Program; and
(4) misadvised Harris about her sentencing exposure if she pleaded guilty
instead of going to trial.
(Doc. 1). Harris claims that, had she been competent and had counsel given proper
advice, she would have pleaded guilty rather than going to trial.
DISCUSSION
Title 28, Section 2255 of the United States Code requires a court to vacate, set
aside, or correct the sentence of a prisoner in custody if it finds that “the sentence was
imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255.
However, the “in custody” requirement of the statute does not prevent claims to be
brought by petitioners who have now served their sentences but previously filed their
motions while still in custody. Carafas v. LaVallee, 391 U.S. 234, 239 (1968) (holding that
petitioner was still entitled to have the merits of his claim considered after his sentence
expired because petitioner could still be “bear[ing] the consequences of assertedly
unlawful conviction”).
Habeas corpus relief under § 2255 is reserved for extraordinary situations. Brecht
v. Abrahamson, 507 U.S. 619, 633-34 (1993); see also Blake v. United States, 723 F.3d 870,
878-79 (7th Cir. 2013). A petitioner can meet the threshold requirement of an
extraordinary situation by demonstrating an “error of constitutional or jurisdictional
magnitude or where a fundamental defect has occurred which results in a complete
Page 6 of 16
miscarriage of justice.” Blake, 723 F.3d at 878-79 (citations omitted). “[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) (citing Kafo v. United States, 467
F.3d 1063, 1068 (7th Cir. 2006)).
I.
Evidentiary Hearing
An evidentiary hearing for a 28 U.S.C. § 2255 motion is only granted when “the
petitioner alleges facts that, if proven, would entitle him to relief.” Kafo v. United States,
467 F. 3d 1063, 1067 (7th Cir. 2006). But if “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief,” a hearing is not
required. Id. Allegations that are “vague, conclusory, or palpably incredible rather than
detailed and specific” do not warrant a hearing. Bruce v. United States, 256 F.3d 592, at
597 (7th Cir. 2001). Likewise, “mere speculation” does not warrant an evidentiary
hearing, as the petitioner “must file [a] detailed and specific affidavit showing he has
actual proof of allegations he is making.” Miller v. United States, 183 Fed. Appx. 571, 578
(7th Cir. 2006). For evidentiary hearing consideration, the Seventh Circuit requires a
petition made pursuant to 28 U.S.C. § 2255 to “include an affidavit setting forth the
specific basis for relief.” Kafo, 467 F.3d at 1067. An affidavit accompanying the petition
is a threshold requirement; “its absence precludes the necessity of a hearing.” Id. The
specific allegations in the petition and accompanying affidavit must go beyond merely
unsupported assertions, as “[m]ere unsupported allegations cannot sustain a
Page 7 of 16
petitioner’s request for a hearing.” Prewitt v. United States, 83 F.3d 812, at 819 (7th Cir.
1996).
Harris has not requested an evidentiary hearing, nor does the Court find that a
hearing is required. Even accepting Harris’s version of the facts as true, the evidence
and record do not support a finding that counsel fell below an objective standard of
reasonableness in his representation or that petitioner was unduly prejudiced. Because
the record in this case conclusively shows Harris is not entitled to any relief, no
evidentiary hearing is required.
II.
Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is properly raised in a § 2255 motion
because it implicates the Sixth Amendment, which provides criminal defendants the
right to counsel. U.S. CONST. amend. VI. Generally speaking, counsel is ineffective when
his or her conduct “so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984). This Circuit has held that ineffective assistance
claims are “best addressed through a motion in collateral proceeding pursuant to § 2255
because the trial record is not developed precisely for the object of litigating or
preserving the claim.” Cooper v. United States, 378 F.3d 638, 641 (7th Cir. 2004) (quotation
and citation omitted).
“To demonstrate that the right to counsel was violated by ineffective assistance, a
person challenging a conviction must meet the familiar two-part standard set forth in
Page 8 of 16
Strickland.” McElvaney v. Pollard, 735 F.3d 528, 532 (7th Cir. 2013) (citing Strickland, 466
U.S. at 688). The petitioner must show that counsel’s performance was deficient,
“meaning it fell below an ‘objective standard of reasonableness’ informed by ‘prevailing
professional norms.’” Id. (quoting Strickland, 466 U.S. at 688); see also Sussman v. Jenkins,
636 F.3d 329, 349 (7th Cir. 2011) (“The question is whether an attorney’s representation
amounted to incompetence under ‘prevailing professional norms,’ not whether it
deviated from best practices or most common custom.”) (quoting Harrington v. Richter,
562 U.S. 86, 88 (2011)).
The petitioner also must show that “counsel’s deficient performance prejudiced
him, meaning that there is a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
McElvaney, 735 F.3d at 532 (quoting Strickland, 466 U.S. at 688). When challenging a
sentence, “a petitioner must show that but for counsel’s errors, there is a reasonable
probability that he would have received a different sentence.” Griffin v. Pierce, 622 F.3d
831, 844 (7th Cir. 2010) (citing Strickland, 466 U.S. at 695). “A reasonable probability is a
probability sufficient to undermine confidence” in the sentence. Taylor v. Bradley, 448
F.3d 942, 950 (7th Cir. 2006). It is not enough to show that the errors possibly had “some
conceivable effect” on the sentence. Strickland, 466 U.S. at 694.
“Surmounting Strickland’s high bar is never an easy task.” Harrington, 562 U.S. at
105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)); see also Shell v. United States, 448
F.3d 951, 955 (7th Cir. 2006) (“[A] party bears a heavy burden in making a winning claim
Page 9 of 16
based on ineffective assistance of counsel.”); Sullivan v. Fairman, 819 F.2d 1382, 1391 (7th
Cir. 1987) (explaining that “few petitioners” are expected to be able to pass through the
“eye of the needle created by Strickland”).
The Court may address the elements of the Strickland test “in whichever order is
most expedient.” Watson v. Anglin, 560 F.3d 687, 690 (7th Cir. 2009); Strickland, 466 U.S.
at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.”)
A petitioner’s “failure to satisfy either prong is fatal to his claim.” Ebbole v. United States,
8 F.3d 530, 533 (7th Cir. 1993) (citing United States v. Slaughter, 900 F.2d 1119, 1124 (7th
Cir. 1990)).
a.
Failure to Order a Competency Exam
In Harris’s first two claims, she argues counsel was ineffective when he failed to
order her a competency exam, when competency was at issue in her case. Harris alleges
counsel, as well as the Court, had information concerning her behavior including
“suicide attempts[,] depression, manic episodes[,] and unusual assaultive behavior.”
Harris claims that had she been competent, she would have followed through with her
guilty plea. The Government contends that Harris fails to demonstrate how her
behavioral issues deem her incompetent to plead guilty or decide to stand trial, and
counsel’s sworn testimony on their numerous meetings supports her competency.
The standard for measuring a defendant’s competency to plead guilty is the same
as the competency standard to stand trial—both require defendant to have “sufficient
Page 10 of 16
present ability to consult with his lawyer with a reasonable degree of rational
understanding” and “a rational as well as factual understanding of the proceedings
against him.” Godinez v. Moran, 509 U.S. 389, 396 (1993) (citing Drusky v. Missouri, 420
U.S. 162, 171 (1975)). If a defendant “lacks the capacity to understand the nature and
object of the proceedings against him, to consult with counsel, and to assist in preparing
his defense,” defendant may not be subject to stand trial. Drope v. Missouri, 420 U.S. 162,
171 (1975).
Here, Harris has failed to demonstrate how counsel’s failure to order a
competency exam fell below an objective standard of reasonableness. “The
reasonableness of counsel’s performance is to be evaluated from counsel’s perspective
at the time of the alleged error and in light of all circumstances.” Kimmelman v. Morrison,
477 U.S. 365, 381 (1986). Harris does not allege that she did not understand the claims
against her, nor does she allege she was unable to consult and assist counsel in the case
against her. Furthermore, counsel met with Harris nine times before her change of plea
hearing and advised her about her case after she aborted the plea. In his affidavit, under
penalty of perjury, counsel states that Harris appeared to understand the case against
her at each meeting. Defense counsel’s belief in his client’s competency was further
supported by the doctor’s report finding Harris was alert and demonstrated logical
thought after her release from St. Elizabeth’s Hospital (Doc. 6-1, at 2). While Judge
Murphy mentioned during sentencing that Harris could benefit from mental health
treatment, his comment was not in reference to her mental capacity, but rather her
Page 11 of 16
continued involvement in scams and her “assaultive” nature, when she has the
intelligence and skills to do something with her life.
Accordingly, counsel’s belief in Harris’s competency was objectively reasonable
at the time of the proceedings, and his failure to order a competency exam does not
constitute ineffective assistance of counsel.
b.
Erroneous Advice Concerning Residential Drug Abuse Program
In Harris’s third claim, she argues counsel gave erroneous advice regarding the
Residential Drug Abuse Program (RDAP), which allows prisoners who are convicted of
nonviolent offenses to receive sentence reductions after successfully completing the
drug treatment program. See 18 U.S.C. § 3621(e)(2). Harris alleges counsel falsely
informed her she was eligible for a sentence reduction under § 3621(e) when she was not.
The Government denies Harris’s allegations that counsel gave erroneous advice
on the RDAP. Counsel attests that he never gave Harris such advice because he never
believed she was qualified for the program and there was no documented need for
treatment (Docs. 6; 6-1).
Even if counsel had given such advice, however, the Court finds that Harris has
failed to demonstrate the prejudice necessary to succeed on her claim. “Mistakes in an
attorney’s advice to a client do not constitute, per se, ineffective counsel.” Galbraith v.
United States, 313 F.3d 1001, 1009 (7th Cir. 2002) (citing United States v. Teller, 762 F.2d
569, 577 (7th Cir. 1985)). A petitioner must be able to show that but for counsel’s errors,
there is a reasonable probability that he would have received a different sentence.”
Page 12 of 16
Griffin v. Pierce, 622 F.3d 831, 844 (7th Cir. 2010) (citing Strickland, 466 U.S. at 695).
Here, whether Harris was eligible for the RDAP program and could possibly
receive a sentence reduction in the future after completing the program has no bearing on
the sentence she actually received—whether after a jury trial or by way of a guilty plea.
Thus, she cannot show that, but for counsel’s errors, there is a reasonable probability she
would have received a different sentence. See Griffin, 622 F.3d at 844 (“a petitioner must
show that but for counsel’s errors, there is a reasonable probability that he would have
received a different sentence”).
c.
Erroneous Advice Regarding Sentencing Exposure
Harris’s final claim is that counsel did not properly advise her about her
sentencing exposure had she pleaded guilty versus going to trial. She claims counsel
advised her that her mandatory minimum 24-month sentence would have to be served
when, in reality, a “Rule 35 or 5K could have reduced my mandatory minimum.”
(Doc. 1, p. 12). Harris argues that, had she known her sentence could be reduced if she
cooperated with the Government, she would have pleaded guilty rather than going to
trial. Id.
The Government contends that counsel sent Harris a letter, dated September 7,
2012, detailing her potential sentencing exposure before trial. In the letter, which the
Government attached as an exhibit, counsel states: “[t]he prosecutor is not ruling out my
request to dismiss the current charges against you in favor of a new charge, misprision of
a felony. Of course, neither is she agreeing at this point to do so.” (Doc. 6-2, at 1). In
Page 13 of 16
regard to Rule 35, counsel advises Harris that she may receive a Rule 35 reduction after
sentencing “if [she] truthfully cooperates with the prosecutor,” and that “not everyone
who cooperates with the government gets a Rule 35 motion.” The Government contends
this letter contradicts Harris’s allegations. Harris argues she never received such letter
and implies the letter was fabricated by the Government to defend against this case.
Assuming counsel sent the letter to Harris, his performance clearly does not fall
below an objective standard of reasonableness. The September 7, 2012 letter explained,
in detail, Harris’s sentencing possibilities, including the guideline ranges, that she could
receive a reduction in her offense level for acceptance of responsibility, that she could
receive a Rule 35 reduction a year after sentencing, and that the prosecutor was still
considering dismissing the current charges in favor of a new charge, misprision of a
felony, but that no deal was in their hands yet. Thus, counsel’s “pre-trial performance
regarding the plea agreement was within the range of competence we demand from
criminal attorneys.” United States v. Golden, 102 F.3d 936, 943 (7th Cir. 1996).
Even if the Court assumes, however, that Harris did not receive the letter, she has
failed to demonstrate the required prejudice. Where a petitioner alleges attorney
incompetence resulting in her rejection of a plea agreement, the Court must consider
whether the petitioner has established (1) through objective evidence that (2) there is a
reasonable probability that she would have accepted the alleged proposed plea
agreement absent defense counsel’s advice. Paters v. United States, 159 F.3d 1043, 1046
(7th Cir. 1998).
Page 14 of 16
Here, Harris has not pointed to any objective evidence whatsoever demonstrating
she would have pleaded guilty had she known about potential sentence reductions for
cooperating with the Government. There is no record of any purported plea agreement
offered to Harris, and she has provided no affidavit or other evidence indicating an offer
was on the table that she would have taken had she known her sentence may be reduced
if she cooperated. Moreover, under Rule 35(b), 18 U.S.C.S. § 3553(e), and U.S. Sentencing
Guidelines Manual § 5K1.1, the Government may motion for the court to reduce the
sentence of a defendant for “substantial assistance in the investigation or prosecution of
another person who has committed an offense.” Wade v. United States, 504 U.S. 181, 182
(1992). Even if she had pleaded guilty, a sentence reduction was not guaranteed.
Where a petitioner produces no objective evidence, the Seventh Circuit has held
that a statement indicating the petitioner would have accepted a plea agreement is
“self-serving and alone, insufficient to establish . . . a reasonable probability that [s]he
would have accepted the plea.” Paters, 159 F.3d at 1046 (quoting Toro v. Fairman, 940 F.2d
1065, 1068 (7th Cir. 1991)). Because Harris has not shown she was prejudiced by
counsel’s alleged failure to advise her of any potential Rule 35 or 5K1.1 sentence
reductions, her claim fails.
CERTIFICATE OF APPEALABILITY
Harris cannot appeal the denial of her § 2255 petition unless this Court or the Court of
Appeals issues a certificate of appealability. See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1).
Pursuant to § 2253, a certificate of appealability may issue “only if the applicant has made a
Page 15 of 16
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “That
standard is met when “reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner.” Welch v. United States, 136 S. Ct.
1257, 1263 (2016) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
For the reasons detailed above, the Court has determined that Harris did not state any
grounds for relief under § 2255, and reasonable jurists could not debate that conclusion. Thus,
Harris has not made “a substantial showing of the denial of a constitutional right,” and a
certificate of appealability will not be issued.
CONCLUSION
For the reasons stated above, Petitioner Susan Harris’s Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED. The Court
DECLINES to issue a certificate of appealability. This action is DISMISSED with
prejudice, and the Clerk of Court is DIRECTED to enter judgment accordingly.
IT IS SO ORDERED.
DATED:
November 20, 2017
_____________________________
NANCY J. ROSENSTENGEL
United States District Judge
Page 16 of 16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?